Ts and TRL (No.2)
[2003] FMCAfam 514
•9 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TS & TRL (No.2) | [2003] FMCAfam 514 |
| FAMILY LAW – Contravention application – evidence – burden of proof – onus on applicant to establish contravention of order on balance of probabilities – prima facie case made by applicant – onus on applicant notwithstanding – no burden of disproof cast on respondent – onus on respondent to establish reasonable excuse. Family Law Act 1975, ss.70NE, 70NEA May v O’Sullivan (1955) 92 CLR 654 |
| Applicant: | S T |
| Respondent: | R L T |
| File No: | PAM2549 of 2002 |
| Delivered on: | 9 September 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 September 2003 |
| Judgement of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Champion Legal |
| Solicitor for the Respondent: | Mr Frakes |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
Count number 1 alleging that the wife contravened order 9.5 made on 28 April 2003 by contacting the husband on that same date is dismissed.
In respect of count number 3 alleging that the wife contravened the said order 9.5 on or about 2 May 2003, the wife has proved that she had a reasonable excuse for the said contravention.
Count number 3 is dismissed.
Count number 4 alleging that the wife contravened the said order 9.5 on 6 May 2003 is dismissed.
Count number 5 alleging that the wife contravened the said order 9.5 on 7 May 2003 is found proved.
The wife has not proved that she had a reasonable excuse for the above contravention.
Count number 6 alleging that the wife contravened order 7.2 made on 28 April 2003 by failing to attend the husband's place of residence between 6.00 pm and 6.30 pm on 9 May 2003 is found proved.
The wife has not proved that she had a reasonable excuse for the above contravention.
Count number 7 alleging that the wife contravened orders 9.1 and 9.6 made on 28 April 2003 and on 16 May 2003 is dismissed.
Count number 10 that the wife contravened the said order 9.5 on 5 June 2003 is dismissed.
Count number 14 alleging that wife contravened the said order 9.6 on 11 July 2003 is found proved.
The wife has not proved that she had a reasonable excuse for the above contravention.
Pursuant to section 70NG(1) of the Family Law Act 1975 the Respondent is to attend upon the provider or other proper officer of the K I C P at H Street P being a post-separation program within one (1) month of the date of this Order for the purpose of an initial assessment of her suitability to attend such a program and, if assessed to be suitable, to attend such program as directed.
The Applicant may attend the said K I C P if he wishes to do so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2549 of 2002
| S T |
Applicant
And
| R L T |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the father of two children, M and M to deal with the mother for a number of contraventions of parenting orders which are alleged to have taken place immediately following the making of orders by consent in the Family Court on 28 April of this year. The proceedings were before the Court on 12 August on which occasion I found that a prima facie case had not been made out in respect of a number of allegations.
I also found in respect of several other allegations that a prima facie case had been made out. There were some other allegations yet again where no submissions were made at the conclusion of the applicant's case.
What this means is that when the matter came back before the Court last Friday, 5 September, there were eight of the original 14 applications still to be heard. They were counts 1, 3, 4, 5, 6, 7, 10 and 14. On that occasion the respondent mother provided a further affidavit she having previously sworn and filed an affidavit before the proceedings had commenced. She was cross-examined in certain matters and there were written submissions provided by the respondent's solicitor and in fact I heard oral submissions from both.
I also heard some evidence in reply from the applicant.
There were some matters raised of a technical nature, in each case they were raised by Mr Campton of counsel for the applicant and I made some rulings but I believe it is important that I should set out some of the principles that I consider apply in proceedings of this nature and this decision.
First of all I refer to the rule in Browne v Dunn (1893) 6 R 67. There was an objection made to certain material in the mother's later affidavit which was not of course available on 12 August on the basis that counsel for the applicant said that material had not been put to the applicant in his cross-examination. It was suggested that it was then too late for that evidence to be given. I ruled against that submission although it was put to me that the rule in Browne v Dunn (supra) had been breached. The rule in Browne v Dunn (supra) is an important rule of practice.
In New South Wales in Australia generally the formulation by Hunt J, of the Supreme Court of New South Wales in the decision of Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSW 1 is regarded as a formulation of the rule in Browne v Dunn (supra) as it applies in Australian Courts. His Honour at page 16 of the report said this:
“Unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence or the inference to be drawn from it and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn”.
