RS and RKM
[2002] FMCAfam 502
•5 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RS & RKM | [2002] FMCAfam 502 |
| FAMILY LAW – Children – contact – residence. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F |
| Applicant: | S R |
| Respondent: | K M R |
| File Number: | PAM 1341 of 2002 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 September 2002 |
| Date of Last Submission: | 5 September 2002 |
| Delivered at: | Parramatta |
| Delivered on: | 5 September 2002 |
REPRESENTATION
| Solicitors for the Applicant: | Marsdens Solicitors |
| Solicitors for the Respondent: | Lansley Lawyers |
ORDERS
Orders 3 and 4 made by the Federal Magistrates Court of Australia at Hobart on 4 June 2001 are discharged.
The applicant father is to have contact with the children H M R born 1 June 1996, C G R born 25 July 1998, W S R born 11 October 1999 and E M R born 11 October 1999 as follows:
(a)each alternate Saturday from 10.00 am to 4.00 pm and each alternate Sunday from 10.00 am to 4.00 pm commencing on Saturday 7 September and Sunday 8 September 2002, until 31 October 2002, such contact to take place in the presence of A G or the father’s sister;
(b)from 1 November 2002 onwards, each alternate weekend from 9.00 am on the Saturday to 5.00 pm on the Sunday, PROVIDED THAT if the Monday following a contact weekend is a public holiday then contact will conclude at 5.00 pm on the Monday;
(c)for a period of not less than two hours on each of the said children’s birthdays;
(d)from 9.00 am to 5.00 pm on Father’s day in each year if that day does not fall on a Sunday when the father would normally exercise contact; and
(e)for one week during each of the school holidays, commencing in the winter school holidays in 2003.
Contact pursuant to Order 2(b) is to be suspended between 9.00 and 5.00 pm on Mother’s Day in each year and during school holiday periods commencing with the winter school holidays in 2003.
School holiday contact pursuant to Order 2(e) once that contact commences is to be for the first week of the winter, spring and autumn school holidays in 2003 and each alternate year thereafter and for the second week of the said school holidays in 2004 and each alternate year thereafter.
School holiday contact during the December/January school holidays is to commence on the second day of January in each year, commencing on 2 January 2004.
For the purpose of exercising contact pursuant to Order 2(a) the change over shall be at the Centacare Children’s Contact Service at L St C.
For the purpose of exercising contact at all other times the change over shall be at the McDonald’s Family Restaurant at N.
Contact is to take place at the father’s residence or at the residence of the father’s parents at W G.
The father is not to consume alcohol or administer to himself any prohibited drug at any time during contact or for a period of 12 hours prior to the commencement of any contact period.
The father is hereby restrained from removing or attempting to remove all or any of the said children from the State of New South Wales.
On any occasion when the children are in the care of the father for contact that involves an overnight stay, the father is to permit the children or any of them to telephone the mother on one occasion.
The mother is to permit the children to telephone the father on his birthday 23 November, on each of the children’s birthdays, and on one occasion each week.
The mother is to give all necessary authority to the Principal of each school attended by any of the said children to provide to the father at his expense copies of all school reports, bulletins and newsletters that are usually provided to the parents of children attending the said school.
At all times when the children are in the care of the father on any occasion of contact, the father shall observe all reasonable requests by the mother for the taking of medication by all or any of the said children, and shall return to the mother any medications supplied by the mother to the father for the benefit of all or any of the said children.
The mother is to inform the father within a reasonable time and in any event within 24 hours of any illness or injury sustained by any of the said children requiring treatment at a hospital or treatment by a medical specialist.
Neither party is to criticise or denigrate or use offensive language to the other party in the presence or hearing of any of the said children or permit any third party to do so.
All documents produced on subpoena are to be returned.
A transcript of the reasons for this decision is to be ordered.
The application is to be removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1341 of 2002
| S R |
Applicant
And
| K M R |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the father.
He seeks orders that he and the mother be jointly responsible for making decisions about the long-term care, welfare and development of the children and he seeks certain orders for contact with those four children.
The children concerned are H M R, born on 1st June 1996, C G R, born 25th July 1998, W S R, born 11th October 1999, and E M R, also born on 11th October 1999.
The parties are divorced. They were married on 16th August 1996, although cohabitation had commenced in 1994. They separated in 2001. A decree nisi dissolving their marriage was pronounced in the Family Court yesterday, 4th September. The relationship between the parties was a somewhat rocky one and the relationship to this day is marked by a considerable degree of hostility. The respondent mother alleges that the father was not interested in the children, that he drank to excess and that he displayed violence to her and on occasions towards the children. She referred to one incident in particular after the parties had separated.
They originally resided in the state of New South Wales but moved to T in May of 2000 and in February of 2001 the father moved back to Sydney. The respondent remained in T until September of that year. The father says that the mother had a history of instability. Indeed, he said that she had suffered from post-natal depression and had on occasions been suicidal and had threatened suicide. He said that in April 2001 the mother had telephoned him and said that, “If you don’t send money down I will do away with myself and the children.” He travelled to H, saw the mother, and arranged to take the two elder children out for the day.
What then happened was that he spoke to the mother on the mobile phone, told her that they were going to the markets at S P and said that he would bring some pizzas home for dinner. In reality, however, he had made arrangements to return to S and take the two children with him. What happened was that he flew to S with the children, telephoned the mother and told her that he and the children were in S that she would have to sort herself out and make her way to S. He admitted in evidence that it was his intention to have this effect on the mother.
The mother commenced proceedings in the Federal Magistrates Court in Hobart. On 4th June 2001 Roberts FM made orders that the children should reside with the mother. The father was not to remove the children from the state of Tasmania. There had been a recovery order made the previous occasion and the children had been returned to the mother. Contact orders that his Honour made were, not surprisingly, somewhat restrictive and that situation remained till the mother returned to S in September of that year. The father in fact travelled to T in September whilst the mother was making arrangements to tidy up affairs in H. The father returned to S with the mother’s consent and taking the two older girls with him.
From then until proceedings were commenced contact was sporadic and the father complained that the mother had continually frustrated his attempts to have contact. The mother said in evidence in these proceedings yesterday that the two older girls, particularly the child H, were frightened that the father would take them away. On 31st May 2002 after the parties had attended confidential counselling a few days before the Court made interim orders. They provided that the father was to have contact with the children between the hours of 10.00 am and 4.00 pm each alternate Sunday. The contact changeover point was to be at the Centacare Children’s Contact Service at L Street, C. The venue for contact was stated as the residence of T C, W G, which is a residence owned by the father’s parents and where at the time his sister was residing. His sister was nominated as a person in whose presence contact should take place.
An order was made that the father is not to consume any alcohol or any drugs during and at least 12 hours prior to exercising contact with the children. An order was also made the father was not to remove any or all of the said children outside the S metropolitan area.
The Court ordered that a family report should be prepared. That report was compiled by a Court counsellor, A P. Ms P in her report indicated that she interviewed both parents, she interviewed one A G, who has become affianced to the father, Mr P, who is a boyfriend of the mother, and she observed the children with the parents and interviewed the older girls H and C. There was no contest to the counsellor’s report. Ms P was not required for cross-examination.
The counsellor provided a positive assessment of the interaction of the children with their father. At pg.14 of the report she said:
Despite the fact the children have not seen a great deal of their father in recent months, their behaviour during observations appeared to demonstrate that they have maintained a deep affection for him. They placed demands on him to be involved in their activities, which was indicative that they have the expectation that he will respond to their wishes and to participate in their activities. There was no indication that they were fearful in their father’s presence, though H indicated during interview that she was frightened that he would unexpectedly take them away. The children will need ongoing reassurance that this will not happen again.
The proceedings involved evidence from the father and his fiancée A G who was formerly married and has two older children from that relationship. The father and Ms G have commenced residing at an address in M. Ms G gave evidence that she has spent some time with the children when the father has been exercising contact. The mother gave evidence and was cross-examined. Her mother was briefly cross-examined. Mr P provided an affidavit and was not required for cross-examination.
The mother still requires for a period of time there should be supervision of contact. She indicates a fear of the father and a fear that the father will behave inappropriately with the children. She points to the father’s actions in taking the children from H to S without her consent as proof of his ability to take precipitous acts. I would comment there was no denial of the fact that this had taken place. The father gave frank evidence about that and indicated his motivation for doing so.
The mother has submitted that the father should have contact during the day each alternate weekend as opposed to alternate Sundays for six hours and that this should last for about six months. That contact should be in the presence of his fiancée A G. The mother also wants the father to participate in a parenting skills course. There had been some disagreement between the parties over medication given to the children or not given to the children which is perhaps not as important as the parties seem to consider.
The mother is not of the view that block contact with the children should commence until the twins, who are W and E who were born in October 1999, commence school. The mother is of the view that overnight contact could commence for a weekend, but that it should be six months away. The mother pointed out the arrangements for changeover at the contact centre could only stay in place for another eight weeks; four more changeovers available. What the mother wants is to have the changeover take place at her mother’s residence in S H.
For the father, Mr Farah pointed out that the parents do not get on.
He acknowledged there was a concern expressed by the child H that the father might take them away again, although he submitted that this was perhaps fanned by the actions of the mother. There had been an issue about the children being sunburned when they were on contact with their father over the Australia Day weekend. Indeed the mother had reported the matter to the Department of Community Services.
