Berryman and Jones and Anor

[2010] FamCA 235

FAMILY COURT OF AUSTRALIA

BERRYMAN & JONES AND ANOR [2010] FamCA 235

FAMILY LAW – With whom a child lives – With whom a child spends time - Grandparent

APPLICANT: Ms Berryman

FIRST RESPONDENT: Mr Jones

SECOND RESPONDENT: Ms Davis

INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

FILE NUMBER: BRC 769 of 2008

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 21 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Selfridge of Counsel

SOLICITOR FOR THE APPLICANT: Christine Vachon Solicitor

FOR THE FIRST RESPONDENT: The First Respondent appeared in person

FOR THE SECOND RESPONDENT: The Second Respondent appeared in person

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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

Orders

1. That the child C born … April 2005 live with the Paternal Grandmother.

2. That the Paternal Grandmother be solely responsible for decision making with respect to the child.

3. That the Mother spend time with and communicate with the child at all reasonable times as agreed with the Paternal Grandmother and failing agreement as follows:-

   (a)From 9.00am to 5.00pm on Mother’s Day;

   (b)By telephone on Tuesdays, Thursdays and Sundays between 5.30pm and 6.00pm;

   (c)By telephone between 5.30pm and 6.00pm on the child’s birthday and on Christmas Day if the child is not with her;

   (d)For the Easter school holiday period in 2012 and triannually thereafter;

   (e)For the first week in the June/July school holiday period in each year;

   (f)For one half of the September/October school holiday periods, the first half in 2010 and alternate years thereafter and the second half in 2011 and alternate years thereafter;

   (g)For one third of the December/January school holiday period, the first third in 2010 and triannually thereafter, the second third in 2011 and triannually thereafter, and the last third in 2012 and triannually thereafter;

   (h)In Brisbane upon giving the Paternal Grandmother 14 days notice, and as long as it does not interfere with the father’s time with the child then for up to one in every three weekends from 5.00pm Friday until 5.00pm Sunday.

4. That the Father spend time with and communicate with the child, as long as he is not affected by alcohol or drugs, at all times as agreed with the Paternal Grandmother and failing agreement as follows:-

   (a)For every two out of three weekends commencing 29 January 2010 from 5.00pm Friday until 5.00pm Sunday;

   (b)From 9.00am to 5.00pm Father’s Day;

   (c)By telephone on Tuesdays, Thursday and Sundays between 6.00pm and 6.30pm;

   (d)Between 6.00pm and 6.30pm on Christmas Day if the child is not with him;

   (e)For the Easter School Holiday in 2011 and three yearly thereafter;

   (f)For the second week in the June/July school holiday periods in each year;

   (g)For one half of the September/October school holiday periods, the second in 2010 and alternate years thereafter, and the first half in 2011 and alternate years thereafter;

   (h)For a period of two hours on the child’s birthday between 3:00pm and 5:00pm in 2010 and alternate years thereafter, and from 5:00pm to 7:00pm in 2011 and alternate years thereafter if it occurs on a school day, and from 9.00am to 12.00 noon in 2010 and alternate years thereafter and from 12:00 noon to 3:00pm in 2011 and alternate years thereafter;

   (i)For one third of the December/January school holiday period the second third in 2010 and triannually thereafter, the last third in 2011 and triannually thereafter, and the first third in 2012 and three yearly thereafter.

5. That all parties will keep each other informed of any change in address or phone numbers within 48 hours of such change.

6. That this order shall be sufficient authority to allow the Paternal Grandmother, the Father, and the Mother to;

   (a)Obtain copies of school photos, report cards, newsletters and the like at his or her expense;

   (b)To contact any medical practitioner or other expert upon where the child attends; and

   (c)To attend school parent/teacher interviews, sports days and other school functions.

7. That the Mother be restrained and an injunction be granted restraining her from bringing the child into contact with Mr A or allowing anyone else to do so.

8. That the paternal grandmother be able to communicate with the child:-

   (a)When the child is on holiday time with either parent, by phone between 5:30pm and 6:00pm on Tuesday, Thursday and Sunday in each week; and

   (b)On Christmas day between 5:30pm and 6:00pm if the child is not with her.

If the mother returns to Brisbane to live then:

1. That paragraphs 3(h) and 4(a) of this order be discharged.

2. That the Father spend time with the child every third weekend from 5:00pm Friday until 5.00pm Sunday in a three weekly cycle.

3. That the Mother spend time with the child as follows:-

   (a)Every third weekend from 5:00pm Friday until 5:00pm Sunday in a three weekly cycle; and

   (b)For a period of two hours on the child’s birthday between 5:00pm and 7:00pm in 2010 and alternate years thereafter and from 3:00pm to 5:00p in 2011 and alternate years thereafter if it occurs on a school day and alternate years thereafter and from 12:00 noon to 3:00pm in 2010 and alternate years thereafter.

4. All previous orders be discharged.

5. All outstanding applications be dismissed and removed from the list of cases awaiting determination.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 769 of 2008

MS BERRYMAN

Applicant

And

MR JONES

First Respondent

MS DAVIS

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for parenting orders in relation to a child over the relationship between the first and second respondent, namely Mr Jones and Ms Davis.  The applicant is the paternal grandmother, Ms Berryman.  The child, the subject of the application, is C who was born in April 2005.  That means she is not quite 5 in age.  Fortunately, as a result of the efforts of the independent children’s lawyer, I am able to set out the chronology of events which have been accepted by the mother as being true and correct save for the date 8 September 2009, which looms rather large and is quite crucial in this case.

2. I have already had this matter on a final hearing basis last year.  I refused to make a final order, and I refer to and incorporated these, my reasons for judgment of that time of that date which was 10 March 2009.  Inter alia in that matter I touched upon what had happened prior to the date of my coming to hear the matter and, unfortunately, I made forecasts which have become all too true.  I did not, at that time, notwithstanding I had considerable doubts about the ability of the mother, and to a lesser extent the father, to adequately put forward the welfare of the child C.  I allowed the child to remain with the mother.

3. And at paragraph 42 I said, as follows, inter alia:

   My view is that this matter will return to me at the end of November, early December of this year.  At around about mid November a further family report will have to be prepared, ready for release by Mr [W], who had already given one full report in relation to the child, and I encouraged the mother to consider deeply what I have said.  If she does not she will lose the child.

4. What has happened:  well, first of all when the child went back to the mother – she’s living in B in the central Queensland coast area –notwithstanding the orders of this court, for a period, according to the applicant paternal grandmother, the child and the mother “disappeared” for a period of three months.  The paternal grandmother was unable to exercise the periods of spending time with the child, as ordered by myself.  She instituted recovery orders which, as I understand, have subsequently been withdrawn, in about November, if my memory serves me correctly, because this matter was coming on for hearing, not as I hoped for in November or December last year, but in January of this year.

5. The crucial part is that part of the chronology which the mother has objected to.  I read in full the notation, as prepared by the independent children’s lawyer, of that date. 

   [The mother] brings [the child] to Brisbane to the paternal grandmother’s home and leaves her there despite the next visit not due to take place until 19 September.  [The mother] said that [Mr A] locked them out of their house and they had nowhere to go” – I’ll be touching upon Mr A at a later stage.  “They had stayed with [the mother’s] mother also.  [The mother] returned to [B].  Further allegations of mistreatment by the mother and [Mr A] were made by the child.

6. The mother disputes the contents of that paragraph and indicates that it was by way of accident that she brought the child to the mother.  She was of the belief that, in accordance with my order, which perhaps was a little convoluted, the child was to be delivered to the paternal grandmother for the purposes of spending time with on that day.  That day was a Tuesday.  The changeover times were Saturdays.  That day it was 12 days earlier than the specified time contained in the order.  With great respect to the mother I do not accept her evidence that it was accidental.

7. I accept the evidence of the paternal grandmother wherein she says that Mr A “kicked them out” of the house and she had nowhere to live, and as a result thereof she placed the child in the hands of the paternal grandmother.  Why do I say that I accept that?  Because of the attitude of Mr A towards the mother.  This Mr A, I’ve already commented upon in my first interim judgment, is a person who, to me, appears to be a man who has little anger control; is either ill-educated; or is a foul-mouthed coward.  His type of discussion is set out on an affidavit of Ms T in which he ranted and raved in a most vile and disgusting fashion, being unable to put a sentence together without using some expletive, which becomes all too common nowadays.

8. I say that I am able to say that that was Mr A because it was accepted by the mother as being his voice.  That person is a person of little or no repute.  He is a person who would not, in my opinion, have the right to be in a position of a father for any child.  The evidence concerning his general health is appalling and I refer in particular to the report from the Salvation Army in Townsville where it is quite clear that he is not only a drug addict but he is an alcoholic.  He has little anger control and he is an arrogant coward.  I say he’s a coward because he has been violent towards the mother and I accept the statement made by the paternal grandmother that the child complained to her about being hit by this Mr A.

9. Even if that is not right I accept that the statement was made.  I’m not saying that that was true.  I could not understand how any mother of a child could insist upon a child being brought up in such an atmosphere that is exhibited, not only by Mr A’s own statements, but by the complaints herself that Mr A was violent towards her – not necessarily physically but he obviously was emotionally and verbally violent towards the mother.  This has a most adverse effect upon any child, and particularly a young child.  A young child does not need to have expletives thrown at her or in her presence towards her mother and I would have thought, equally, that the mother probably gave back as much as she got by way of expletives.

10. I think it was an appalling situation for the child.  It is quite clear that up until comparatively recently when she may have had a conversion on the road to Damascus, she was of the view that no advantage would come by the child having any contact with the paternal grandmother.  It may be that for once she had heard what I said in my judgment last year and she now, in a latest report of Mr W, indicates that she recognises that it is to the benefit of the child that she have a contact with her grandmother. 

11. She says that there was, in effect, nothing wrong with her relationship with Mr A, as fell from Mr W in his evidence.  He indicated that if, in fact, the mother did not know that he was a drug addict;  if, in fact, she did not know that he was an alcoholic;  that she should have known in order to adequately protect her child, she should have known the conduct of this person.  That was the last of her relationships.  The father of the child and her have had a very volatile relationship.  They both concede that there have been periods of emotional and verbal violence between the two of them, once again in the presence of the child.  I note in passing that up until comparatively recently the father, Mr Jones, was in support of the application of his mother, for possession, if I might use that word, or for an order that the child reside with her.  He does not now.

12. And, in fact, his attitude towards his mother, one would have thought without sufficient evidence to decide why, is reprehensible.  His texts, to which the paternal grandmother has referred, which have been read into the record, and I think a copy has been made, once again exhibits a lack of control.  He is unable to use English language without reverting to expletives, which I would have thought, to any woman, would be offensive.  However, that does not in any way seem to affect him at all.  He says that he’s done nothing wrong insofar as the child is concerned.  I say in passing that, according to Mr W’s evidence, he is now having a fair bit of spending time with his daughter since she has been in the possession of his mother.  More so, I would think, than when the child was in B, which she has been since early 2008, in the presence of Mr A.

13. I revert to Mr A.  He has not seen fit either to be interviewed by Mr W, nor to come to court, nor to place any material before the court.  I also say in passing that the father has not seen fit to put any material before the court to advance his case. 

14. The mother, as I said, resided with Mr A up until she says September of last year.  Since then she has had no physical contact with him but does, on occasion, speak to him by way of telephone.  He is somewhere in the Maryborough area.  She knows where he is but, as I have said, she says she does not have any physical contact with him.  Mr W doubts whether: (a) she will be able to avoid having some physical contact with Mr A and; (b) whether she would have some difficulty in having some physical contact with the father

15. It appears that the father and she may have had a rapprochement and that they are getting on better than they have before. I must say that quite clearly on the evidence before me, I share Mr W’s doubts as to whether or no this mother is sufficiently aware of the grave disservice that she, by her relations with the father and Mr A, has been doing to her daughter.  She might say she does now.  It is too late.  I, back in March, warned her of this and what happens, she “accidentally” drops the child off at a later stage.