It should be made clear that the rule in Browne v Dunn is not a rule to be applied with such particularity that unless a particular question has been put to a witness in cross-examination that evidence-in-chief from a respondent on that subject cannot be led. The rule is a rule that requires the subject matter of the contradictory evidence to be put so that the witness is aware of what the situation alleged or to be alleged by the respondent is to be and has adequate opportunity to meet it.
In civil proceedings where there is a right of reply or right of re-opening a case any omissions made in respect of the rule in Browne v Dunn (supra) can quite easily be remedied. I note that at the time the objection was made the affidavit of the respondent had been tendered but the respondent herself had not given oral evidence. I indicated at that stage that it would still have been possible to recall the applicant for him to be cross-examined on that particular issue and that it would not be necessary to wait until any evidence in reply could be given. It is quite clear however that the applicant was present and was available to be cross-examined.
I still adhere to that view and I am fortified in that view by the decision of Hunt J, in Allied Pastoral Holdings (supra). As His Honour went on to say (at pages 22 to 23):
“The basic principle is that at some stage during the course of the evidence the witness must be given a proper opportunity to deal with the material to be relied on for the challenge”.
My understanding is that while evidence-in-chief is to be given by affidavit the affidavit is subject to challenge and objection on various evidentiary grounds. My view is that until the objections have been completed the affidavit is not received by the Court as the applicant's evidence-in-chief, hence until the objections have been made the deponent of the affidavit cannot be said to have given their evidence-in-chief. Indeed it is often the case that if leave is sought to adduce oral evidence for updating material that it could not of otherwise been contained in the affidavit. In any event counsel for the applicant chose not to call the applicant at that stage but chose to call him to give evidence in reply and indeed evidence was put to him, the questions were put to him relating to the issue which had been said not to have been covered.
I am satisfied therefore that in the conduct of the proceedings any breach of the rule in Browne v Dunn (supra) was effectively remedied so as to do justice to the applicant when presenting his case.
Another issue that was raised related to the situation which is not uncommon in the criminal jurisdiction about the question of a prima facie case and what evidence it is open to a respondent to lead. It was originally thought and dating right back to the early decision of Sahari v Sahari (1976) FLC 90-086 that proceedings of this nature required proof beyond reasonable doubt. That is not my understanding of the law, contravention of parenting proceedings are regarded as a civil contempt and evidence is given on the balance of probability. Nevertheless a form of quasi criminal procedure is adopted in these proceedings and the concept of the prima facie case still forms part of the practice of hearing contravention applications.
It is also appropriate in contravention proceedings to deal with the question of whether there is a reasonable excuse for a contravention. It is beyond doubt that the onus of proving a reasonable excuse lies on the respondent, section 70NF of the Family Law Act makes that clear. Sub-section (1) says that the particular subdivision applies:
If an order under this affecting children has been made.
Paragraph (b):
A Court having jurisdiction under this Act is satisfied that a person has whether before or after the commencement of the Act committed a contravention of the primary order and –
Paragraph (ba) –
the person does not prove that he or she had a reasonable excuse for the current contravention.
Now the standard of proof of no reasonable excuse, is the balance of probabilities. This is set out in section 70NEA. That section says:
The standard of proof to be applied in determining proceedings under this division whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities.
It is quite clear that there is an onus on a respondent alleging a reasonable excuse to prove that to the requisite standard. It does not mean however that where a prima facie case has been made out that all that is left to a respondent to do is to attempt to prove a reasonable excuse because that is not what a prima facie case means and it is always open to a respondent to give or call evidence which would persuade a Court on having heard the totality of the evidence that notwithstanding the fact that a prima facie case had been made out that at the end of the evidence the Court could not be satisfied on the balance of probabilities that there had been a contravention of the order.
The onus of proving a contravention remains with the applicant at all times. Indeed the question of a prima facie case in law in Australia goes back to the decision of the High Court of Australia in May vO'Sullivan (1955) 92 CLR 654. At page 658 the High Court said:
“It is not really correct to say that the raising of a prima facie case throws upon the defendant the onus of making an answer. When at the close of a case for the prosecution a submission is made that there is no case to answer the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject a ruling that there is a case to answer has not effect whatsoever on the onus of proof which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue the defendant may or may not call evidence. Whether he does or does not the question to be decided in the end by the Tribunal is whether on the whole of the evidence before it is satisfied beyond reasonable doubt the defendant is guilty”.
