Becke and Mooney

[2008] FamCA 318

FAMILY COURT OF AUSTRALIA

BECKE & MOONEY [2008] FamCA 318

FAMILY LAW – CHILDREN – intractable issues between parties – 12 years litigation – children’s wishes and concerns central

APPLICANT: Mr Becke

RESPONDENT: Ms Mooney

FILE NUMBER: NCF 2273 of 1999

DATE DELIVERED: 2 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 2 May 2008

REPRESENTATION

THE APPLICANT: Applicant appears on his own behalf

THE RESPONDENT: Respondent appears on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Damien Carter, Carter Naughton Rice

Orders

IT IS ORDERED

1. That the matter be transferred to the Federal Magistrates Court at Coffs Harbour Registry on a date to be fixed by that Court.

IT IS REQUESTED

1. That the Federal Magistrates Court –

(a)    give this matter such priority as it is able to accommodate;

(b)    take account of the Family Court of Australia’s recommendation that the matter needs the urgent appointment of an Independent Children’s Lawyer and the preparation of a Family Report.

IT IS FURTHER ORDERED

1. That Mr Damien Carter be discharged as the Independent Children’s Lawyer.

IT IS DIRECTED

1. That a copy of the Judgment delivered this day by Justice Jordan be made available to the Federal Magistrates Court.

IT IS NOTED that publication of this judgment under the pseudonym Becke & Mooney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NCF2273 of 1999

MR BECKE

Applicant

And

MS MOONEY

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is a matter which has presented the parties and their children with many challenges over a long period of time.  It is obvious that the differences between the parties run deep and have remained a significant component of the progress of this matter and, in that context, it is not surprising that each of the parties largely holds the other responsible for the current impasse that has occurred and which has resulted in these children not having any current meaningful relationship with, or spending any meaningful time with, their father.

2. That is an entirely regrettable state of affairs.  Studies indicate that, ordinarily, children are most likely to reach their full potential and have productive and happy lives if they have the involvement of each of their parents, notwithstanding that their parents have separated.  Of course, in the vast majority of cases, parties do not find their way to this Court.  However, it is understood that there are some cases, where the issues are complex and serious, that need the intervention of the courts and, unfortunately, this one has been involved in the litigation process altogether too long.  Neither of the parties has been satisfied with the outcomes of litigation and they are each frustrated by the lack of resolution and their inability, as it were, to get on with their lives.  No doubt, the children have also suffered as a consequence of this uncertainty and of the observed conflict between their parents.  

3. Litigation and orders to date have not been successful in providing these parties and their children with finality.  Indeed, the parties have been separated for 12 long years and they still find themselves before the courts.  From the father’s point of view, in frustration, he sees the need to litigate further as the only possible means of securing time with his children.  On the face of what he has to say in his material, it is understandable that he again pursues this course.  The mother is also worn by the whole process, but she says she is bound by the need to consider the children’s best interests.

4. Of course, one of the consequences of the tortured, protracted litigation surrounding this family is that the children are now reaching an age where, in addition to the parents' legitimate interests and concerns, the interests, wishes and aspirations of the children are an increasingly important component.

5. The children have not seen their father for approaching three years, which is nearly a lifetime for children aged 10, and is certainly a very significant period in J’s life. 

6. Without knowing a lot about this case, it is inevitable that the children have taken some harm from the ongoing conflict between their parents and from their lengthy separations from their father.  This Court needs to ascertain what has been the impact of that history upon these children and it needs to ascertain what are the wishes and attachments of the children.

7. It is essential, therefore, that the children be independently represented and that, as a vital part of the process, the children be interviewed so that they can be heard through that process.  Ideally, they will be interviewed individually and together, in the presence of their mother and in the presence of their father.

8. The information to be gleaned from a resultant report is likely to be vital in the deliberations of the Court in terms of the future arrangements between these children and their father. 

9. On the face of it, what the father seeks is appropriate.  He seeks contact one weekend per month and school holiday contact, which, given the logistics of the parties' personal circumstances, is probably the maximum amount that could be accommodated and may well be age appropriate, given the background of this matter.

10. However, the mother informs the Court that, because of the past difficulties and the children's exposure to the father's poor conduct and the consequences of their perception of the father's inconsistency in the pursuit of his relationship, the children are now expressing firm views that they do not want to have anything to do with the father, much less abide what I have said is, at face value, the father's reasonable requests for contact.

11. I understand the father has commitments financially, commitments to his employer, and that there is a limit to the amount of time he can dedicate to the further pursuit of this exasperating process.  At the same time, because of the Court's obligations to take account of the welfare, wishes and aspirations of these children, it is essential that they be interviewed and preferably seen with their father. 

12. The mother and the children reside in H, on the New South Wales coast.  The mother informs the Court that she is also in employment.  She informs the Court that she does not receive any child support from the father and that, in the circumstances, it is difficult for her to meet the needs of the three members of her household on her income.  No doubt, the children attend schooling, which would be an increasingly important aspect of their lives.

13. Whilst the father is in employment, it seems to me that, as between these parties, he is the more mobile of the two and that it is more appropriate that the father, as it were, be inconvenienced to enable this all important exercise to take place, rather than to inconvenience the mother and, more importantly, each of the two children.  There is no doubt the need to attend interviews in Brisbane would require the children to miss schooling and the like.

14. I acknowledge the difficulties for the father.   He will have to take time off, anyway, to get to Brisbane.  It is better that the burden be distributed in a way that avoids the children being disadvantaged.  It is more appropriate that the children be interviewed in Coffs Harbour and it is more appropriate that the further hearing of this matter take place in Coffs Harbour.  The children reside with the mother and she provides the day-to-day care and meets the day-to-day responsibilities.  The proper forum for this case is, in fact, in my view, Coffs Harbour.

15. I take the view that, in all probability, this is becoming a fairly narrow case.  I do not see the need for a Court to examine in detail the difficulties that existed in the nineties.  I am not saying that they are irrelevant, but those matters have been explored and some aspects of the history are now a matter of record.  The father admits his conviction for breaches of domestic violence orders and his imprisonment and the like.  I cannot anticipate that it would be necessary to re-litigate all those matters.

16. It will be necessary for a Court to review the current circumstances of the parties and, as I say, more importantly, the wishes and aspirations of the children.  I think the matter is, therefore, one without any particular complexity and I would hope and expect that the matter could be heard and determined within a two day period.

17. Bearing those matters in mind, this family is likely to be better served if the case is transferred to the Federal Magistrates Court for hearing and determination, as the Federal Magistrates Court would be able to accommodate the matter in a much shorter space of time.  The visiting Magistrate is also well aware of the availability of local counsellors and Independent Children's Lawyers and the like.

18. I am making this order because it has become apparent from what each of the parties has said that neither of them would have any faith in a less adversarial process.  Neither of them has any expectation that they could reach agreement about these matters.  They each indirectly affirm that this matter really needs the more formal processes of litigation which, as I say, would enable the wishes of the children to be placed before the Court.

19. In those circumstances, given the parties' lack of consent, I take the view that this matter has not proceeded as a first day under the less adversarial process and that, in that sense, it is not necessary for the matter to continue before me in Coffs Harbour.

    ORDER DELIVERED

20. I request that the Federal Magistrates Court give this matter such priority as it is able to accommodate because it is important that this matter be addressed as soon as possible for the benefit of the father and the mother and, most importantly, for the benefit of the children. 

21. I also request that the Federal Magistrate take account of my view that the matter is in need of the urgent appointment of an Independent Children's Lawyer and the ordering of a family report.

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: