Berryman and Jones and Anor

[2009] FamCA 305

FAMILY COURT OF AUSTRALIA

BERRYMAN & JONES AND ANOR [2009] FamCA 305

CHILDREN – With whom a child  lives – With whom a child spends time - Grandparents

APPLICANT: Ms Berryman

FIRST RESPONDENT: Mr Jones

SECOND RESPONDENT: Ms Davis

INDEPENDENT CHILDREN’S LAWYER: Ms K Berck

FILE NUMBER: BRC 769 of 2008

DATE DELIVERED: 10 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 5 & 6 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel

SOLICITOR FOR THE APPLICANT: Christine Vachon, Solicitor, of Brisbane

COUNSEL FOR THE RESPONDENT FATHER: Mr McGregor of Counsel

SOLICITOR FOR THE RESPONDENT FATHER:	Burchill & Horsey Lawyers, of Brisbane
FOR THE RESPONDENT MOTHER	The Respondent Mother appeared in person

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

INDEPENDENT CHILDREN’S LAWYER Berck & Associates, Solicitors of Brisbane

Orders

1. That the child … born … April 2005 reside with the mother.

2. That the mother have sole parental responsibility for the child.

3. That the said child spend time with the paternal grandmother at all times as agreed upon between the mother and the paternal grandmother, but failing agreement as follows:-

   (a)   From 10 March 2009 until 17 March 2009;

   (b)  From 18 April 2009 until 25 April 2009;

   (c)  From 16 May 2009 until 23 May 2009;

   (d)  From 20 June 2009 until 27 June 2009;

   (e)  From 18 July 2009 until 25 July 2009;

   (f)   From 15 August 2009 until 22 August 2009;

   (g)  From 19 September 2009 until 26 September 2009;

   (h)  From 17 October 2009 until 24 October 2009; and

   (i)    From 21 November 2009 until 28 November 2009.

4. For the purposes of handovers they are to occur at the commencement and conclusion of each period at 4 pm at the Roma Street Railway Station, Brisbane.

5. That upon the child spending time with the paternal grandmother, the paternal grandmother is to negotiate time that the father will spend with the said child for two (2) nights on an overnight basis during the time that the child is with her.

6. If the paternal grandmother and the Father cannot agree on what time the Father is to spend with the child then they are at liberty to telephone the Associate to arrange to have the matter dealt with by telephone.

7. That the grandmother be responsible for the costs of travel of the said child for the months of March, April, May and June and November 2009.

8. That the mother be responsible for the travel costs of the said child for the months of July, August, September and October 2009.

9. That Mr. W, psychologist prepare an updated report, and in that regard the mother, (and Mr A, who is invited to attend at 11:00am), are to attend upon Mr. W on 23 October 2009 at 10:00am, the father is to attend upon Mr. W on 23 October 2009 at 12:00pm, and the paternal grandmother is to attend upon Mr. W on 23 October 2009 at 1:00pm.  Whoever the child is with at the time of the interviews is to bring the child to such interviews.

10. 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.

11. That this application is adjourned to 10:00am on 7 December 2009.

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

And

MS DAVIS

Second Respondent

REASONS FOR JUDGMENT

1. This application was initiated by Ms Berryman (“the grandmother”) on 25 January 2008 in which she seeks parenting orders in relation to a child who was born in April 2005.  The child is the child of the relationship of the applicant’s son, Mr Jones and the second respondent, the mother Ms Davis.

2. I have had a great deal of assistance albeit in this very difficult case from the two reports, at least there is an updating short report, of Mr W, the first of which was in August I think 2008 and the later one was in November.  Regrettably Mr W was, to a certain extent, restricted in his appreciation of this matter by what I consider to be rather reprehensible behaviour on the part of the mother.  He refers in particular in his first report notations to the effect that in his view (see para 58 of that report.):

   Overall I have been left with the impression that [the mother] was deliberately sabotaging the family report preparation process by making my job of interviewing her a difficult one.

3. He goes on during that paragraph and has touched upon it before to criticise the mother’s attitude towards this Court, and I for one also accept that his complaints are due and proper in all the circumstances.

4. The personality of the mother is somewhat confusing.  She is a person who went to Grade 12 at school but she gives me the impression that perhaps she did not exhibit as a Grade 12 student should.  She seems to be very self-centred, self-absorbed and is unwilling to recognise not only the authority of the Court or other establishments such as the Department of Children’s Services, but also to understand that in some cases, and in cases insofar as the family report is concerned, it is an endeavour to assist her and the child, not in any way to pillory her and to denigrate her in the eyes of not only the child but other people, as well as myself.  She might consider that she, having to appear on her own and be faced by three counsel in this matter, is being pilloried and denigrated. 

5. I must make it quite clear that as far as I am concerned - I do not speak for other Judges, I speak for myself - I am fully aware of the great difficulty that litigants in person have when faced with an army, as appears to her, of counsel.  As it appears to her further, all agree in one matter, and that is that her daughter should be taken away from her and placed in the possession of the grandmother unless she returns to Brisbane.

6. I have to briefly touch upon the historical facts in relation to this matter.  The respondents, that is the father and the mother, commenced a relationship some nine years ago or a little bit longer.  As a result of this relationship, as I have said, the child was born.  I am more than satisfied in finding as a clear fact that the relationship between Jones, the father, and Davis, the mother, was marked, perpetrated and peppered with extremes of domestic violence, not only perpetrated upon one party but equally perpetrated by the other party upon that party.

7. The conduct of the parties in no way impressed me and I am shocked that in fact they were able to carry on in this manner towards each other.  In particular, I am shocked that, as admitted by the mother on one occasion, she says the child exhibited these violent episodes between the parties and the father says on numerous occasions.  I am more persuaded to, in one of the very few cases that I would, accept the evidence of the father.  In fact, in these matters the parties became totally uncontrollable and probably did not even know where the child was.

8. The grandmother had instituted an application for spending time with the child as far back as 2006 and she discontinued this application.  In her affidavit in support, she emphasises the domestic violence which was perpetrated by the parties on each of them.  I make it quite clear it does not appear that the child herself was violated or assaulted but that she had the unfortunate experience, I am sure, of seeing her mother and father probably screaming at each other and probably assaulting each other.

9. The grandmother saw fit to withdraw this application.  This intrigues me.  She says in her affidavit that it was too stressful, too substantial.  I just cannot put my hands on it but she did withdraw it, saying it was too stressful.  I want to be accurate in case this goes to another place.  She withdrew it in late 2006 or early 2007.  There is a notice of withdrawal filed in this Court which indicates that it was wholly withdrawn.  Notice of discontinuance was filed on 17 June 2007.  She expressed in her very brief affidavit in support of that application concerns about the attitude of the father and the mother towards each other and how this was affecting the child.

10. Subsequent to that time there had been some spending time with the child with the grandmother.  The grandmother I compliment because she has done a tremendous amount in an endeavour to assist not only her son against whom she has had domestic violence orders - he being a drug addict, and the mother who I am sure also partook of drugs.  She complains bitterly of the mother’s attitude towards her, also the fact that the mother is not allowing her to have any spending time with the child.  She is concerned as is set out in her evidence-in-chief affidavit as to the hygiene of the child, and particularly insofar as feeding was concerned, this being some two years ago when she was still with Mr Jones, the father, being fed baby food.

11. The concern of the grandmother initially is that the relationship between Mr Jones and Ms Davis, the mother, is in no way conducive to the proper and adequate upbringing of a child of this child’s age, nor any child.  She is concerned that the mother who, it appears now, has broken up entirely with her son.  I am sure she probably breathes a huge sigh of relief if in fact that has taken place, although I note Mr W is somewhat concerned in his first report that that has not taken place.  She has moved to B, between Brisbane and Bundaberg.  She moved to B in about February or March 2008.  She has resided there since notwithstanding the grandmother is somewhat concerned that she was still cohabiting with the father on those occasions which she particularises in her affidavit of 20 February.

