GAMBLE & BECKS

[2011] FamCA 290

FAMILY COURT OF AUSTRALIA

GAMBLE & BECKS [2011] FamCA 290

FAMILY LAW – CHILDREN – Living with – spending time with

APPLICANT: Ms Gamble

RESPONDENT: Mr Becks

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 2295 of 2008

DATE DELIVERED: 31 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 28 & 29 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kissick of Counsel

SOLICITOR FOR THE APPLICANT: Dale & Fallu Solicitors of D Town

COUNSEL FOR THE RESPONDENT: Mr Bunning of Counsel

SOLICITOR FOR THE RESPONDENT: Simonidis Shoebridge Lawyers of Brisbane

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers of Coorparoo

Order

1. All previous Orders be discharged.

2. The Father have sole parental responsibility for the children B born … December 1999 and C born … March 2001, but prior to making any decisions with respect to the long term issues regarding the children’s health and education the father shall advise the mother in writing of the decision to be made and seek the mother’s input to such a decision.

3. That each party shall be responsible for the day to day care of the children during times when the children are in their respective care.

4. The children shall live with the Father.

5. The children shall spend time with the mother at all times as agreed between the parties but failing agreement as follows:

   During School Terms

   a.   In each alternate week from after school Friday until before School Monday or Tuesday if Monday is a non-school day or pupil free day.

   b.   Such Order is suspended for the weekends during any school holiday period (this shall be deemed to include the first weekend after the school term ends and the weekend before school recommences, and to recommence on the weekend after the school term commences as if the sequence had not been interrupted).

   During School Holiday Periods and on Special Occasions as follows:-

c.   For one half of all school holiday periods being the first half of the Easter, June/July, September and Christmas gazetted Queensland school holidays in odd numbered years and the second half of these holiday periods in even numbered years.

d.   Between 5pm the day before Mothers Day until 5pm the day of Mothers day each year.

e.   On the birthday of the mother from after school the day before the Mother’s birthday or 3pm the day before if it is not a school day, until 6pm the next day, being the mother’s birthday.

f.   On the children’s birthday each alternate year, this year being the first year, with the mother from after school on the child’s birthday until before school the next morning provided the birthday falls on a school day.

g.   If the birthday of the child falls on a non-school day, from 1pm on the birthday day until 9am the next day.

1. Changeovers will occur at the children’s school where possible and where not possible then the mother shall collect the children from the Father’s residence at the commencement of her time with the children and the Father shall collect the children from the mother’s home at the conclusion of the mother’s time.

2. Both parties are restrained from relocating the residence of the children outside a 30 km radius from the D Town GPO.

3. The parents shall not subject the children to lengthy travel time when taking them to and from school.

4. The children shall communicate with the mother by telephone every Tuesday evening at 7pm with the father to call the mother’s mobile telephone number.

5. The father shall advise the mother of any extra-curricular activities in which the children are enrolled and attend.

6. The mother shall be at liberty to attend any extra curricular, sporting or school event or activity the children are involved in.

7. The father shall permit the children to telephone the mother at any time the children reasonably request to do so.

8. Both parents are entitled to receive at their own request and expense any and all information in relation to the health, education and welfare of the children including but not limited to details of any illness suffered by the children and treatment required, school reports, newsletters, notifications of parent teacher interviews, photographs and photograph order forms and details of any disciplinary matters and that this Order shall constitute authority to each of the children’s medical practitioners, allied health professionals and schools to provide that information.

9. That in the event either child becomes ill or seriously injured whilst in the care of one parent, that parent will notify the other as soon as possible and in any event within 24 hours.

10. That in the event of either child being prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child any medication or materials required for treatment will be sent with the child along with a description of the condition for which it is required and the appropriate dosage or method of treatment.

11. That each parent inform the other and keep them informed within 48 hours of any change to his or her residential or postal address, landline and mobile telephone numbers.

12. Pursuant to Section 65L of the Family Law Act 1975 the parties attend upon a Family Consultant of the Brisbane Registry of the Court to be nominated by the Regional Coordinator, Child Dispute Services for referral to a Practitioner for the purposes of explaining the operation of these Orders to the children.

