W and D (No.2)
[2005] FMCAfam 91
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & D (No.2) | [2005] FMCAfam 91 |
| FAMILY LAW – Stay application – little weight placed on psychologists report that founded mother’s belief of abuse – balance of interests of children in maintaining contact with father. |
Family Law Act 1975 (Cth), s.43
JRN v IEG B18/1998, (3 August 1998 unreported)
| Applicant: | AW |
| Respondent: | MD |
| File No: | PAM 409 of 2004 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 28 January 2005 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gersbach |
| Solicitors for the Respondent: | Ms Vardy, Marsdens Law Group |
ORDERS
The Application for a Stay of Order made on 24 January 2005 (filed
28 January 2005) is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 409 of 2004
| AW |
Applicant
And
| MD |
Respondent
REASONS FOR JUDGMENT
The Applicant Mother seeks a stay of Orders made by this Court on
24 January 2005 in which the present contact arrangements between the Respondent Father and the 3 children of the relationship be suspended pending final hearing of the Applicant Mother's Application for supervised contact to the Respondent Father in respect of the children.
The Orders that were made on 24 January 2005, following an interlocutory hearing, substantially varied the contact that would otherwise exist, that being each alternate weekend and half holidays to a period each Saturday between 10 am and 3.30 pm and involving one and a half hours of travelling time. The Order made on 24 January 2005 was made following the consideration of evidence provided by the Applicant Mother which was based on statements by a child psychologist that the children had seen in late December.
The Applicant Mother relies on a draft notice of appeal that particularly relates to an error of this Court in failing to give proper weight to the evidence of the information that was provided to the Applicant Mother by the psychologist.
Submissions have been made by the Applicant Mother today that a failure to provide a stay today will render any appeal nugatory in that it places the children at risk, given that the Orders provide for unsupervised contact.
The Applicant Mother submits that there is at least an arguable case in respect of the exercise of discretion in respect of the weight that was given to the evidence of the Applicant Mother about what she was told about the child psychologist.
I have made findings in my judgment of 24 January 2005 that there is little, if any, weight to be placed on the opinion expressed by the psychologist in assessing whether or not the children are at risk. However, in varying the Orders, I have taken into account the fact that the Applicant Mother had before her information that caused her a fear that the children may be abused, and therefore that fear needs to be managed in order to ensure that she is able to parent her children in the way that they will need
The Applicant Mother further submits that in considering whether or not a stay ought to be granted, it is a matter of balancing the risk to the children against the detriment to the children from any lack of contact with their father pending final hearing.
Part of the balancing exercise involves the interest of the children in maintaining and being able to continue to maintain a relationship with their father pending final determination of these matters. It is by no means certain as to how long that may be, and in the event that the Applicant Mother's Application was dismissed, the consequence of a stay would be that the children would have had no contact with their father other than telephone contact between now and the hearing of the trial.
There is no reason to believe that there is any significant likelihood of a delay in respect of the appeal beyond 6 to 8 weeks, and in seeking to balance the fear of the Applicant Mother, as founded on the evidence before me to date, with the overwhelming need to protect the rights of the children and promote their welfare in accordance with s.43 of the Family Law Act, I am satisfied that it is appropriate that the children be able to maintain some relationship with their father, and I am satisfied that the Orders that are presently in place address that need and the management of the mothers concerns.
I have further had regard to the submissions of the Applicant Mother that in the event that the stay is refused she may contravene the current Orders. That is entirely a matter for the Applicant Mother, and I say no more about that matter for the moment save to say that I do not find it a compelling argument as to why a stay should be granted.
The Applicant Mother also submitted that if there is uncertainty, and if the evidence pointed to a risk to the children then the Court should err on the side of caution. The Applicant Mother submits that were contact to continue in an unsupervised setting between the children and the Respondent Father and abuse occurred, then the children may be placed at much greater risk in respect of any evidence that may become available.
I have already had regard to the weight of the evidence that founds those submissions in my judgment of 24 January 2005, and in accordance with the principles which I was referred. His Honour Justice Kirby in JRN v IEG B18/1998, 3 August 1998 Unreported, referred to the importance for a Court in considering stay applications one must have regard to stay applications to have regard to any significant effect of such an order upon third parties who are not parties before the Court. Third parties include children, whose welfare must always be at the forefront of the Court’s deliberation in the making of an order affecting the interests of children.
Having regard to the evidence before me, benefit to the children in maintaining some contact with their father of the limited nature presently ordered, outweighs the risk to the children alleged by the Applicant Mother if contact is to occur.
I am not persuaded that the mothers beliefs about the risks to the children on contact are justified having regard to the findings I have made about the lack of weight to be placed on the psychologist’s evidence which founds the mother’s belief.
In the circumstances, the application for a stay of orders made on
24 January 2005 is refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 8 March 2005
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