VC & JC - [2004] FMCAfam 729

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VC & JC

[2004] FMCAfam 729

FAMILY LAW – Children – contact – allegations made by mother against father of physical abuse and inappropriate discipline – mother seeking no contact.

Applicant:

Respondent:

File No:

PAM 5859 of 2004

Delivered on:

23 December 2004

Delivered at:

Parramatta

Hearing date:

20 December 2004

Judgment of:

Sexton FM

REPRESENTATION

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr J Henness

Solicitors for the Respondent:

R J Russell Solicitors

ORDERS UNTIL FURTHER ORDER:

That the children JAC [“JAC”], born 8 May 1996, KFC [“KFC”], born 16 February 1998, and LJC [“LJC”], born 8 October 1999, reside with the mother.
That JAC, KFC and LJC have contact with the father as follows:
(a)On Christmas Day from 2.00p.m. until 7.00p.m.
(b)On Tuesday 28 December from 10.00a.m. until 7.00p.m.
(c)From 7.00p.m. on Saturday 1 January 2005 to 7.00p.m on Sunday 2 January 2005.
(d)Each weekend from 9.00a.m. Saturday until 4.00p.m. Sunday commencing 8 January 2005.
(e)From 6.00p.m. on Tuesday 25 January 2005 to 7.00p.m. on Wednesday 26 January 2005.
(f)At any other time by agreement between the parties.
That the father collect the children from the mother’s residence at the commencement of contact periods and the father return the children to the mother’s residence at the conclusion of contact periods.
That the father be entitled to attend with LJC at his first day at school.
That the father be permitted to telephone the children on Tuesday and Thursday evenings each week between 6.00p.m. and 7.00 p.m. and the mother to facilitate such telephone contact and provide privacy for the children.
That each party be restrained from changing the schools of the children from their present schools without the consent in writing of the other party.
That on or before 24 December 2004 the father and the mother contact Unifam at Parramatta to arrange an appointment within 30 days for an initial assessment as to suitability for a post-separation parenting program.
That the mother and the father attend the appointment at any reasonable location nominated by Unifam and complete the assessment.
If assessed as suitable for a program the mother and the father must attend that program as the provider directs as soon as practicable.
The program provider is requested to notify the court in writing as soon as practicable if either party has failed to attend the initial assessment or failed to attend the program and the Registry manager must re-list the proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
Both parties are to provide proof to the Court of participation in accordance with the requirements of the parenting course.
That the father be prohibited from denigrating the mother or any member of the mother’s family in the presence or hearing of the children or any of them.
That the mother be prohibited from denigrating the father or PM or any member of the father’s family in the presence or hearing of the children or any of them.
That the father spend the whole of every contact period with the children.
That the father be restrained from taking the children or any of them to the residence of PM during any contact period.
That both parties be restrained from discussing these proceedings with any of the children or from showing them any documents or reports related to these proceedings.
That the father be restrained from imposing any physical discipline on any of the children for any reason whatsoever.
That both parties give the children only positive comments about any gifts given to them at Christmas by the other party or by friends or family of that other party.
That each party have liberty to restore the matter to the list on 72 hours notice.
That the proceedings be adjourned to Thursday 17 February 2005 at 9.30 a.m. before me for further mention.
That pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5859 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings for interim parenting orders in relation to three children JAC aged 8, KFC aged 6 and LJC aged 5. Both parties agree that the children should live the majority of the time with their mother. There is a dispute about how much time the children should spend with their father. The mother seeks orders that the children have no contact with their father pending his completion of an approved parenting course. The father seeks orders that provide for the children to live with him for short block periods during the Christmas and New Year period, for each weekend during January 2005, for the New Year’s Day public holiday and for daily telephone contact. The father also seeks other specific issues orders.
The proceedings were commenced by the mother who filed an Application for residence on 24 November 2004. The father filed an application for short service and for interim orders in relation to contact on 7 December 2004 and a Response to the mother’s Application on 9 December 2004. The father’s solicitor provided a Minute of Proposed Orders on a short term interim basis at the hearing.