In civil proceedings the situation is the same. The onus is on the applicant to establish a contravention of an order on the balance of probabilities, where a prima facie case is made by the applicant the onus on the applicant remains, there is no burden of disproof cast on the respondent, the only onus on the respondent is to establish a reasonable excuse if the respondent chooses to do so. That being the case, notwithstanding the fact that I have found a prima facie case in respect of a number of matters it is still open to me to consider on the basis of the evidence presented by the respondent whether I should be satisfied on the balance of probabilities that there has been a contravention of the order. At the same time I consider on the evidence of the respondent whether in any case she has made out a reasonable excuse. They are two different tests although the evidentiary standard is the same.
Having made those points I hope clear, I look at the specific allegations that are still to be decided. Count number 1 alleged that the wife contravened order 9.5 made on 28 April 2003 in that she without reasonable excuse at 8.15 pm on 28 April 2003 contacted the husband. Order 9.5 which was made by consent on 28 April is an order which restrains each of the father and mother from:
Contacting the other by any means save in the event of a medical emergency other than by pre-paid ordinary post and solely for the purpose of advising the other parent of a school event, by placing nothing more than a copy of any note received by that parent from the school in the child's school bag.
Now I indicated when the proceedings were earlier before me, and I think it was agreed by the parties’ legal representatives, that the use of the word “and” after “by pre-paid ordinary post” was in fact an error and that the ordinary English meaning of the two sub-paragraphs would indicate that the word “or” should have been used because it is no part of pre-paid ordinary post to place a letter in a child's school bag. What the applicant contends is that there is a restraint on the respondent of telephoning on the landline telephones in the house of which there are two as that would be contacting the other party. Where there is a telephone call and the applicant takes the call it is submitted that that is a contact which is proscribed by order 9.5.
I did have the opportunity of giving some consideration to that when I considered whether or not there was a prima facie case. I am of a view that contact contains with it an element of intention at least so far as these orders are concerned. There is nothing in the orders which would indicate to me that contact is a word of strict liability. If that were so the absurd situation would be reached where the parties would come upon each other unexpectedly in public by walking around the corner and inadvertently make contact. That of course is not what the orders are meant to mean.
There is evidence from the respondent that it was her intention when she rang on that particular telephone to speak to the children that night, it was the applicant who answered the telephone. It was at all times on the respondent's evidence her intention to speak to the children and not to their father. I am of the view that I cannot be satisfied on the balance of probabilities there is a breach of that order and that allegation will be dismissed.
Count number 3 relates to a different breach that is alleged. That was a matter where I found there was a prima facie case where the mother wished to forward some information to the father which had been received in the mail. The information had originally been forwarded in the mail and what she did was cross out the address that no longer applied, addressed the envelope to the father and placed the envelope in a letterbox. I rejected the submission on the prima facie case proceedings that that was a de minimis matter on the basis that all that was missing was the placing of the stamp.
Dropping an envelope in someone's letterbox is not sending it by pre-paid ordinary post. To send something by pre-paid ordinary post one fixes the appropriate postage to the letter that is properly addressed, deposits in a letterbox or otherwise hands it to an employee of Australia Post and Australia Post delivers it. I am of the view that a contravention has been made out. I am equally of the view however that the contravention is so technical that the mother's inability to understand the ramifications of her actions, which would otherwise seem to be innocent in the circumstances, are such that I should find that she had a reasonable excuse for contravening the order in that she did not at the time of the contravention understand the obligations imposed by the order on her pursuant to section 70NE(1)(a). I am of a view therefore that I am satisfied that she did not understand the obligations imposed by the order and in the circumstances I am satisfied that she ought to be excused in respect of the contravention.
I find, therefore, that there is a reasonable excuse and I propose to dismiss that count.
Count number 4 relates to a telephone call on 6 May. It is the question of the intention to speak to the children and I indicated in my earlier decision that it was a relevant consideration in assessing the intention of a party to contact the other party as to whether there was a knowledge that the children were present in the house at the time. If there was a knowledge that the children were not there then it would be very difficult for the respondent to establish that she had no intention of contacting the applicant.
I am of the view however that the respondent has given in evidence of her intention to speak to the children knowing that they should have been in the house. I am not satisfied therefore that this was a contact of the applicant other than an inadvertent one, I am not satisfied that on the balance of probabilities that a contravention of the order has been made out. Count number 4 is dismissed.
I turn to count number 5 which related to the following day, 7 May. There was evidence before the Court there were two telephone lines in the house one of which was known as M's phone the other one which was more an office phone. The evidence before me is that the father had received not one telephone call on that day but two. The father describes the telephone rang, he answered it at 7.23 am on
7 May and the respondent said to him, “Can I speak to M?” He said, “You are not to call here”, the respondent said “I'm not calling you I'm calling M.” The applicant said “Please call her on her mobile.” The respondent said, “I'm entitled to call M on this phone.” He said, “you're not and please call her on her mobile”, and hung up the phone.
He goes on to say:
“After I hung up the telephone it immediately commenced to ring again. I answered the telephone with the word, 'yes', the respondent said to me, 'can I speak to M?' I said please ring her on the mobile. The respondent said to me, 'no I'm entitled to speak to M on this phone.' I said no and hung up”.
Mr Campton of counsel for the applicant put to me that it was this action that the Court should regard most clearly as a contravention of the order in that there was a knowledge on the part of the respondent that the applicant was at the phone, would answer the phone as he had just answered the phone and a conversation had taken place. I am of a view that the second telephone call following immediately upon the first with the respondent being in the knowledge that if the applicant had answered the phone once, if she immediately rang again he would immediately answer it again, does constitute a contravention of the order and I find that allegation proved.
Count number 6 relates to a breach of order 7.2 on 9 May 2003. The wording of that count is that the wife contravened order 7.2 on 28 May 2003 in that she without reasonable excuse between 6 pm and 6.30 pm on 9 May 2003 failed to attend the husband's place of residence. Order 7.2 has been written in the context of a shared residence situation where the children change residence on a weekly basis. It places an obligation upon the parent with whom the children are residing who:
“Shall by between 6 pm and 6.30 pm upon the day upon which their period of residence commences, attend at the residence of the other parent in order that the children should be able to collect all of their school books and tuition materials, sporting, clothing and equipment and any other item required by the children for a regular and scheduled commitment or which either child has requested the parent to provide”.
What the father who is the applicant says happened on that occasion was that prior to 6 pm on 9 May he had all the children's school books, tuition materials, sporting, clothing and equipment available for collection by the children. At 7.15 pm neither the mother nor the children had attended at his residence to collect these item. He said he had commitment on the night of 9 May and left his home at 7.15. He returned to his home at 9.30 am on Saturday, 10 May and the items that he had placed awaiting collection by the mother and the children were no longer there.
The mother in her evidence expresses the belief that the father had just got his times wrong. She says:
“It's my recollection that I collected them prior to 6.30 pm. We would not have been able to attend our activities on time if we had not collected them on time”.
I indicated earlier that in my view the obligation placed on the parties by the orders does relate to a strict time. There is a dispute over times. The applicant says that he left at 7.15 and the items had not been collected. Mr Frakes submitted that they could have been collected at 7.16, as well they might. The respondent's evidence was that she thought she collected them within that half hour envelope and thinks that the applicant has got his times wrong. I am of the view that on the evidence I prefer the applicant's evidence as it is tied to a particular event over the respondent's evidence and I am satisfied on the balance of probabilities that the contravention has been made out. I find that contravention proved.
Count number 7 relates to an incident said to have occurred on 16 May, that the wife contravened orders 9.1 and 9.6 made on 28 April 2003 in that she without reasonable excuse on 16 May 2003 caused the children M and/or M to allow or seek to alter arrangements providing for their care and/or cause the said children to convey a communication to the husband. The allegation is that on 16 May the child M said to the father:
“Mum said I'm to go with her to M's performance tonight and I should be staying here”.
The father disagreed and the child returned to collect the bag and later came back again with a message saying:
“Mum said that you agreed that I should go with her tonight to M's play”.
M then went back to the respondent and M then returned and said:
‘Mum says I'm with here after the confirmation on Sunday.
I said, yes you are”.
The mother says she had no intention that M should convey any messages and did not give him any messages to convey. I am of a view that the evidence on that basis does not allow me to be satisfied on the balance of probability that there was an intention to convey a message rather than the mother making a statement as to what her belief was and the child reporting that statement. As I am not satisfied, that allegation is dismissed.
Count number 10 refers to an allegation on 5 June 2003 that the wife contravened order 9.5 made on 28 April 2003 and that she without reasonable excuse at 7.45 am on 5 June 2003 contacted the husband. This is an allegation again of a telephone call on line, the telephone number ending 2901, the one that is known as M's line. I am satisfied there was no intention to speak to the applicant but an intention to speak to the children whom the mother would reasonably expect to be there at the time. Count number 10 is dismissed.
