S and S
[2003] FMCAfam 135
•7 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2003] FMCAfam 135 |
| FAMILY LAW – Children – contact – best interest of child – physical punishment – allegation of abuse – unacceptable risk – child to be separately represented – child aged 2 years and 10 months. Family Law Act 1975, s.68L Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | GS |
| Respondent: | WS |
| File No: | PAM 1129 of 2003 |
| Delivered on: | 7 April 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 7 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Watts McCray |
| Solicitors for the Respondent: | Heazlewoods |
ORDERS
Until further order:
The child BDS born 20 June 2000 is to reside with the mother.
The applicant father is to have contact to the said child from 9.00 am to 5.00 pm each Saturday.
Both parties are restrained from using any form of physical punishment on the said child.
Pursuant to s.68L of the Family Law Act the child BDS born 20 June 2000 is to be separately represented and I request that the Legal Aid Commission of New South Wales arrange such representation.
That the parties are to attend upon a supervisor or other proper officer of the Keep In Contact program at 27 H Street, P to arrange to attend such counselling about contact issues including issues relating to the upbringing of the child as shall be considered appropriate. Such attendance should take place within a reasonable time of an appointment being made.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1129 of 2003
| GS |
Applicant
And
| WS |
Respondent
REASONS FOR JUDGMENT
This is an application by the father for orders for contact in respect of the child BDS who was born on 20 June 2000. B therefore will not reach the age of three until June this year.
There is no issue between the parties but that B should live with the mother. The father says he should have B with him on the second and fourth weekends of each month from either Friday morning until Tuesday evening or until Wednesday evening if the Monday is a public holiday. He also seeks contact on Father's Day and other contact including the child's birthday and the husband's birthday. The mother seeks that there be contact two hours every Saturday and that that contact should be supervised.
Why then is there such a vast gulf between the parties? What the father says is that the mother complained to him about his methods of disciplining the child and says that from the middle of January through until a few weeks ago he had no contact at all. The mother raises concerns about inappropriate physical discipline of a young child including hitting the child around the head from an early age, albeit with a hand. She also describes in her affidavit the father making efforts to stop the child from using his left hand and physically forcing him to use his right. The mother says that the father's methods of training the child with toilet training or in general discipline involved the use of fear and physical punishment. On one occasion she refers to the father at a time in the middle of last year having smacked the child and she said that the child had a welt in the shape of a hand mark on his thigh for almost four days. That is a vague allegation as far as the date is concerned and indeed the mother was not present at the time the blow was struck, although she says the father admitted smacking the child on the leg.
There are concerns about excessive physical discipline. I am also concerned about there being very little contact. The mother says the child had been having nightmares and expressing fears of being struck by the father. There are annexed to the mother's affidavit lengthy emails concerning certain religious groups about appropriate physical discipline.
Clearly the matter is in early days yet. I must consider the best interests of the child and that must be the paramount consideration. If there is an unacceptable risk that the child would be abused, obviously the Court must take steps to prevent that.
At this stage, there is not a great deal of evidence to persuade the Court one way or another of any physical discipline used by the father is inappropriate. I am concerned however that the matter needs to be looked at in such a way that the Court can be assured that there will be proper contact between father and child and that there will be no risk that inappropriate physical punishment should be used. I am not of the view however that subject to certain safeguards by way of orders which I propose to make, that this is at this stage an appropriate case for me to make an order for supervised contact. I note that there has been supervised contact imposed by the mother and that that has been a unilateral decision.
I am of the view that at this stage there should be some daytime contact, not nearly as much as the father is asking for, and that there should be a restriction on the imposition of physical punishment, and that contact should commence on Saturday and at this stage it should be without supervision, although if it turns out that there are further allegations or if there is any proof that inappropriate physical discipline was being used then obviously the Court will have to reconsider that.
It does seem to me that as there are allegations by the mother of the child being abused by over-vigorous punishment, that this is a matter where the Court should look at having this child separately represented (See Re K (1994) 17 FamLR 537; FLC 92-461).
What I propose to do is make certain interim orders at this stage. Some ongoing counselling about contact issues may be of benefit.
I want to see this matter in approximately four weeks time once the child has had a child representative appointed and once the period of interim contact for a longer period of time has been implemented. I do not want this to go off too far at this stage. I do want to see how this contact regime works. What I propose to do therefore is to bring this matter back in approximately four weeks time, which would take us to Monday, 5 May.
The matter will be back before the Court on Monday, 5 May at
10.00 am for further mention.
I require a transcript of my reasons for this decision.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 April 2003
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