Boulder and Wood

FAMILY COURT OF AUSTRALIA

BOULDER & WOOD

[2008] FamCA 321

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT:

Mr Boulder

RESPONDENT:

Ms Wood

INDEPENDENT CHILDREN’S LAWYER:

Rhonda Sheehy & Associates

FILE NUMBER:

BRC

9817

2007

DATE DELIVERED:

30 April 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

28 & 29 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris of Counsel

SOLICITOR FOR THE APPLICANT:

Smith & Associates

COUNSEL FOR THE RESPONDENT:

Mr George of Counsel

SOLICITOR FOR THE RESPONDENT:	John Paul Mould Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Drysdale of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Rhonda Sheehy & Associates, Solicitors

Orders

That the children J born the … December, 2001 and C born the … March, 2003 live with the mother.
That the mother and father have equal shared parental responsibility for the said children including:-
a.The said children's education;
b.The said children's religious and cultural upbringing;
c.The said children's health;
d.The said children's names;
e.Changes to the said children's living arrangements that make it significantly more difficult for the said children to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
a.Inform the other parent about the decision to be made;
b.Consult with each other on terms that they agree; and
c.Make a genuine effort to come to a joint decision.
That the father spend meaningful time with and communicate with the said children at all times as may be mutually agreed and failing agreement as follows:-
a.For two consecutive weekends out of three during School Terms from conclusion of School on Friday to commencement of School on the Monday with changeover to occur at the School.
b.From conclusion of School Friday to commencement of School Monday on Father’s Day weekend with no time to be spent on Mother’s Day weekend with changeover to occur at the School.
c.From 5.00 p.m. Thursday Easter Eve to 5.00 p.m. Easter Monday in odd years with no time to be spent from 5.00 p.m. Thursday Easter Eve to 5.00 p.m. Easter Monday in even years.
d.For one half of all School Holidays including alternate Christmas Days and, in particular, for the first half in odd years including Christmas Day and the second half in even years excluding Christmas Day.
e.By telephone communication each Tuesday and Thursday as well as Sunday in the off week to that time set out in paragraph 4. a. hereof with the father to instigate the telephone call to the mother’s residence phone/mobile phone at 7.00 p.m. and with the mother to facilitate that time by permitting the said children to answer the telephone call at that time and to speak with the father PROVIDED THAT the mother be at liberty to exercise telephone communication to the said children when those children are with the father as set out in paragraphs 4. a. and b. hereof at 7.00 p.m. on the Saturday, at 7.00 p.m. on Easter Saturday and on each Tuesday and Thursday during School Holidays at 7.00 p.m. on the same bases.
That changeover save as set out in paragraphs 4. a. and b. hereof occur at such place as may be agreed between the parties and failing agreement at Southbank Railway Station.
That the mother and father be at liberty to attend at all School functions to which parents are invited including, but not limited to, sports days, carnivals, fetes, concerts, plays and parent teacher meetings.
The mother and father and their spouses/partners forthwith independently engage with a qualified Family Therapist/Counsellor to assist all of them in:-
a.Improving their communication.
b.Facilitating the time of the children J born the … December, 2001 and C born the … March, 2003 between the households.
c.The behavioural management of the said children within each household.
To give effect to the aforesaid Order:-
a.The mother and father forthwith make all necessary enquiries in relation to a suitable Therapist/Counsellor and attend upon that Therapist/Counsellor with their spouses/partners as the Therapist/Counsellor deems appropriate and from time to time at the mother/father’s own cost at the request of the Therapist/Counsellor including the said children AND if so required, the mother and father deliver the said children to the Therapist/Counsellor for that purpose; and
b.The mother and father forthwith notify his/her Solicitor of the full name, address and contact telephone number of such Therapist/Counsellor and authorise that Solicitor to forward directly to that Therapist/Counsellor a copy of Ms J’s Family Report and Dr. W’s two Psychiatric Assessments to assist the Therapist/Counsellor in Counselling the mother/father AND for that purpose, leave is hereby granted by this Honourable Court to those Solicitors to release those Expert Reports to the Therapist/Counsellor.
That the mother and the father take all steps necessary with the Principal/Secretary of the School/s at which the said children are enrolled from time to time to enable the mother and father to each receive at his/her address and at his/her expense, copies of the said children’s School Reports, School photographs and newsletters of functions.
That each party keep the other informed in writing of his/her current residential address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change.
That the mother forthwith establish a Communication Booklet to pass with the said children at changeover of all times to be utilised by the parties for the health and welfare of the said children and for no other purpose PROVIDED such Communication Booklet remain in tact, subject to paragraph 12 hereof.
That the mother by these Orders authorises all Health Care Providers and Educational Experts involved with the said children from time to time to liaise directly with the father at his request and at his expense and the mother immediately provide the full names/addresses and contact telephone numbers of such Health Care Providers and Educational Experts to the mother/father in the aforesaid Communication Booklet.
That each party contact the other in the event of any medical or other emergency involving the said children whilst with him/her.
That either party have liberty to apply for matters relating to enforcement or interpretation of this Order upon giving SEVEN (7) days notice in writing to the other.

IT IS ALSO ORDERED:-

That these proceedings be adjourned to 10.00 a.m. on the 1^st December, 2008.
That the Independent Children’s Lawyer arrange for an updated Report by either Ms. J, Family Consultant, or Dr. W, Psychiatrist, to be completed by mid November, 2008 for the purposes of the Hearing on the 1^st December, 2008 and it is requested that Legal Aid Queensland assist in the preparation of such report.
That leave be granted to the Independent Children’s Lawyer to make available a copy of the Reasons for Judgment delivered on the 30^th April, 2008 to Mr. G of Department of Child Safety.
That pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particular 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9817 of 2007

MR BOULDER

Applicant

And

MS WOOD

Respondent

REASONS FOR JUDGMENT

This is an application on the part of the father for orders in relation to two children of his relationship with the respondent namely the mother. Those children are J who was born in December 2001 and C who was born in March 2003.
The parties commenced a relationship, if my memory serves me correctly, in 1998 and thereafter they continued in a relationship - I say "a relationship" advisedly - until or about 2004 when they ceased living together and they finally separated as I understand it in 2005.
The relationship between the parties was marked as I am finding by excessive consumption of non-prescription drugs, by alcohol; the cohabitation was also marred by domestic violence perpetrated by the father upon the mother and I would not be surprised if in fact there had been some retaliation. In other words, I am satisfied that this was a dysfunctional relationship and it is a relationship which unfortunately has been the progenitor of two children who, as a result of this unfortunate relationship, now have a fractured family, the father on one side, the mother on the other.
They both have, in effect, re‑partnered or have other relationships, the father having remarried and as a result of that these two children are torn between their parents who obviously, on the material before me, they both love and wish to have a relationship with.
This Court therefore is put in the invidious position of having to decide with whom these children are to reside. I take into consideration the amendments which have been put upon this Court in 2005 by the politicians who believed that they were doing something new. It is just unfortunate that the Court had been applying the same principles since 1976 which unfortunately I do not know if they were aware of.
I have taken into consideration the relative amendments and, in particular, I acknowledge that I am required to consider as a presumption that there should be equal parenting and equal parental responsibility. I should not be bound by that presumption if I am satisfied that it is not in the best interests of the children that I be so bound and that I so find.
I am satisfied for what I am going to say at a later stage that it is not in the best interests of the children that they be inconvenienced by having themselves uprooted once a week to move from one house to another house and then be returned from that other house to the first house.
I am of the belief that shared parenting works but it really only works when in fact it never comes to Court because the reason why it does not come to Court is the parents put the children's welfare first and agree and, if they agree, why do they want to come to the Court? They, in other words, love their children more than they hate each other and that is the reason why very, very infrequently can I be persuaded that equal shared parental responsibility is in the best interests. If in fact it means so much to them I sometimes think, why do not the parents themselves remove themselves from the house and allow the children to stay in one house? If in fact you put that to the parents, I am not saying that is the case here, you would find that they would say that that is terribly inconvenient. If it is inconvenient for them, it is inconvenient for the children.
I have no hesitation in this case in saying that I have to determine with whom the children will live for the greater part of their waking life and that in itself is regrettable.
It is incumbent upon me, as I have been directed by the Court of Appeal, to analyse in depth the matters which have been put before me. I am firmly of the belief that parties are entitled to have a speedy resolution to the case that they have put before me. I do not believe it is in the best interests either of the parties, the children or of myself that I should take an inordinate amount of time to sit down and cross every T and dot every I in relation to this matter.
I must unfortunately put a generally broad brush upon the matter. We are not, shall we say, rich in time in this Court. We have many other cases to determine but each case of course is equally as important as the other because the welfare of the children are at risk.
What then do we have? I have been assisted greatly by the two reports of Dr W, an adult and child psychiatrist, and I incorporate generally in these my findings in relation to the facts and the history of the marriage, his findings therein. As I have indicated generally this was a dysfunctional family, such dysfunction perhaps brought about by an initial personality clash but I am more than satisfied that the incidence of drugs, particularly marijuana on which they were spending, I think, up to $400 per week according to what Dr W was told, in their habit and as well alcohol.
I have had experience in this Court over 30 years and the evidence from experts is that alcohol and marijuana do not mix and marijuana and alcohol even separately do not mix either with people. Marijuana is not, as far as I am concerned, a drug of recreation and it is becoming quite clear that in fact alcohol is not either.
So what do we have? We have two young boys who have been in the primary care of their mother although as has been said by the father and I accept, that he did have a considerable amount to do with the children. He was living some four doors away at the initial breakdown and did attend upon them quite frequently and on occasions slept over. He did have a relationship with the children but that was when they were very young.