16. She still retains a relationship with Mr A until September.  She finds it too difficult to comply with the orders of the court.  She “disappears” for a period of three months.   What is the advantage to the child of that I ask?  None.

17. It is incumbent upon me to decide whether in fact I am able to ensure that there is a meaningful relationship not only between the mother and the father of the child but also the grandmother. I take into consideration that requirement.  I also take into consideration the provisions to which the court has been mandatorily directed to do by our political masters in relation to section 60CC.  I say in passing that those matters had always been to the forefront of the court before the politicians decided that it was something which the court should take into consideration and that was some 20 years before the amendments.

18. However, I must take them into consideration and therefore I do.  I have to take into consideration the need to protect the child from physical or psychological harm.  I have already touched upon that. This child needs to be protected from it.  You cannot have a child, a child who is not yet five years of age, brought up in an atmosphere where there are expletives used as easily as a person has a cup of tea, where people are verbally violent to each other, where it is necessary for DVOs to be taken out against the father some two or three years ago.

19. So far as section 60CC2(b) is concerned, what is the relationship with the child with each of the children’s parents.  It appears that it’s not too bad, not too bad.  I refer once against to Mr W.  He doesn’t know what Mr A is like but it is quite clear on the evidence before me and as said by Mr W in both his reports, particularly in the last report, that – and I emphasise this “[the child] feels safe with her grandmother”.  Isn’t that a shocking statement on the part of an expert that he ascertains that the child is looking, as any child would look, for safety, and that she has that safety in the care of her grandmother?

20. So far as 60CC2(c) is concerned, it is quite clear that Mr W is of the view, and I share his view, that the mother would in all probability not advance or facilitate and/or encourage a relationship between the child and the paternal grandmother and probably would not between herself and the father.  However things seem to have changed slightly. There does seem, as I have said, to be a rapprochement between the mother and the father and there has been a falling out between the father and the grandmother.

21. So far as 60CC(2)(i) is concerned, I have touched upon the family violence involving a member of the child’s family.  Violence does not just necessarily mean physical violence.  Emotional violence is more affecting to children than any other form of violence. Physical violence stops, can stop, emotional violence scars them for the rest of their life.  I am quite satisfied that she has been exposed to an inordinate amount of this. I touched upon the family violence order.

22. I do not think that I have to go through each of the requirements of section 60CC seriatim.  It is necessary for me to emphasise those matters which I consider important and relevant to the determination of these proceedings.  I am more than satisfied that those matters that I have touched upon are sufficient for me to say this child should not be exposed to this type of conduct on the part of his mother, and to a less extent, albeit still sufficient of the father.

23. There is an antipathy by the father towards his mother.  I do not know the reason for this.  He initially started off by calling her by her Christian name.  She remonstrated with that, indicated he should call her mummy, and he refused to do so.  He is entitled to do so but I noticed that his vehement refusal to refer to her as mummy faded as the time went on and he did refer to her as mummy.  There may be something left.  I sincerely hope there is because, insofar as the paternal grandmother is concerned, she has offered, should she receive the child, what I consider to be remarkably generous terms to not only the mother but to the father and he should consider that and not carry on in a most unfortunate manner, particularly when he is taking delivery of the child and returning the child.  The child does not deserve that and does not need it.

1. I do not believe that there is anything necessary for me to say further.  I have already incorporated as I said, the particularly in depth chronology of events.  I have touched upon the only matter which the mother herself says is not correct, and I have already indicated that I accept the evidence of the paternal grandmother in relation to that, 8 September, in preference to  that of the mother.

2. I have no course left open to me other than to order that the child reside with the paternal grandmother, and I have had the opportunity, I sincerely hope all parties have had the opportunity of observing not only the hand-written draft put before me by the independent children’s lawyers counsel, Andrew, but also the typed one which came to my possession this morning.  I have no hesitation in ordering in accordance with the typed draft as modified.

   RECORDED  :  NOT TRANSCRIBED

3. However, as a super abundance of caution all other orders of this court are discharged.

   RECORDED  :  NOT TRANSCRIBED

4. Orders accordingly. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: