Breude and Breude

[2010] FamCA 811

FAMILY COURT OF AUSTRALIA

BREUDE & BREUDE [2010] FamCA 811

FAMILY LAW – CHILDREN – Final parenting orders – Application to relocate – Issue to be considered as part of the application for parenting orders – Section 60CC factors – Children’s wishes – Principles of MRR v GR [2010] HCA 4 applied

APPLICANT: Ms Breude

RESPONDENT: Mr Breude

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 10479 of 2008

DATE DELIVERED: 20 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 18, 19 & 20 August 2010

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Orchard

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

Orders

1. That no Orders be made in respect of the parenting arrangements for the child K born … October, 1993.

2. That K be at liberty to take her clothing, personal effects and chattels with her should she exercise a choice to change her living arrangements.

3. That the child N born … October, 1999 live with the father.

4. That the child A born … April, 1996 live with the mother.

5. That the parents have equal shared parental responsibility for the children whilst in their possession.

6. That the father be permitted to relocate with the child N to W, New South Wales.

7. The father is to notify the mother by text message of any school, medical practitioner or allied health professional that N attends including the name of the institution/person, their address and telephone number within seven (7) days of N’s attendance upon the same.

8. This Order provides authority to any school, medical practitioner and allied heath professional to provide information to the mother regarding all matters pertaining to N’s welfare, development and progress.

9. The parties do not contact each other by any communication device save for the express purpose of discussing the welfare of the children in cases of emergency or to provide their home address or mobile telephone number and to notify each other by text message of any change within seven days of the change.

10. The child N spend time with the mother for the first half of each NSW school holiday for the Autumn, Winter and Spring School holidays and the first half of the Christmas school holidays in even numbered years and the second half of the Christmas school holidays in odd numbered years.

11. The child A spend time with the father during any Queensland school holiday period when the child N is also in the care of the father.

12. That the mother communicates by telephone with the child N each Wednesday evening at 6:30pm (New South Wales time) with the mother to place the call and the father to ensure that the child is available to receive the call.

13. That the parents do all things necessary to ensure that Skype be available for the children to contact each other

14. That the changeovers take place at the Shell Service Station at T.

15. That a copy of the Orders and any Reasons for Judgement be published by the Independent Children’s Lawyers to the Department of Communities (Child Safety Services).

16. That the Independent Children’s Lawyer be discharged.

17. 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 the father will provide an undertaking to the Court that he will not interfere with A’s schooling in any way whatsoever.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10479 of 2008

MS BREUDE

Applicant

And

MR BREUDE

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Breude (the mother) for parenting orders in relation to the three children of her relationship with the respondent, Mr Breude (the father).

2. The parties commenced cohabitation in April 1993.  The first of the three children, K, was born in October 1993.  Shortly after her birth, some five months, she was placed in the care of the paternal grandmother, due to child safety concerns, and in fact, I understand, she had been taken into care by the Department of Child Safety.  The parties were married in 1995.  A, the second of the children, was born in April 1996 and the last child, N, was born in October 1999.  Thereafter, or as from shortly after K’s birth, the Department of Child Safety have been involved with this couple.

3. I have had put before me two Magellan reports, one dated 10 February 2010 and the other 13 August 2010.  In both those reports, there is set out a list of dates of concerns, and they are particularised insofar as the report of 13 August 2010 at pages 2 and 3.

4. The parties separated in or about the month of July 2008.  Immediately prior to  - or rather there was born to the father a child out of a relationship between himself and a lady by the name of Ms T, who was born in March 2008.  I asked the father about this child.  He was of the view that the child was three years of age.  It is not; it is two.  He was also of the view that he had some doubt about the parenting or his fatherhood of the child.  He says that he has sought assistance from the Department of Legal Aid to allow him to pay for a parenting test, which is not insubstantial in fees, and I am quite surprised that he tells me the Department of Legal Aid have in fact funded him to do so, but he has not done anything about it.  He is paying the substantial amount for the maintenance of that child, in something like $13.80 per fortnight.

5. K has, since very early in her life, been of some concern to the Department of Child Safety and she has in fact suffered from depression.  They were quite concerned about her suicidal intent.  She has been a very, very sad girl.  She is now almost 17 years of age, being 17 in October, and has for a considerable period lived with the paternal grandmother.  It appears as though, on the material before me, particularly the Magellan reports and also the two reports of Mr P, that the child is quite comfortable with the paternal grandmother, but is looking forward to becoming independent, and Mr P has touched upon that.