Thereafter, as a result of the actions of the mother, he lost contact, if I might use that word, not the word that used to be in the Family Court Act, with the boys, I think, for about 15 months when the mother removed herself from contact. Thereafter he did re-establish some contact. She went to a town north of Brisbane where her mother was living, had a fight with her mother and left and then absconded to Sydney. This was in 2006.
She remained away; endeavoured to use the provisions of the apprehended violence orders of New South Wales to exclude the father from having full and meaningful time with his sons. She was returned by way of a recovery order in early 2007 and an order was made by his Honour Baumann FM in which he graduated the re-establishment of spending time with the boys with the father, initially on a supervised basis and subsequently on an unsupervised basis although he did indicate to the father that it might be wise if the father, because of a super-abundance of caution, did tend to have some other person in the house to protect him from what he says are scurrilous allegations in relation to his sexual misconduct with the boys and/or inappropriate conduct.
Insofar as the sexual mistreatment or inappropriate conduct towards the boys is concerned I am more than satisfied that it did not take place. The mother has frequently, since towards the end of 2005/2006 protested to everybody that she could possibly protest to, that the father has, in effect, been interfering anally with the boys, that he is not doing things which should be in the best interests of the boys and he is inappropriately acting out before them.
The mother has had difficulty with Contact House which she had agreed to attend under a Department of Children's Services parenting plan. She has not done so because she ran foul, as she says, of one of the counsellors there. She has run foul of the Department of Children's Services and to a lesser extent it appears to me as though she has run foul of the police force.
According to her, her concerns are genuine concerns. As I said, if she did not complain about them she would be damned if she did and now it is alleged by the father that she is damned because she has done so. If she did not I expect, as was conceded I think by Dr W in a question I put to him, that in fact that would be the case. If she did not do anything about it she would be damned, if she did something about it she would be damned. She was in a cleft stick.
And this appears to be supported by a letter which she wrote in January of this year in which she indicated to the Department of Children's Services, the case manager, what is she supposed to do? She has also said that in her evidence before me yesterday or the day before, she now does not know what to believe.
This has been brought about as a result not only of the lack of support as she sees it of the various authorities, police, Department of Children's Services, Contact House but also what she read in the first report of Dr W which was exhibited to an affidavit of 24 September 2007 in which he, after a very full and in depth report in relation to the facts - see page 18 thereof - is of the opinion that:
There is little, if any, evidence of abuse.
As I have said, I am satisfied that there has not been abuse.
The mother, up until as late as 3 April when her final affidavit was filed, appeared to exhibit an absolute conviction that these children had been sexually interfered with or were subject to inappropriate conduct by the father but she says that even at that stage she was having some concern, after having read the September report of Dr W, about whether in fact she was as firm in her belief as she had been.
I must say that her evidence concerning her change, her volte-face, from 3 April onwards did concern me to a great extent. It appeared to me as though it might have been a piece of evidence put before the Court to overcome, which obviously is her biggest hurdle, that is the belief that the children have been interfered with.
It has been set out by Dr W in both his reports that there are perhaps two or three reasons for this and I incorporate in these my Reasons for Judgment, his view: She could be - I make no apology for this - bloody‑minded and that she would say and do anything to interfere with the children's welfare with the father. It may be that she genuinely believes it.
I take those things into consideration and if it had not been for a fact which I will emphasise at a later stage, I would have been somewhat doubtful as to whether in fact this was contrived or not.
What else is there concerning the father about the boys? In particular, as I understand three. One, there is the dental hygiene, particularly of C; secondly, there is the general health of the boys; and thirdly, the general health of the boys including in particular speech difficulties and to a lesser extent learning difficulties and thirdly there is the general conduct of the boys.
The dental hygiene, particularly of C, concerns me. It appears that notwithstanding that the child has been suffering from some deterioration of his milk teeth which he still has, that up until comparatively recently the mother has done little in an endeavour to have such dental hygiene looked at and if necessary have dental procedures carried out. She says that on one occasion, she approached the dental clinic and that they informed her that these were milk teeth and that all she had to do was wait until they fell out. Now that may be the case but I would have thought that it could be expected by the father that the child, particularly C, should have a little bit more care than that.
There is further the question of their speech disabilities. J is not so bad but as Dr W has said, and there is other material before me from the school and from the Department of Children's Services, C is almost incomprehensible. There is evidence before me that he is now receiving the benefit of speech therapy, from a unit of the school. It is absolutely essential that that matter be continued with and maximised if at all possible.
I have some concerns about the boys. In the report of Mr R, wherein he discusses the matter with the school, it appears that J, as far as I infer from the material there, is a bullied boy. C, of course, does show signs of emotional distress; he curls up and hides under tables.