Background facts

The wife was born on 18 February 1972. She is 32 years old.
The husband was born on 10 August 1972. He is also 32 years old.
The parties commenced living together in January 1991 and married on 22 January 1994 in Sydney.
The parties separated in May 2003.
There are three children of the marriage, JAC born 8 May 1996, aged 8 years, KFC born 16 February 1998, aged 6 years and LJC born

8 October 1999, aged 5 years.
Since the parties separated, the children have been living with the mother and until early October 2004, having very regular contact with their father, usually each weekend.
There are no current orders.
The father has a girlfriend PM who has a daughter aged 6 living with her. Ms PM is not living with the father though they spend some nights together every week.
The mother works on Saturdays only. The father is employed full time Monday to Friday during usual office hours.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. These rights apply whether the parties are married or separated. The right to know both parents has been recognised as a fundamental consideration and it is only in the most exceptional of circumstances that orders would interfere with that right.
Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering how much contact should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2) of the Act. Its subsections set out a list of matters the court must consider to the extent each subsection is relevant to the particular case. I have considered each of those subsections in reaching my decision.

Issue

The mother has raised concerns about the father’s parenting skills. The question for the Court is whether the behaviour of the father towards the children is of such seriousness to warrant contact being suspended altogether or to warrant an order for substantially reduced contact.

Evidence– parenting and property

The wife relied on:
·Her Affidavits filed 24 November and 20 December 2004.
·A Notice of Child Abuse filed 15 December 2004;
·A letter dated 15 December 2004 from MB, psychologist addressed to ‘The Mediator, Family Law Court.’
The husband relied on:
·His Affidavits filed 20 December and 7 December 2004
·The affidavit of PM filed 7 December 2004
The parties legal representatives made submissions. As is usual in interim proceedings of this kind, neither party gave oral evidence.

Evidence and findings

At the commencement of the hearing, Mr Henness, counsel for the mother asked me not to order any contact for the children with their father until the father had completed a parenting skills course. Counsel relied on the letter from Mr MB, psychologist to submit that if any contact were to be ordered for the eldest child JAC, it should be gradual and limited. The mother did not raise any specific concerns about the two younger boys and in fact told the psychologist she consulted for JAC, that she was not opposed to the two younger children having contact with their father. The mother opposed any overnight contact for the children on an interim basis.
The father’s legal representative, Dr Altobelli said contact had for the most part worked well from the time of separation until early October 2004. The children were spending time with their father on most weekends. On 2 October 2004, contact stopped altogether and the father has not seen the children since. Dr Altobelli submitted that contact should be resumed as soon as possible as there was a risk that the previously strong and loving relationship between the children and their father would otherwise be threatened. He said his client was prepared to consent to restraints on his behaviour, and was prepared to undertake a parenting course.
There were a number of allegations about the father’s conduct towards the children, some of which were conceded by the father in his affidavit material. The mother said the father assaulted her in October 2003 which resulted in her obtaining an apprehended violence order against him for 10 months on 30 October 2003 prohibiting him from entering her residence. The father deposed to an unfortunate incident where there was slapping, pushing and shoving on both sides. The father regretted the incident realising he handled it badly. He annexed the mother’s statement about the incident to his affidavit. The father then deposed to approaches by the mother while the order was in place which suggested she no longer held the apprehension.
Sometime in 2003 [the father stated May 2003, the mother stated October 2003 but the date itself is not material] the father said to JAC “Shut up, or I will get the gun and put ten bullets through your head.” The father said he was dealing with JAC’s behavioural problems at the time and it was a particularly stressful time. He says at paragraph 7 “VC and I were constantly disagreeing about finances and parenting. It was a silly thoughtless comment made by me at a particularly vulnerable time. It thought that the matter had been resolved with both JAC and myself apologising to each other.”
The father said JAC mentioned this incident again on Friday evening 24 September 2004. JAC said he remembered when the father had said about putting 10 bullets in his head. The father asked him why this was on his mind again now, and JAC said “Because Mum keeps on reminding me about it.” The mother denied that she had done so.
The mother referred to this incident in the Notice of Abuse filed in these proceedings. She also alleged that in September 2004 the father again threatened JAC by saying “if you don’t shut the fuck up now I will go and get the gun and put the ten bullets through your head.” The mother said she rang the father who denied it. She contacted the Department of Community Services to notify them of the remark made and of JAC’s report of the father putting soap down his throat. The mother said the Department advised her to see her solicitor or the police. On 15 October 2004 the mother took JAC to Campbelltown police. The police took a statement from JAC which the mother attached to her affidavit. JAC said in his statement “when I went to my dads house he would stick soap in my mouth and make me bite it in half and then make me swallow it. It was a big piece of soap. That happened to me about four or five times. I saw my dad shove soap in both my brother’s mouths some times too…” JAC also reported the remark about the bullets I have already referred to. JAC said the remark was made about a year before. He did not refer to the remark being repeated in September 2004 as deposed to by the mother. JAC further complained about seeing his father and his girlfriend without their clothes on, and kissing. I infer from what JAC said that this event occurred when he had woken in the night and gone into his father’s room. JAC also reported his father hitting him on the face and nose with his hand closed, causing his nose to bleed.
The mother deposed to JAC telling her his father has a secret room at his girlfriend’s house where the father and his girlfriend spend time together and lock the door. The mother says JAC has reported seeing his father and girlfriend in the shower together. The mother said JAC has had nightmares and has been behaving badly towards his brothers over the last 12 months. The mother says all three children have refused to have contact with their father since October 2004 although there has been some telephone contact. The mother says she heard JAC say to his father “I’m scared to go with you Dad because you might put the gun in my head.”
The mother alleged in her affidavit filed 20 December 2004 that the father made a threatening remark about her father in or about late September 2004. The mother said this remark was made by the father in the presence of the children and triggered further distress in JAC who told her he was scared the father was going to kill his grandfather. It was submitted to me by Dr Altobelli and I accept that the mother did not include this allegation in her affidavit sworn