Count number 14 is an allegation that the wife contravened order 9.6 made on 28 April 2003 and that she without reasonable excuse on
11 June 2003 cause the child M to convey a communication to the husband. Order 9.6 is a restraint on both parties from:
“Causing the children or either of them to be used to convey any communication whether oral or written to the other parent”.
Subject presumably to the communication - the method set out in 9.5. The circumstances alleged there that on 11 July relate to a telephone call to the father from the child M, the father reported that M said:
“Dad I want to show you the dance I did when we get home. Mum wants to know what time you will be picking us up”.
The father said:
“I won't be picking you up, mum should drop you and M off at 6.30 pm”.
M said:
“What about our stuff?”
The father said:
“That should be brought over when mum drops you off”.
M then said:
“Hang on”.
M then said:
“Mum will drop us off at 6.15 pm is that all right?”
The mother says in her affidavit is that she can recall M having a telephone conversation with the husband. She was working on her computer at home. M was standing nearby. She did not tell M to say anything to the husband, she was not listening but she can recall M saying to her words to the effect:
“Mum what time will we get home to dad's place?”
And I said words to her to the effect:
“About a quarter past six meaning 6.15 pm”.
She said:
“I did not tell her to say anything to her father. I can recall M speaking into the telephone and saying words to the effect, 'Mum will drop us off at about a quarter past six is that all right?”
M then said:
“Okay”.
And M then said to her:
“Dad says it's okay”.
The mother says that she was not intending to send the message. I am of the view that the respondent knew M was speaking to the applicant, there were questions being raised and it would be within the respondent's mind that the messages were being relayed to the applicant. I am of the view that the respondent must have known or must reasonably be expected to have known that the messages were being conveyed to the application and I found that allegation proved.
That leaves us with three contraventions having been found proved where the respondent has not proved she had a reasonable excuse for the contraventions. Count number 5, count number 6 and count number 14.
I can assume from the timing of the allegations of the breach of that order that no Court having jurisdiction under the Family Law Act has found an earlier breach of those same orders of the primary order by the respondent and that the first contravention alleged took place within hours of the orders having been made. It would seem to me therefore that I should deal with the matter under stage 2 of the parenting compliance regime rather than stage 3 unless it is submitted to me that I should be satisfied that the respondent has behaved in a way that showed a serious disregard for her obligation under the primary order.
So that leaves us with three matters that come under stage 2 of the parenting compliance regime. Looking at them count number 6, the failing to attend between 6.00 pm and 6.30 pm, to my mind, is of such a minor nature that I am not satisfied that I should make any order following on from that contravention. As Mr Frakes submitted to me on more than one occasion during the course of these proceedings de minimis non curat lex. That leaves us with two contraventions that have been found proved where I am satisfied that a reasonable excuse has not been proven and that to my mind I should therefore consider making an order.
Well I have heard the submissions. I am going to make a couple of orders but I am going to go off the bench for just a couple of minutes so that I can frame them correctly and it is certainly my intention to frame the orders in such a way that they cannot be misunderstood and that they will assist the parties in a mode of living which will assist the children. Of course if ever there was a case where I believe that the children need to have a voice this is it, and I propose to make some comments about that in about two or three minutes time.
In these proceedings after two separate hearing days I have found two out of 15 allegations of contravention of parenting orders made in the Family Court proved without reasonable excuse. I am satisfied that there has been no earlier determination that a Court having jurisdiction under the Act that the respondent has without reasonable excuse contravened the primary order and I am not satisfied that the respondent has behaved in a way that showed a serious disregard for her obligations under the primary order. As such I have chosen to deal with this matter under stage 2 of the parenting compliance regime.
Where a Court deals with a matter under stage 2 of the parenting compliance regime the powers of the Court are set out in section 70NG of the Family Law Act. There are three orders that a Court can make. A Court can make all or any of these orders. The first one requires the respondent and another specified person to attend a post separation parenting program. The second empowers the Court to make a further parenting order that compensates for contact foregone as a result of the current contravention. The third allows the Court to adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order that discharges, varies or suspends the primary order.
In this case the order is under section 71NG(1)(b) to make a further parenting order for compensatory contact is just irrelevant, no one has missed out on contact. This is a situation where the children have a shared residency between one parent and the other and there is nothing to show me that either of the contraventions that I have found have indicated the children have missed out on spending time with one parent or another when they should have. If ever there was a case where a post separation parenting program should be considered I am of the view that this is it.