It is significant, as Mr Farah pointed out, the mother had sought to suspend the contact as a result of the orders made on 31st May because she said an investigation of her complaints to the Department of Community Services was ongoing and she had been advised, she said, by an officer of that department that as a mother she had a duty of care. I note that whilst there had been a unilateral suspension of contact on two Sundays in the month of August, no application on an interim basis was made to this Court to suspend the operation of those orders.
What are the matters that the Court must take into account? There are a number of principles set out in s.60B of the Family Law Act.
Sub-s.2 includes the children’s right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. The overarching principle is of course set out in s.65E of the Family Law Act. This section lays down that the Court must regard the best interests of the child as the paramount consideration.
Section 68F (2) sets out a number of matters that a Court must consider when determining what is in a child’s best interest. There are 12 of them in all from sub-s.68F (2) (a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered, and the Court has done so in this matter.
Sub-s.68F (2) (a) requires the Court to consider any wishes expressed by the in this case children and any factors such as the children’s maturity and level of understanding that may be considered to be relevant. The children in this case are, to my mind, too young for the Court to give a great deal of weight to their wishes. Only the children H who was born on 1st June 1996 and C born on 25th July 1998 were interviewed at all. The two other children not yet being three years of age were deemed by the counsellor, and quite properly, to be too young to be interviewed.
It is noteworthy that the counsellor reported a positive interaction between the father and the children and also between the father and
A G.
Sub-section 68F (2) (b) states the Court must consider the nature of the relationship of the child with each of the child’s parents and with other persons. It is apparent from the family report that the children have a good relationship with each parent. The counsellor reported a positive interaction between the children and their father and reported their father, and when she was there, Ms G, responding to the children’s wishes and needs in an appropriate way. Indeed, as I said earlier, the counsellor reported the children as having a deep affection for their father.
Sub-section 68F (2) (c) requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect of separation from a parent or any other child. Now, in this case I note that the mother lives in T, although she has indicated that she intends to move closer into the city when the lease expires in about six months’ time. The father has now moved from W G to live in M with his fiancée whom he aims to marry.
The mother's proposal for contact changeover is to be at her mother's residence at S H. This is a matter that caused the Court some concern because the travelling involved for the children would be quite significant. They would have to go in from either M or T in the next six months to S H and the distance one way I was told was about 35 minutes. It seems to be undesirable for contact arrangements to take place where the children have to travel 35 minutes in to S H and then go back out again. They would spend far more time in a car than one would think was necessary. At the same time, the mother has concerns about her safety and with some justification. And there is of course an apprehended violence order.
The Court must consider the practical difficulty and expense of the child having contact with the parent. This is of course subject to the principle the best interests of the child remains the paramount consideration. Despite the hostility between the parents and accepting the fact that I do not propose to make an order that the changeover point be changed to S H, I am of the view that it is possible for there to be regular contact between the children and the father at M, T or to C is not a great distance.
The children are all very young, which is a matter that I look at under s.68F (2) (f). I look at the children’s maturity, sex and background. There are three little girls, one little boy, the oldest of whom, H, is the only one of school age. I must also look at the attitude to the child and to the responsibilities of parenthood displayed by each parent. The mother criticised the father for being uninterested, at times being manipulative and using the children to manipulate the mother. She refers to violence. I look at the occurrence of family violence and the family violence orders and these are referred to in s.68F (2) (i) and s.68F (2) (j). The mother accuses the father of violence; the father denies it.
There is, however, an apprehended violence order in force and that does not expire until next year. That order prohibits the father from going to the mother’s home, and I do not propose to make any contact changeover orders which would cut across the current apprehended violence order. It is noteworthy too that Roberts FM in the proceedings in H in June of last year made an order restraining the father from entering upon or remaining in the place of residence of the mother, the place of employment of the mother and any place of education of the subject children.
I take both of those orders into consideration. I do not propose, as I said, to make an order cutting across the current apprehended violence order and I do not propose to discharge or vary the order made by Roberts FM placing restrictions on the father's behaviour. I would comment that there has been corroborative evidence of the father’s abuse of alcohol, particularly during the time in T, given by the father’s mother. Ms G gave evidence by affidavit that the father did not drink, but she explained that in cross-examination to say that she meant that he did not drink to excess, that he was not an alcoholic. Of course that is not the normal meaning of “not drinking”. Not drinking is usually taken to mean not drinking alcohol. To say that not drinking means not drinking to excess is not a meaning normally understood in colloquial Australian English. The father himself indicates that he drinks alcohol on regular occasions but seldom goes above three or perhaps four cans of beer in a day.
The Court must also look at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to children. Ms Lansley for the mother suggested that unless there were strict restrictions on the father and some supervised contact, that the mother would have such nervousness about the father that there would inevitably be future proceedings.
I am of the view that making an order that would be least likely to the institution of further proceedings, which is set out in sub-s.68F(2)(k) is perhaps a counsel of perfection. It represents a hope by the Court and sometimes as matters settle down and passions cool that future proceedings can be avoided. But at times, especially when children are quite young, things will arise which necessitate a further application to the Court.
I am hoping, however, that the orders that I propose to make will assist to settle arrangements between the parties and provide for the children to have a proper relationship with their father in circumstances that will not cause the mother to fear for their welfare. The Court must look at any other relevant fact or circumstance that the Court thinks is relevant; s.68F(2)(l). Under this heading I do include the fact that the father has formed a relationship with A G. Ms G is referred to with approval in the family report. At pg.14, second paragraph, the counsellor reported:
When Ms G entered the room the children were happy to accept her into their family group. Each of the children took turns in talking to her and involving her in their activities.
Mr R and Ms G both noticed when the children started to have runny noses and assisted the children to find tissues and blow their noses.
The counsellor in her recommendations on pg.15 said:
While four young children are a big responsibility, Mr R would have back-up from his fiancée, Ms G, who appeared to be a responsible parent to her own children and had a mature attitude toward parenthood.
I had the opportunity of seeing Ms G and hearing from her in the witness box. It is fair to say that Ms G did impress as a person who had a responsible attitude towards parenthood. She appeared to be a calm person committed to the father and indeed the mother, through her solicitor, Ms Lansley, conceded that the presence of Ms G, as far as the children were concerned, would be seen as a positive factor. I am of the view that the father forming a permanent relationship with Ms G, as appears to be the case, is a matter that assists him in his desire for more regular and frequent contact with the children. I am of the view that Ms G’s influence would be seen as beneficial, that she would be able to provide sensible and experienced assistance. She has two older children and it is her view that when the children are not on contact seeing their father that her children and the father’s children would be together with them all at their home on a weekend so that it would be a big family weekend.
This seems to me to be a desirable process and it should assist in calming the mother's fears about what she sees as the poor standard of care offered by the father. Of course the Court cannot do anything about the degree of hostility between the parents. It would be hoped, however, that the hostility would calm if the mother sees that contact arrangements can work, that they can be to the benefit of the children, that the children are happy to spend time with their father, that they are well looked after by the father with assistance from Ms G.
I am mindful of the fact the father did take the children away from the mother when they were living in H and took them back to S in an attempt to manipulate the mother to do what he wished to do. One cannot get away from the fact that this is a serious step by a parent, quite irresponsible and indeed outrageous. The father must accept the fact that the mother’s confidence in him would have been seriously shaken by his precipitated acts. He expressed the view in his evidence, somewhat defensively, that the children did not seem to be affected by that. The mother took the contrary view, and indeed the counsellor supports her in that view, that this has led to some insecurity on the part of the two girls, particularly H.
I accept the views of the counsellor here and I am of the view that there is a need to place restrictions on the father taking the children away and I would comment that if the father were to choose to break these orders and attempt to abscond with the children, that the Court would view that most seriously indeed. There is certainly evidence before the Court of the father's heavy drinking in the past, although the evidence now seems to be that his drinking has been curtailed, and that may well be due to the fact that he is involved in a happy relationship with
Ms G who, as I said, appears to be a responsible and pleasant person. Indeed the father should, to my mind, be pleased that he has formed this relationship with Ms G because her presence has had a positive effect on his case.
I am of the belief that contact needs to be phased in. There has been contact on alternate Saturdays. I am of the view that for the next little while contact can be on Saturdays and Sundays and that from the end of October onwards the Court can look at overnight contact. I am also of a view that whilst the father up to now has had an order permitting him to speak to the children on the telephone on their birthdays, I am of the view that it would be appropriate for him to see the children on their birthdays. I am also of the view that some school holiday contact should be commenced.
The counsellor in her report indicated that in her view school holiday contact should not commence before Easter 2003 because of the young age of the twins. The mother’s view is that school holiday contact should not commence until the twins are of school age. I am of the view that that is perhaps excessive, but I certainly understand the counsellor’s reasoning, and the counsellor was unchallenged, as I said, in that it needs a while for the children, especially the younger children, to get used to longer periods of contact and that school holiday contact can be phased in. I am of the view that it should start in the winter school holidays next year. I would certainly be of the view that all four children would be in a position that the other contact arrangements going well, that they would certainly be up to spending a week at a time with their father, that contact should be at their father’s current residence at M where he is with Ms G.
They have other children to assist looking after them. They have Ms G. I am of the view that certainly if they were able to ring their mother when they are on overnight contact that should assist them to form a safe and comfortable relationship with their father. At the same time there needs to be restrictions on the father's consumption of alcohol. There had been in the past a history of his use of illicit drugs, although the evidence is that he does not do so now. Certainly the father must never seek to take the children away as he did last year.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 April 2006
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