3 November 2004 which one might have expected given its seriousness.
The mother said that since September the father has been discussing contact and residence issues with the children on the telephone causing them distress. The mother said the boys have been displaying upset behaviour since contact in September 2004.
The mother, without consultation with the father, had taken JAC to a psychologist, MB, on three occasions since the allegations were made by JAC to the police. The father subsequently consulted Mr MB on one occasion. Mr MB wrote a letter to the Court dated 15 December 2004. Mr MB reported that JAC is opposed to contact with his father. JAC has told Mr MB his reasons are as set out in his police statement, already referred to. Mr MB persuaded JAC to have some telephone contact with his father which apparently occurred successfully. JAC’s position had however, hardened against his father when Mr MB met with him on 14 December 2004. JAC said he wanted no contact at all with his father, even “if the Court tells me to”. He said he had read a document and his father was lying. Mr MB recommends that JAC should be exposed again to his father on a very gradual basis over perhaps months. Mr MB is not however, an impartial observer in these proceedings. He was engaged by the mother without consultation with the father. He has accepted as fact the allegations made by JAC in his police statement. He appears to have no knowledge of the inconsistencies between this statement and the mother’s evidence. He appears to be unaware of any possibility that JAC has aligned with the mother against the father. In all these circumstances, I am not persuaded to adopt the course proposed by Mr MB.
I questioned Mr Henness as to whether the mother had shown the father’s affidavit to JAC. Counsel said he was instructed JAC had picked it up and read part of it. It was entirely accidental. I do not accept that submission. I am satisfied the mother has involved JAC in these proceedings by reading parts of the father’s affidavit to him and seeking his reaction. I am also satisfied that the mother has told JAC about this hearing date and what the Court might do in relation to contact. There is simply no other explanation for JAC’s comments to Mr MB. I regard these actions by the mother as seriously inappropriate and destructive.
The mother places total responsibility for the children’s behavioural problems at the feet of the father. She does not see herself as having any role. She was opposed to an order for her to attend a post separation parenting course. Mr Henness submitted on her behalf that it was the father only who needed such assistance.
The father deposed to having no idea why contact stopped so abruptly in early October 2004. He said contact had been weekly and successful for about 16 months. He said he enjoyed a close and loving relationship with all his children. He later became aware of the allegations made by the mother against him some of which he admitted, and some of which he denied. He kept a diary of his contact with the children from the time of separation and sets out those diary notes from early June 2004 until 15 October 2004. His diary records activities with the boys including soccer, swimming, eating out, a party for LJC at Hungry Jack’s, reading, Luna Park, a holiday at Caloundra, a visit to the snake zoo, bowling, soccer and ten pin bowling. He says on 8 June 2004 he rang to speak to the boys and was told by the mother not to call the boys anymore. He says on the weekend of 18 to 20 June 2004 JAC developed an ear ache and he took him to the medical centre. That resulted in an abusive phone call from the mother who urged JAC to swear at his father over the phone. The father deposed to a phone call he received from JAC on 11 August 2004 in whispered tones to wish him a happy birthday. JAC told his father his mother would be opposed to him making the call and that he was making it before she woke up. JAC kept it very short. On 29 August 2004 the father says he received an abusive SMS message from the mother when he had sent a message to ask her to collect the boys as he felt too ill to drive. On 7 September 2004 the father said JAC reported his mother had not let him call his father on Father’s Day. On Friday 15 October 2004 the father reported JAC telling him on the phone he was missing him. The father annexed two loving letters written by JAC about the father on Father’s Day in 2004 and 2003.
The father conceded he made the remark about the bullets. He conceded it was a silly and thoughtless comment. However, because contact between the time of the remark and October 2004 worked well, he could see no reason for that remark to be cited as a reason for the breakdown in his relationship with JAC or as a reason for stopping contact. The father conceded he disciplined JAC on one occasion by scraping a small piece of soap on to his teeth. He said he has never hit the boys on the face or nose or otherwise. The father denied showing intimacy towards PM in front of the children. He said PM didn’t sleep with him at his home when the boys were with him. There was one occasion when the children, the father, PM and her daughter stayed together at the snow. I do not make any findings about this allegation by JAC. It is possible JAC came into the father’s room during the night at the snow.