It is no wonder that children of the tender ages of J and C do show signs of emotional distress. It is quite clear, in my opinion, they love both their parents, they are being torn by what might be said by a less charitable person than myself infantile behaviour on the part of their care-givers and of the support group of the care-givers. It is essential that these children be given confidence. Both people cannot have the children in their possession.
One will have the children, as I have indicated, for a longer period than the other. They must encourage those children to enjoy not only the time with themselves but the time with the opposite party and if they do that instead of having emotional cot cases, they will have fine young men of which they can be proud. But that is a matter for them.
This Court can only do as much as it can. Here I am attempting to determine with whom these children should live for the greater part of their waking life, perhaps not knowing the full circumstances of the case.
Who else are the protagonists in this case? One, we have the father’s present wife, Mrs Boulder, who is the mother of his son who is about 2 years of age. He lives with her and the father. They have just purchased a new house and Mrs Boulder is endeavouring to create a child care centre underneath the existing house. She has approached the relevant authorities and it appears as though it is subject to their setting the house out properly. She will be able to care for, a minimum of two, and as her own children get older she will be able to have strangers, if I may put it that way, into the house, but she can only have a maximum of four children that she can look after.
Mrs Boulder gave me the impression of being a very strong-willed woman. I think she would not accept much angst from anybody at all and I am quite satisfied in my own mind that she would be like a lioness in a den towards not only her own children but towards the father’s children. She would look after them particularly well. Regrettably she has a very dim view of the mother. It may be that she is entitled to have a dim view but not to be so adamant in her refusal to have anything to do with the mother.
She indicates now that she refuses to talk to her on the phone. I think that happened on at least two occasions. Whilst she, herself, may feel justified she has to, with respect to her, bury that because of the boys. She has got to be able to talk to the mother albeit it will be difficult but she must bury those feelings.
That is the type of thing which I am required to look at under s 60CC or one of the things that I am required to look at and that is the willingness and ability of each of the children's parents, and by parents I mean the partners of parents, to facilitate and encourage a close and continuing relationship between the child and the other parent.
I must say that notwithstanding I am sure the present Mrs Boulder is a very worthy woman, I admire her tremendously. She may be a bit self-centred insofar as her views in relation to the mother are concerned. She is protective of the boys, she is afeared that the boys may be cooled by the mother because of what the boys said. If she accepts what the boys said why does not she accept what the boys say in relation to the father? That is one of the difficulties.
If the boys say black is black and that is not in favour of the father, it appears to me she ignores it, as does the father. Where if they say white is white and it is in favour of the father she accepts it and I do not criticise her for that, that is human but unfortunately it is very difficult for the boys and they must have warmth, love, care and affection, particularly boys who are under some disabilities and they have a great deal of problems maximised, exacerbated by the attitude of the parents towards each other.
What can be said against the father? Not much. In the earlier days I think he was a bit of a rake, he was a bit of a mess, he was a drug addict. He might still be. He drank actually to excess, he was involved in minor criminal activities, when he was young. He now seems to have settled down and I compliment the present Mrs Boulder for that. I am sure she does not let him get out of line too often.
I am sure that his job, which he is now working from about I think 6 in the morning until 2 in the afternoon consistently; he works also on Saturday morning; is enabling he and his present wife to do something with themselves and I compliment them upon that. They have their own son, the present Mrs Boulder has a child from a previous relationship, so there are, in effect, four in their family; the two boys, his son and Mrs Boulder’s son.
So far as the mother is concerned, she has lived a somewhat a peripatetic life but has, since she came back from Sydney, generally lived in the K (a northern suburb of Brisbane) area. She has a relationship with a Mr A who is a Kuwaiti whose family appear to come from Asia and he is doing some form of accountancy at University.
I have already indicated, I need not go into it any further, I was not overly impressed with Mr A. His evidence was diametrically opposed in lots of cases to the mother and I say in passing I accept the mother very quickly in relation to Mr A. He seemed to even hesitate over what subjects he has left to do and they being business law and accountancy or law of accountancy. He has two more units to go and he says he will finish them by this semester. I will be interested to see that. He was not questioned as to his right to reside in Australia. I do not know on what form of visa he is living here. He may have emigrated, we do not know; but it was not raised so I take no notice of that.
This is a very evenly-balanced case, as Mr George has said and I have on previous occasions, probably to his boredom, said that there is only feathers which are put in one side of the scale to the other which in an equally balanced case such as this will swing those scales down in favour of one or the other.
What is that balance here? I think that has been pointed out by Mr George, counsel for the mother. It is the consistent compliance nowadays by the mother with the order of this Court. Not only the order of his Honour Baumann FM back in April but also an order of myself. In particular the order of his Honour Baumann FM would have been very difficult for her to carry out.
The father at that time lived in the outer south-eastern area; she lived in the northern area. There is evidence which has not been contradicted that it took her six hours to comply with the order of the Court and I emphasise that initially this was for a period of two hours at the contact centre local to the father where she took three hours in the morning to get there, three hours in the afternoon to go home. She spend the intervening two hours when her children were having contact with the father at a shopping centre. She walked there and walked back.
Subsequently she became pregnant to Mr A. She complied with the orders by taking the children to the father, admittedly three times out of four, that is three weekends out of four she had to do a six hour round trip for herself, a six hour round trip to pick them up. There is no evidence before me that the father offered to ameliorate the enormous and inconvenient times that this woman spent whilst pregnant, becoming heavily pregnant (the child was born in November of last year). There is no evidence before me.
It may be, as was waved from the back of the Court, that he did not know her whereabouts but one would have thought that it would have, to alleviate the children if not necessarily the mother, from six hours in the early period and from three hours one way and three hours the other way, to offer to pick them up at half way. She would not have to have disclosed her address. He had telephone contact with her as I understand.
Whilst I am not highly critical of him I just consider this shows that the mother is determined that these children, notwithstanding her beliefs, and she held them strongly at that time, she believed that it was in the interests of the children they should maintain their relationship with their father; notwithstanding those beliefs and she at no little inconvenience, complied with the orders.
I think that is the thing that swings it in favour of herself. I was quite concerned about this case. I was concerned about her general attitude towards schooling, for instance, of J where he missed 47 days last year of which perhaps 11 to 13 were explained. I did not think the rest were explained very well.
She has not, as far as I am concerned, really worked hard on the hygienic health, the dental hygiene of C. She has not really worked hard upon the speech difficulties of the boys and in particular C. She has not considered, until now, I think, that the children require some specialist assistance in getting over these initial hurdles and I do not think both parties at this stage have really considered the boys.
Taking those matters into consideration I am of the view that it is essential these children know each other. The children have rights in my Court, notwithstanding the amendments of the politicians almost three years ago now. The children have the rights. Parents do not have any rights, they have duties and I think that by allowing the children to remain with their mother those duties will be maximised by both of them recognising what they have to do to advance the welfare of the children; and if anybody can think of a better way of doing it, they had better come up and sit up here.
Consequently, I take into consideration those matters which are relevant under the s 60CC factors, in particular the willingness and ability of each of the parents to facilitate and encourage - I think the mother has shown by her efforts in relation to allowing the father to spend time with the children in accordance with the orders of his Honour Baumann FM and myself, quite clearly indicates that she is endeavouring and will endeavour to continue the relationship between the father and the boys.
I also make it quite clear that I am somewhat concerned about their health. I believe that the mother has now seen that it is absolutely essential. As a result thereof I will not be making a final order but will making an interim order until the mention in December before me. This will enable, I would sincerely hope and recommend that the Legal Aid Commission do assist, in the production of a further, comparatively short welfare report indicating to the Court how the children are settling down and how they are getting on.
Once that comes before me again, it will be before me in December, I am sure that the person who creates that report -
RECORDED : NOT TRANSCRIBED
- either by Dr W or Ms J, both of whom have been seized of this matter; I have not touched upon Ms J’s report which is a little elderly but even she was concerned about the mother's attitude towards the allegations of sexual abuse and I feel as though that has been resolved. Such report to be completed no later than mid-November and be mentioned before me -
RECORDED : NOT TRANSCRIBED
- 1 December.
Otherwise I have had put before me the draft orders by counsel, who I must say did a remarkable job in this case, for the father, and also counsel for the independent children's lawyer. Mr George has not seen fit to put any draft orders before me.
I am of the opinion that the draft orders put before me by the independent children's lawyers are proper and I order in accordance therewith.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:

Date:

[2008] FamCA 321

30 April 2008

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