6. The mother is seeking an order that there be equal parental responsibility for the three children and that the children shall live with the father during school terms, between 5 pm Friday until 5 pm Sunday, each alternate weekend.  I refer to the application initiating these proceedings, filed by their mother on the 17 November 2008 – and, may I say in passing that I have no intention of making any order in relation to K.  She is of an age where I believe her wishes should be considered.  She has made those wishes eminently clear to Mr P on two occasions that he has seen her and I would in no way interfere with her, notwithstanding what the mother says is concern in relation to the paternal grandmother’s attitude towards the mother. 

7. I would have thought that any order which would force K into the possession of her mother would be counterproductive, not only to K’s general welfare, but insofar as the relationship between herself and her mother.  I think it is for K to make the running and to seek out her mother should she so desire.

8. I may say in passing that Mr P, in his inimitable fashion, has set out what toxic relations these parties have with each other.  On the one hand, we have the mother complaining of the father, of his penchant for pornographic material, for his having associations with women other than herself during the continuation of the marriage.  Evidence of that is, of course, the birth of the child of Ms T, whom he considers may not be his, but he is not quite sure.  I am quite satisfied, on the material before me, that that has been the case that he is and has been profligate with the use of – I do not mind if he looks at pornographic material, that is a matter entirely for himself, but he has not been able to keep that away from the children, and I am quite satisfied, on the evidence before me, the children are aware of it and have in fact availed themselves of pornographic material and have seen pornographic representations on, I think, iPhones, or something of that nature.

9. Equally, I am quite satisfied that the mother is very difficult, I think really that she is terribly bitter about the relationship between herself and her husband and, regrettably, I feel that she shows all the signs of not yet falling out of love with her husband; that she still wishes to have this relationship continue, and I refer in particular to the fact that subsequent to separation and, I think, subsequent to the father entering into another relationship with Ms G (more of whom anon), the mother and the father have had consensual sex on at least two occasions.  That in itself, as has been pointed out by Mr P in one of his reports, does tend to show there is some confusing of the parties’ relationship.

10. The children are not stupid.  They are aware of the toxic relationships between their mother and their father and this has become quite clear from the fact that the children are difficult.  N initially was particularly difficult and Mr P refers to that in his first report, which was dated 20 March 2009.  At paragraph 67 at sec he refers to the fact that both the boys have been difficult, N in particular, and Mr P went on to say in the subsequent paragraphs that he is of the view that would not be surprising because of the attitude of the parents towards each other.  He, fortunately, has been able to say in his subsequent report, which is annexed to an affidavit of 13 July 2010, that N has settled down and that he is much calmer.  It may be because he has been with his father for a considerable period and has experienced some contact with his mother.

11. Both the parties live at this stage in the southeast Queensland area.  Ms G, to whom I have referred previously, lives at W in New South Wales and the relationship is such that at this stage the father commutes, I think on weekends, to W and cohabits with Ms G down there.  Mr P referred to the existence of Ms G in his first report, and I must say, after having seen and heard her, I am impressed with her and found her to be perhaps a breath of fresh air in this toxic relationship.  She gives me the impression of being a sensitive, warm and loving person.  She expressed her evidence very, very clearly and, in particular, I emphasise the fact that, insofar as A is concerned, whom I have not touched upon very much at this stage, he is a disturbance in her family, which consists of herself, the father, a child which she was delivered of, I think, some five months ago – May of this year – and her two children from a previous relationship, who are aged around about eight and seven.  A is, as she said, sometimes cruel, not only to her children, but also to N, who on occasions lives in the same house as Ms G.

12. As I said, I found her a warm and affectionate person and a person who impressed me greatly, in comparison with the protagonists, and I will use that word advisedly in this case.  She is a mother and they have organised themselves a house in W through a community program, I think it was, and it is a house which will require some restoration, it not having been inhabited for a considerable period.  I mention that because there is an application on the part of the father, in which he seeks orders that the children reside with him, particularly A and N, for him to have permission to relocate A and N from southern Queensland to W.  I will be touching upon that and the well-known case of Rosa at a later stage.

13. The children, in their interviews, have made their feelings quite clear.  A at this stage – I emphasise “at this stage” – wishes to stay with his mother.  Since separation, I think he has been back and forth on three or four occasions.  The last time he returned to his mother, after living with his father, was in June of this year.  He has remained with his mother since and indicates that he desires to remain with her.  He does not and has not in any way indicated that he is afeared of his father to Mr P.  There may be some concern that the father is a disciplinarian.  On the other hand, there is evidence, I think, from the mother and also his own statements that perhaps he is too easygoing with the children and should be more of a disciplinarian.

14. A is 14 and a half.  He is a boy who has had problems.  He appears to consider that drinking and taking of marijuana is not deleterious to his health or anything of that nature.  I am particularly concerned of his relationship at this stage with a 23-year-old, whose name was R, or, as the mother first said, with whom the child is living, was J, who was a 19-year-old and had a two-year-old child and he was the sole carer for it. 

15. I was also concerned that the mother put forward the fact that she has worked particularly hard in getting A, who has difficulties at school, enrolled in a program at the school, where it is directed – a half-day course, each day of the week, working week – is directed towards attempting to assimilate these children and work together as a group.  That was very impressive and I was quite pleased to hear that the mother had done something constructive, but, lo and behold, what happens is, when the father gets into the witness box, leave is sought to give further evidence and he indicates that he has spoken to A and A was at that course for one or two days only and since that time he has not attended school.

16. It has been said by the mother that A is afeard of his father;  that he is afeard that his father will come and take him away from this school.  I do not accept that.  There is no evidence which would in any way cause me to have any concerns about the boy’s attitude towards his father.  He has been back and forth at least three times and that is not the type of thing where a child who was afeard of his father would do.  It may be that he and his father do not get on that well.  As has been pointed out by Mr P, in an argument or rather a face-off between A and the father, there was some heat involved in it.  Once again, that does not support a child being afeard of his father, but to the fact that he does not agree with all what the father says.

17. I was disappointed in that, extremely disappointed, because I had made it quite clear – in fact it made me almost start to think that I couldn’t accept anything the mother had said to me and at that stage the open offer made by the – rather the suggestion – made by the independent children’s lawyer that the “status quo”, that is N being with the father, A being with the mother and K on her own, to on her own devices, was becoming very thin on the ground and very scatty.  I was almost persuaded to order that A return to the father because of what I consider to be a lack of one of those particulars under section 60CC, where the mother was not doing sufficient insofar his education was concerned.

18. Ms G saved the mother.  Ms G has pointed out that in fact A is disruptive.  There has been a relationship between the father and Ms G since, I think, about August 2008 and that that relationship, albeit almost two years of age, should be given every opportunity to bloom and blossom.  As I said, I was impressed with Ms G.  If, in fact, A returned to Ms G and the father, if I allow them to go to W, it would appear to me there would be much too much pressure upon what may or may not be a particularly strong relationship at this stage. Consequently, I am persuaded to allow A to remain with his mother, notwithstanding my misgivings.

19. The mother has sought orders that in fact N come to live with her.  N, albeit of some 10-and-a-half years, is strongly of the view, as Mr P said – I think he said “fiercely of the view” – that he should stay with his father.  I must confess there is nothing on the material before me that would indicate that he is other than being adequately and properly looked after by the father and I think the paternal grandmother on occasions, and I am, as I have said, impressed with Ms G and, if in fact the child is allowed to go with his father to W, I am sure Ms G will do everything that she possibly could in the interests of this child.

20. The parties – I have really not dignified the parties’ disputes with each other by entering into any in-depth dissertation of what A says and B says.  For example, I refer to the wife’s affidavit, wherein she has numerous exhibits exhibited to her affidavit of 2 August, which consist of email or texts between herself and the father.  Most of them, with great respect, don’t help me in any way at all, but just show the pettiness of these people.  On one occasion I think there was something like 15 within a period of one hour.  Now, I am not up to date with texting, but that to me seems excessive and there was nothing of much moment in it.  I will be making an order in fact that the parties do not communicate with each other in any way at all, save for the purposes of emergencies in relation to the children in whose possession they are.  I was not impressed, obviously, with the parents in this case.

21. I am constrained by the Act, but I have to consider whether the presumption of equal parental responsibility has been overcome.  If it has not been overcome in a case like this, it would never be overcome.  These parties cannot agree on the day of the week.  They cannot agree upon the welfare of the children.  They are at each other’s throats all the time.  How could the court possibly expect them to be able to discuss the welfare of their children in a reasonable and rational manner when they carry on in the way they have?

22. I further indicate the department is concerned that certain matters were put in train for these parties in an endeavour to be able to rationalise the disputes between each other for the benefit of the children and it appears, from the second Magellan report, they have done nothing about it.  There was a little attempt on the part of the mother to say that, because she had done a parenting program, she did not have to do it.  I do not accept that.  I refer in particular to the report, I think, of 13 August.  Unfortunately, these pages are not numbered, but it is the last but one page, where it says:

    As detailed above, during the course of the intervention, with parental agreement, both parties had case plan goals.  However, neither parent has actively engaged with the department to address the child protection concerns.  The department is aware that the children continue to self place between their mother, father and grandmother’s residence.

23. By self-place, K has gone to her grandmother.  A goes back and forth.  As Mr P says, he floats from one family to the other and will continue to do so.  N appears to be somewhat stable or was emotionally disturbed last year.  What chance do the children have?  However, I am not going to enter into that debate.  I have been trying to do it for 30 years and it has been totally unsuccessful and even Mr P, who, it has fallen from George of counsel for the independent children’s lawyer, normally finds good things to say about people;  could not in this case.  If only they would wake up to themselves, but it is a waste of time.

24. I am also constrained to consider the provisions of section 60CC and, whilst I am constrained to look at those provisions, I am of the view that I do not have to deal with every one of them, but deal with the ones which I consider are meaningful and which are of relevance to this proceeding.  I do not know whether, in fact, under section 60CC(2)(a) that it is to the benefit of the children to have a meaningful relationship with each of the parents.  K seems to have gone.  A does not know what he is doing, really, with great respect to him.  He is back and forth and N may perhaps have found some stability somewhere along the line.  All evidence before me from various experts and things say that it is absolutely essential for the future proper emotional development of the children that they do have a meaningful relationship with each of the parents.  I will endeavour to do that by making orders for spending time with those parents whose child is not in the care of the other.

1. What can the court do when we say whether there is a need or we are directed to consider a need to protect the children from physical or psychological harm?  I cannot go out to the streets.  I cannot enter into these houses and tell them what to do.  They should listen to those people who are expert in that field, and that is the Department of Communities, and yet they do nothing about it.  They do not do anything, the department says, in an endeavour not to particularly improve their relationship between themselves but to do something for their precious children, but they do not do it.

2. The children have made it quite clear – I’m referring to section 60CC(3)(a) – what they would wish and I for once – albeit N is a little young – I for once feel that I should listen to them and adopt what they say and I have already indicated that that will take place.  What are the natures of the relationship?  For some reason or other there appears to be a reasonably warm relationship of the children with the parents.  N, notwithstanding the fact that he fiercely wants to go with his father, is affectionate with the mother, and I refer to Mr P’s report – A is exactly the same, but he is reversed.  It is a mirror image.  He is living with his mother, but he has a relationship with his father.  How they do it, I do not know, but K might be gone, notwithstanding there is some suggestion, on the part of the mother, that K wants to live either with the paternal grandmother or her, but not with the father.  She is 17 almost.  She is entitled, one would have thought, to – she is in grade 12.  She is doing well at school.  She is entitled, I would have thought, to make her feelings clear and, on the material before me, I am more than satisfied, particularly in relation to Mr P’s report, that she wishes to stay with the paternal grandmother or, preferably, I would have thought she wants to be independent, but at this stage that may be a little bit difficult.

3. I think then perhaps before I go on to section 60CC(3)(e), which is the practical difficulty and expense of a child spending time with and communicating with a parent, I should look at the question of relocation.  As I have indicated, the father wants to relocate to live with Ms G in W.  W is a small town.  He is at present partially employed, I think, in southeast Queensland.  By trade, he is a carpenter/joiner.  He has been bankrupt and it appears as though, not only that has affected his possibilities of earning moneys in the local area, but also, as a result, it appears to be of the poisonous and toxic relationship between the parties that that matter has spread far and wide and that, as a result thereof, the father finds it very difficult to seek gainful employment.

4. He hopes, if he is allowed to go W, to be able to do some professional coaching in sport.  I have not been informed whether he has a coaching certificate or not and I do not know what grade that might be.  However, he is of the view he might make some $600 per week coaching some 20 children, I think it was, at W.  There does not appear to be another coach in the area.  W is very small, but he hopes also to earn moneys as in by way of his trade, either by way of a handyman or he is hopeful that he may be able to get a builder’s licence in New South Wales.  He would be unable to get it here, seeing he is an undischarged bankrupt.  He indicates that it would be in the interests not only of himself, but in particular in the interests of N that he be removed from the poisonous and/or toxic relationship – part of which is his fault, part of which is the mother’s fault – that is present where they live, a comparatively small town.

5. Ms G lives in the W area. She indicates that she has relations in the area and notwithstanding a suggestion made by the mother, quite properly so on the evidence, that if in fact she could not get people to look after the children and, therefore, had to give her evidence by way of phone, how could she possibly say that there was a support network in that area.  As a result of my refusal to allow her to give evidence by phone, she was brought to Queensland and the children were looked after by an uncle in W.