The father placed much of the responsibility for the present impasse between him and the children at the feet of the mother. He could not think of any other explanation for the breakdown in the boys’ relationship with him.
In interim proceedings of this kind it is not possible to make findings in relation to the factual disputes in issue. I can make no findings as to the credit of the parties. I am satisfied there is a high degree of conflict between the parties. I am satisfied the boys are caught in the cross fire between the parties and they are suffering as a result.
I have decided both parties may benefit from post separation parenting courses and I have ordered accordingly. I am not satisfied either party has good insight into the damage they are doing to their children by behaving as they have. I am satisfied both parties are reluctant to take responsibility for their actions, preferring to blame the other. I have decided the father has a tendency to focus on his own needs rather than those of the boys. I accept the mother’s evidence that he has made inappropriate remarks in front of the children. I accept that the father has physically disciplined the children inappropriately at times. This may be the result of lacking the skills to manage the boys differently when they are being difficult. I suspect the father has a tendency to do and say things from time to time without thinking clearly in advance and that this tendency causes the mother intense irritation. These issues should be addressed in counselling. .
I have decided the mother has been involving JAC in particular in these proceedings by showing him the father’s affidavit and discussing court with him. This is of significant concern. I have no doubt this has played a part in JAC expressing his wish not to see his father.
Both parties acknowledge the importance of the children’s relationship with each of them. The mother said she wanted the boys to have a good relationship with the father. There are very obvious problems at present which urgently need to be addressed differently to how they are being addressed at present. The mother said the boys’ behaviour has deteriorated since holiday contact in September. She attributed the deterioration to the father’s conduct. I am not persuaded that is the case. Although I cannot make such a finding, it may be that the boys’ behavioural problems relate in large part to the conflict between their parents which they have witnessed over a long period and which is continuing.
The mother, as submitted to me from Dr Altobelli for the father, was proposing alternate weekend overnight contact in only September 2004 in a letter from her solicitors to the father’s solicitors. It was in October 2004 that the mother’s position changed dramatically. The mother does not oppose contact between the father and the two younger boys. I indicated during submissions that I see no reason to split the children or have different parenting arrangements for JAC.
I invited Mr Henness to propose injunctive orders which would address her particular concerns about the father’s behaviour towards the children. As proposed by Mr Henness, I have made orders restricting the father from imposing any form of physical discipline and from exercising contact at the home of Ms PM. Given JAC’s reluctance to spend time with his father at this time, I have decided contact should be simplified for him as much as possible. Although I have not made an order restricting the father’s girlfriend spending time with the children during contact periods, I think the more time the father can spend alone with the children during the next few weeks, the better for the rebuilding of their relationships. This is not meant as a criticism in any way of Ms PM who has provided affidavit evidence in these proceedings. Ms PM says she relates well to the boys, as does her 6 year old daughter Alana, and I have no reason to doubt this is so.
I am concerned that the parties are presently not communicating effectively with each other in the best interests of their children. I have therefore made an order for them both to attend a post separation parenting course. I expect each will benefit in different ways. The mother objected to being ordered to attend such a course as in her view it is the father only, who needs help with parenting skills. I do not agree with this submission. As I have already said, I have decided the mother has involved JAC inappropriately in these proceedings and would benefit from a better understanding of dealing with separation issues from the children’s perspectives.
I have decided that it is in the children’s best interests to re-establish the positive relationship they enjoyed with their father before contact arrangements broke down in early October 2004. I have decided that the children need regular face to face contact to achieve this. As it is not possible for me to make factual findings at this stage as to the extent of the inappropriate disciplinary actions by the father, I have decided to limit contact prior to review in February 2005, to single overnights.
I am satisfied that the orders I have made will be in the children’s best interests in the short term.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Sexton FM

Associate: Collette McFawn

Date: 23 December 2004