I am also satisfied that the orders that were made by consent in the Family Court on the 28th April, whilst entered into in good faith with the intention of providing some clear guidelines to the parties as far as their dealing with their children are concerned, have unwittingly imposed such restrictions that the potential for technical breaches of the orders is all too real and indeed it may well be argued that the mischief sought to be remedied by the orders that I have found have been breached is relatively minor.
I do propose to make an order under section 70NG(1)(a) requiring the respondent within one month to attend upon the provider of the keep in contact program at H Street, P, being an approved post-separation parenting program for the purpose of an initial assessment as to the suitability of the respondent to attend such a program and direct her to attend such program or part of such program as she my be found suitable to attend. I further direct that the applicant may attend the keep in contact program should he wish to do so.
I propose to adjourn the proceedings generally and grant leave to the parties on 14 days notice to approach the Court for the purpose of making application to vary the primary orders in some way which may benefit the parties. I would warn the parties now, however, that if a resumption of the litigation is to start on a defended basis that it would be my view at this stage that further litigation rather than consent orders should be dealt with back in the Family Court and I would give favourable consideration to transferring those proceedings back if the parties cannot agree.
But there is something that goes above technical findings, evidentiary rulings, quotes from the High Court and nit picking about whether orders have been technically breached or not, and that is the best interests of these two children, a boy and a girl. I had tendered to me the Family Reports prepared for these proceedings in the Family Court the first of which was dated 20 January, the second the supplementary report was made on 24 April. In each case it is quite clear that there is a history of litigation between the parties, certainly it has gone back to 1999, if not earlier.
It is significant that whilst there has been hurt, inconvenience and suspense sustained by the parties, as Mr Frakes submitted to me on behalf of his client, that the children have suffered what in the latest euphemism we hear in the news could be described as collateral damage and the damage seems to be of a psychological damage that the counsellor, Mr G, warned about in not one of his reports but both of them. In his earlier report there is a poignant description on page 9 of the parties daughter expressing a wish for equal time with each of the parents, adding forthrightly that she disliked the interviews because her attendance prevented her participation in holiday activities with her friends. Then she began to cry, she explained that the present litigation and interviews resurrect emotional pain that the litigation of 1999 engendered for her.
The counsellor in his assessment finishes up his earlier report which he dated 14 January with these words:
“I can merely urge the parties to develop an arrangement that unshackles M and M from their parent's conflict, this conflict may harm their children psychologically”.
There was a further report prepared, I am not entirely sure why, but there was a further report prepared which was released on the 24th April, immediately prior to the commencement of the proceedings on the 28th. The couple's daughter, M, complained about matters that cause her stress. She commented on page 10 with anger:
“It has been like seven years since they divorced and why can't they like get over it”.
She wants her parents to stop complaining about each other and “to stop acting like two year olds.”
“For M the present litigation and its interviews remind her of the pain that her parents’ final separation caused her. That fight and its ramifications 'are in the back of my mind all the time' she said”.
The brother expressed similar concerns to the counsellor:
“M also complained that he could no longer tolerate his parents’ fights 'I just wish they'd stop' he said. These fights make him feel 'angry and sad at the same time' because they shouldn't really have any reason to fight'”.
The counsellor discussed the children, expressed the concern then in April:
“M must be close to the end of whatever tolerance she has left for the litigious nature of her parent's interaction. She values them but she also associates them with litigation which has been a constant and long running source of distress for her. And as for her brother, like M, M's tolerance for his parents’ conflict is diminishing rapidly”.
The counsellor went on to express the view that:
“If the conflict were to continue I doubt that M's wit will continue to minimise his high level of distress. Furthermore I doubt that M can separate herself from any distress that burdens M”.
And the counsellor finishes up his second report with the words:
“Indeed the children would benefit more if their parents ended their conflict”.
One reason for Family Reports in parenting proceedings is so that the children may have a voice. The children have had a voice in the parenting proceedings that were in the Family Court and their voices are being heard out of these reports today. I cannot recall in recent weeks and months dealing mainly with parenting proceedings two more eloquent cries from children about the concern that this ongoing war between their parents is causing them. It may be costing the parents money, it may be requiring them to be at Court, it may be taking up the time of the Court, the concern I have however is the distress that these proceedings are causing these two children and I regard that as the most serious concern of all.
I do propose to make those orders but it is more important to urge these parents to consider a need to call a halt to the hostilities so that their children can get on and enjoy the life with the parents that they have. They obviously love both parents but they cannot stand being in a war zone any more.
I therefore propose to make the Orders that are set out at the commencement of this decision.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 18 November 2003
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