6. I am aware of the case of Rosa, which is referred to as MRR v GR [2010] HCA 4. It was reported in Federal Law Reports in 2010. In that case the High Court held that the initial investigation should be the presumption of equal parental responsibility. I have dealt with the presumption. Thereafter they indicate that there should be the consideration of substantial spending of time with the parties, between each other, and whether or not it is reasonably practicable for such contact to take place. I am more than satisfied that insofar as a relocation order is concerned, a relocation application is not a separate, shall we say, cause or action which sounds under the Act. It is part and parcel of the application for parenting orders. I refer, with approval, to Cowley & Mendoza [2010] FamCA 597 delivered on 16 July 2010 by Murphy J. In it he indicates that he is of the view, and I quite agree with this, that it is not a separate cause of action. It is part and parcel of a parenting investigation and that I have to take into consideration not only those matters under section 60CC, but also the principles as enunciated in MRR v GR [2010] HCA 4.

7. I say in passing that that was quite fascinating in that this case hit the newspapers with some poor woman, who was required to remain in Mount Isa.  There was an appeal.  It was before a magistrate.  There was an appeal to the Full Court and she was still required to remain in Mount Isa.  It went to the High Court and the High Court ordered that the matter be reheard.  During the period that it took from the first appeal to the Full Court she decided to stay in Mount Isa.  However, we do have principles which have been enunciated in what I consider to be a very short judgment of the High Court, to which I have hereinbefore referred.

8. That takes me then to provisions of section 60CC(e).  If, in fact, the child, N, who will be staying with the father – I think that is quite clear – goes to W, it will necessitate some difficulty insofar as contact is concerned.  W is three and a half hours from the town where the mother resides, and it is not only the adults that I worry about – I do not particularly worry about them insofar as travelling is concerned – but N.  If N and A, to cross over, were to travel each weekend to see the opposing party, it would be too much for them.  It is a six-hour trip and that is not in their best interests.  However, I would have thought, as has been suggested, that if in fact the mother and the father, by way of mirror image with A and N, do have one half of the school holidays that that in itself would be a reasonable and substantial amount of contact in all the circumstances.

9. What then have I come down to,  I have still got to consider some of the other matters in section 60CC.  Insofar as the capacity of the parties to provide for the needs of the child, including emotional and intellectual needs, I have already indicated I was a little bit disappointed.  I was very disappointed in ascertaining – which I was not told by the mother – that in fact A was not attending this course, which on the face of it – and I am supported, as I understand, by Mr P – sounds wonderful for a boy who has some difficulties like A.

10. Family violence, of course, can take many things.  It can be sticks and stones would break your bones and words.  It appears, according to the mother, if my memory serves me correct, that only on one occasion has the father been physically violent towards her, but he has been violent in other manners, in other methods, and I think that is probably right.

11. Insofar as section 60CC(4) is a matter which I must consider and that is have the parties fulfilled or failed to fulfil their responsibilities as a parent, I think they have.  I have made that quite clear, I think, and I can only hope that sense may prevail and they will settle down and consider the children are more important than their own feelings.  I have made it quite clear in 34 years that parents do not have any rights in my court, they have duties and those duties are towards the children in an endeavour to bring them up, in this difficult environment nowadays, to the best they possibly can and they have failed in that.

12. Notwithstanding that, taking into consideration all I have touched upon before and in particular the reports of Mr P, the two of them, and the Magellan reports, I am of the view that there should be no order made insofar as K is concerned, that A can remain with the mother and that N remain with the father.  The mother has indicated that should that happen that she will not have any contact with N. That is a matter entirely for herself. If, in fact, she feels like abandoning him, let her do so. I would have thought that the difficulties of having N for contact for one half of the school holidays are not substantial, but that is a matter for her.

13. I feel as though I have complied with Rosa and the substantial contact that is reasonably practicable has been ordered and I will be ordering, in accordance with the draft proposed by the independent children’s lawyer and handed up to me by George of counsel that save for the amendments which I have made therein – yes, I order accordingly then.  The judgment will, of course, be transcribed and it will be forwarded to the parties as early as possible.

    RECORDED  :  NOT TRANSCRIBED

1. I further order the parties do not contact each other by any communication device, save for the express purpose of discussing the welfare of the children in some emergency. 

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 20 August 2010.

Associate: 

Date:  15 September 2010