12. The mother indicates that in fact that relationship with the grandmother’s son has ceased.  She is now established in B and whilst living in her former address at B next door to her is a person by the name of Mr A.  She and he have developed a relationship and I understand now is a de facto relationship, and they are living in and sharing the costs of a house in the B area.  Mr A was called.  Mr A is a carpenter by trade and he is endeavouring to get his builder’s licence.  Mr A is considerably younger than the mother, he seems to be a man who perhaps is ill-educated.  I do not say not educated, but ill-educated, and is a person who on the face of it is of bad character.

13. In the exhibit to the police record - - -

    RECORDED  :  NOT TRANSCRIBED

    Exhibit 2, the history of Mr A does him no credit at all.  It is peppered with breach of domestic violence orders, it is peppered with convictions for the possession of implements capable of being used for drugs, it is peppered with assault allegations.  These all took place up until 2007.  It may be said that he is a man who in all probability has great difficulty controlling his temper, and also controlling his boom box, which he has conceded that a further charge was made against in November 2008 or early 2009 where he was charged with being a public nuisance as a result of his boom box being too loud.  He has already been charged with one offence of that, I would have thought he is not stupid and he would wake up to the fact that excessive noise at probably some ungodly hour during the morning is not accepted and should not be accepted by the general populace.  That may tend to show that he is a man of not substantial intellect. 

14. However, according to he and the mother they have developed a close warm and loving relationship.  He intends in future, as he says, to have children with the mother and, whilst she did not have her mind directed specifically to that, she appearing on her own, did not in any way cavil with that suggestion.  There is vast concern on the part of the applicant grandmother that Mr A, because of his criminal record, would not be a good role model for the subject child.  She also has a fear, as a result of some evidence, that the police have been involved on more than one occasion, as admitted by the mother, in relation to the conduct of the parties between themselves.  By the parties I mean Mr A and the mother. 

15. This refers to 26 or 27 January 2009 in which the police were called.  The mother was required by Mr A to leave the matrimonial home.  She said she could not because she could not get a hold of her mother, and eventually was found by the police, on the streets with the child at some early hours of the morning.  Her explanation is somewhat pathetic in that she said he was taken to the gaol until he stopped crying.  I never got to the bottom of why he was crying.  There is much in that, however, because the child has already mentioned that to the grandmother, in her affidavit again, Mr A was crying and they had to go to gaol - there are so many affidavits - in particular at para 54 of the affidavit of the applicant of 20 February she refers to concerns about the hygiene and sexualised behaviour of the child, but does not mention that complaint.  It must be in another affidavit, but it is quite clearly there.

16. The grandmother is afeared that the mother, because of her predilection for being associated with men of violence, naturally of course who are nothing else but unmitigated cowards, this will be another example of her moving in with a person who is violent towards her and the violence might spill over towards the child.  It appears that the mother has had two relationships prior to the father, the cowardly father in this case, both of which were marked by serious violent behaviour either on the man’s part or, equally, on the mother’s.  I must say in passing, and the mother, in this case, probably gave as good as she got.

17. The evidence of abuse against Mr A and in the mother’s household seems to be minor to me.  It may be she has fortunately got over the hump and has found a person with whom she can relate without having vast deals of domestic violence either perpetrated upon herself or herself perpetrating it upon the other party.  We can only hope that that is the case.  Because if that long nexus is broken, these women - and it is almost a syndrome - can in fact recover themselves and be allowed to develop without their personality being destroyed by violence perpetrated upon themselves.  As I say, having seen the mother in the witness box, and listening to her, I would not be surprised if she give as good as she got.

18. What then are the competing proposals?  The grandmother says that as a result of the mother’s conduct, as a result of the domestic violence between herself and the father, as a result of the fear of domestic violence between herself and Mr A, as a result of Mr A’s very poor criminal history, it is necessary for the child to return to Brisbane for two reasons.  One, so that she can keep an overall eye on the child and see that the child is progressing.  Two, if in fact that does not happen that the child should return to Brisbane into her care.  She received some support from Mr W’s second report in which he says and I refer in particular to paras 48 and 49.  In 49 he says approximately at point 4 where first of all in that paragraph he is concerned that the relationship between the grandmother and the child, and the father and the child, has been fractured by the daughter’s conduct, her stubbornness in saying she will not return from B to Brisbane, and in it he says:

    I also stated in my original report that [the mother] was not likely to be someone who would facilitate a relationship between her daughter and [the grandmother].  This has been shown to be the case.  [The child] through her mother’s action (or inaction) has had a relationship with her paternal grandmother, as well as her father, fractured.  I believe that the only chance for these important relationships to be re-established is for [the child] to return to Brisbane.  However, [the mother] has told me that she will not do this.  A solution is for [the child’s] paternal grandmother to take up her care.  I believe that she will reliably facilitate [the child] spending time with each of the parents.

19. Naturally of course that is a matter which I have been directed by our political masters to consider, and I do consider it.  It would appear to me that what Mr W is not saying that that should happen.  He is saying it is an alternative which could happen, and he emphasises the fact that in his opinion that the mother should return to Brisbane.  See para 73 of the first report where he says:

    Ideally [the mother] will relocate to Brisbane area and never again engage in a relationship with [the father].

20. I think the relationship with the father has finished but nevertheless we still have the question mark over the relationship between herself and Mr A.  I do not criticise the paternal grandmother, the applicant, in any way at all.  I would agree with Mr W’s view that she will do everything to facilitate the welfare of the child.  It maybe, of course, that in her endeavours to facilitate the relationship between the child and either her son, the father, or her daughter-in-law the mother, there will be great difficulties.  I take that matter into consideration.

21. We come down to this.  The mother is established in B.  She says she is happy.  She has a good relationship with Mr A, notwithstanding some ups and downs.  That has been conceded.  She does not like, she says, the big city.  Mr A says he does not like the big city and really gives me the impression that he is a country boy at heart, if you could refer to B as being the country.  It is somewhat gentrified.  She does not want to return, perhaps for two reasons, which she being unrepresented was not emphasised sufficiently.  One, her apprehension in relation to any relationship she may have with the father.  Secondly, the fear that the paternal grandmother will take over her child and remove the child from her influence altogether.

22. She has indicated she has no objection to the father spending time with the child, but refuses to allow the grandmother.  How has she antagonised, if I may put it that way, the paternal grandmother?  Clearly she has done that by refusing, and I say refusing, to comply with orders of this Court.  There have been orders made for the paternal grandmother to spend time with the child.  There have been endeavours to enforce such orders, Jordan J made orders in which it required the paternal grandmother to forward $140 to the mother in order to enable her to return from B, or to come from B, to pay for the transfer.  She refused to do this.  She is saying that she cannot understand why she should have to come to Brisbane, if they are that keen they should come up to B to see the child. 

23. I do not in any way approve of the conduct of the mother in those circumstances.  The matter came on before me in November.  I had to threaten to issue a warrant to ensure that she complied with the order.  She has since, save for a couple of hiccoughs, and she will in future.  Any order that I make she will comply with because she knows if she does not it will go ill with her.  I am not as gracious as some other Judges in this Court, and it is gentlemanly, but I will not allow people to endeavour to destroy not only the relationship of this child with people who are important in the child’s life, but also to deny the Court’s authority in having its orders complied with.  I make that quite clear, it is not a threat, it is a promise.

24. We have a woman who concerns me about the adequacy of her education.  She concerns me about the fact that she has had this most unfortunate relationship with the child’s father.  She concerns me that she finds she will refuse to comply with orders until threatened with the Sword of Damocles.  She concerns me that she has antipathy towards the paternal grandmother, who of course may have given her - I say may have given her, not the general public - concerns for her almost fanaticism in her endeavouring to protect the interests of her grandchild.  I do not criticise her for that, I am referring to the attitude of the mother towards her.

1. Her fear is that the child will be removed from her, and she has gone close it.  What else do I have to decide?  Well, the politicians have put in paper those things which the Court has been looking at for 25 years before they even got around to it, and I refer to the brilliantly drafted section of the Act, or part of the Act dealing with parenting matters.  We now have to consider the presumption of shared parenting.  It is a farce in this case, it is clearly a farce.  It could not work, it could not work, and as a result thereof I consider that in the best interest of the child, supported as I am by Mr W, that shared parenting and shared responsibility cannot work and there must be one person who is able to direct the child’s welfare to the best of their ability.

2. I now look at the sections where I must also decide whether or no the child will have a meaningful relationship, a meaningful relationship that has gone through quite a few traumatic events.  As to definition, it means nothing else but what it says.  That it must be meaningful, full of meaning.  That there must be opportunities made by each of the parties to encourage the child to respect, to love and to be guided by the other parties to this case.  The paternal grandmother is afeared, as is Mr W, very much so, that the mother will in fact not allow the child to develop a meaningful relationship not only with her father but with the paternal grandmother. 

3. The politicians have found, amazingly, that the grandparents of children have an interest in them, and that they should be protected.  I do not believe the Court has ever suggested that grandparents have no rights, if I might use that word, because no one has rights in this case.  Only a child has rights.  The adults have duties, and they have an interest in the child, quite properly so.

4. I have some doubts about the mother encouraging the child to know the paternal grandmother, because of an inbuilt fear that the paternal grandmother may attempt to alienate the affections of the child from her, that the paternal grandmother may give the child a standard of living and care which the mother cannot match because of the lack of financial ability.  I must say I think the mother might consider having a look at Centrelink, seeing as they are living together as man and wife, and Mr A is on $50,000 a year.  I think it would be advisable to do so as soon as possible, but it is not for me to give her any advice.  But that does concern me.  It may make it even more difficult for the mother should Centrelink become interested.

5. I note of course the s 60(c) factors insofar as 2(a) are concerned, referring to the benefit to child having a meaningful relationship with both of the child’s parents.  I do not see any reason why those people who are particularly interested in the welfare of the children should not have a meaningful relationship as well.  I am sure that the politicians did not mean to exclude the grandparents in this case from having a meaningful relationship.

6. The next subsection is the need that I have to protect the child from physical or psychological harm, being exposed to abuse, neglect or family violence.  She has been, I have made that quite clear.  She has not partaken in it, I would have thought.  But psychological abuse is much worse than physical abuse.  Bones can knit, as they have said, psychological scars remain for ever, and are very incapable of being cured or repaired.  I do not believe at this stage that the child has been adversely affected, since the evidence of Mr W indicates that the child has a close relationship with all of the protagonists in this case, and as well seems to be unfearful of, comfortable with, and quite friendly with Mr A.

7. It is only too well known that children who have been physically and psychologically abused require one thing; that the physical and psychological abuse cease.  But they also tend to show in investigations of their general demeanour to the person who has perpetrated such offences - I class them offences, they are cowardly offences upon young children - upon them they tend to show some fear whilst endeavouring to curry favour with that person.  That does not appear in this case, and I am more than satisfied, fortunately, that the child at this stage has not been damaged psychologically.  I do not think she has ever been damaged physically. 

8. There is of course a suggestion that the child is not adequately looked after and I must say that I tend to not look upon that too closely.  The child is too young to give any view.  I have touched upon the child’s relationship with the parents and any person, which includes the grandparent or other relative of the child. 

9. I come to one which I consider is very important.  This mother has been the primary caregiver for the child since birth.  She has a close, warm and loving relationship with the child, and the child clearly has a close, loving and warm relationship with the mother (see the report of Mr W) eventually when he got around to seeing the mother after his almost begging for her to come.  To remove the child from the mother at this stage would cause tremendous trauma to the child.  Seeing that the mother seems to be determined to reside in B it would mean the child is removed, placed in the possession of a person who - I am discounting the father totally and I understand he is no longer pursuing an application for the child to live with him permanently.

10. She would be put in the possession of a person who has a great deal of love and affection and care for her.  However, she would be removed from the primary caregiver, her mother.  There is no sanctity in motherhood, that has been determined as far back as Gronow.  In that case it was held it is a factor, an important factor, that in this case Ms Davis is the mother of the child, but it is not a concluding factor.  It is something which I do take into consideration and consider very deeply.

11. The maturity, sex, lifestyle and background of the child and/or of the child’s parents.  Dealing with the child’s parents I have already indicated that they are totally immature.  The father is still, I am quite satisfied, addicted to drugs.  He still takes marijuana, and he probably drinks to excess.  The mother, I have a feeling, has improved.  She may on occasions take marijuana but it does not, at this stage, affect the wellbeing of the child.  I am somewhat concerned about, as I have said, the educational standard of the mother.  She has evinced to me that she went to Grade 12 but does not present as that. 

12. What about the attitudes to the child and the responsibilities of parenthood?  I can only say that the mother has improved out of sight.  She would have to.  Up until 18 months ago it was a disaster.  She was addicted to drugs, she drank to excess, she fought with the father of the child, she had little or no respect for herself, she had little or no respect for anybody else, and I am sure that at that time she may have had little respect for her daughter.  She has woken up.  She had better have woken up.  I have touched upon the family violence.

13. I feel as though they are the matters which I take into consideration and I make it clear this child is not of Aboriginal extraction, so I do not have to consider that.  Neither is she of any foreign extraction which I have to consider.

14. Section 66(c)(4), I have to consider without limiting paras 3(c) and (i), the Court must consider the extent to which the child’s parents has fulfilled or failed to fulfil.  Obviously this brings in the question of conduct which in the original philosophy of the Act was to be deleted altogether, but it is here, and I consider that and the opinion that my orders will show what I think.  All of the parties have said that the child should be put in the hands of the paternal grandmother for the purposes of the development of her proper and emotional welfare.  

15. The mother, who I am afraid for many times, did not quite understand what was going on.  I hope she does not.  She has put forward the fact that the orders made by Jordan J, and myself, wherein the poor child - I say the poor child because that is the view of the mother - has to come from B to Brisbane once every fortnight for a period is too distressing for her.  There is much in what she says.  She has put forward a counter proposal and that is that she place the child in the paternal grandmother’s care for a period of eight days each month to enable her to settle down and to enjoy time with the mother.  This of course would, in the mother’s opinion, give the paternal grandmother a significant period of time within which to observe the child or ascertain the child as being all right, to send her to Tufnell if she wishes to, and then the child would be returned to the mother. 

16. That would be very, very acceptable at this stage because the child is not attending school.  Next year she does, so we cannot have her missing in effect two school weeks out of a month.  But because of the concern that I have, and it is a concern, that the mother may not recognise the strength of this Court’s view about the welfare of the child, I feel that I cannot make a final order, and that I will be making an interim order wherein the mother does have the parental responsibility for about half of the month.  That is, she will have the sole parental responsibility.  The paternal grandmother and the mother will share the responsibility of the child when they are residing with her, the day to day care and responsibility of the child. 

17. I am persuaded not to remove the child from the mother because of the matters that have fallen from me.  I make no criticism of the paternal grandmother.  I believe that it is essential the child have the benefit of both the paternal grandmother and the mother, to lesser extent the father.  The father has indicated that he supports the paternal grandmother’s claim for full-time care and responsibility for the child, and that he desires during that period to have some, spending time with the child.  It was submitted by McGregor of counsel for him that I should particularise that time, and he has handed me a draft.  Because of the orders that I am going to make it will be necessary for the Independent Children’s Lawyer to meld the various orders into one and forward it to me at the earliest opportunity.

18. 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 in relation to the child, and I encourage the mother to consider deeply what I have said.  If she does not she will lose the child.  It is as simple as that.  The reason why I want it back is because we have got school next year and I have got to consider how the child is going.  At that time it will have to be determined - perhaps I am taking the cowardly way out.  It will have to be determined whether the child, if the mother still desires to live in B, stays in B for schooling, or comes down here.  I note of course in passing that the suggestion by the paternal grandmother that the child attend C School, I think was it not, which in itself is renowned as a very, very good school, and that would only be to the benefit of the child.  I am still concerned about the mother’s educational standards.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              17 April 2009