13. That neither party denigrate the other in the presence or hearing of the children, nor allow anyone else to do so in the presence or hearing of the children.

14. Neither party shall bring any further Application before the Court without first obtaining the leave of the Court to do so.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2295 of 2008

Ms Gamble

Applicant

And

Mr Becks

Respondent

REASONS FOR JUDGMENT

1. An application was made by Ms Gamble on 14 September or thereabouts of last year for certain orders in relation to the parenting of two children of her relationship with the respondent, Mr Becks.  Those children are B, born in December 1999, and C, born in March 2001.  This was not the first time, of course, that these parties had been before the court.  They have been before the court on several occasions.

2. But in particular, on 6 November 2009 a consent order after a trial had commenced before Mushin J and in which, as I said, a consent order was made of some extensive length.  I refer to and incorporate that order made 6 November 2009, and I note that the order was prepared by the respondent’s lawyer, that being Mr Becks.  Bunning was perhaps responsible for it.

3. As I have said, that consent order is extensive, but in particular I point to the fact that an order was made where the parties shared the parenting of the children week and week about and made other orders in relation to holidays and communications and child support.

4. Fortunately I do not, as a result of my reasons, have to deal with the question of child support but I can’t quite understand how this court may have had jurisdiction in 2009 to order all arrears be paid.  I would have thought that the arrears were not arrears in relation to the mother but arrears in relation to the Commonwealth of Australia under the Child Support Agency.  However, that order was made by consent but it has not been complied with.  That is one of the large complaints of Ms Gamble.  She says that subsequent to that time there has been a great deal of difficulty.  She inconvenienced herself from moving from E Town in northern New South Wales back to D Town in order to put into force and effect the consent orders and to enable the father to partake of the benefits that he had under the order.

5. She says the father has consistently failed to comply with the orders; that he has, in fact, failed to repay the moneys which he is supposed to have done.  He has not agreed – he has not made any attempt, Ms Gamble says, to comply with that order, although he says he has paid out of the 10,000, I think an amount of approximately $2000 in compliance with it.  He says he has been unable to afford it since he has responsibilities towards the running of his business, his present wife and her children, as well as his own when they come with him on week about occasions.

6. As I have said, there have been difficulties involved in policing part of this order which, prima facie as far as I am concerned, is fraught with difficulties:  that is shared parenting.  I have philosophical objection to it once the parties are in court.  One of the prime requisites, I would have thought, for shared parenting to be successful, whether it is week and week about, two or three days about or whatever it is, is that the parties are able to communicate.  They are able to put to the forefront the children’s wishes and welfare rather than own.

7. It is so often thought and so often said in this court that parents think they have rights.  As far as I am concerned, they have no rights.  They have no rights in my court.  They have duties.  And one of the prime duties, particularly if there is a shared parenting order in force and effect which, as I have said, in contested cases I can’t see how really it could ever be successful, they must endeavour to make it successful.  The children have all the rights. 

8. I have made my point clear, I believe, that I have concerns about shared parenting and I have concerns about parents who are unable to agree upon anything.  And in this case that is classic. 

9. I need only refer to show the evidence of their inability to agree with each other, to the evidence of Ms F.  Ms F was retained to give a family report and she did so by way of an extensive, in-depth report attached to her affidavit filed in this court on 8 December 2010.  As I have said, the application was made by the mother on 1 September 2010, when she seeks orders inter alia that the children reside, live with her, that the children spend supervised contact with the father at such times as can be arranged through D Town Contact Centre, that the mother have sole responsibility for the major, long-term decisions in relation to the children, that the children otherwise live with the mother. 

10. There were three other orders sought:  costs, the releasing of an undertaking given by the father in relation to the payment of $10,000 – I think that was in an order of 6 November 2010 – and for some reason or other, that the court find that the husband moved to G Town on or about 1 April. 

11. But I make it quite clear, so I can get that matter out of the road, that I more than satisfied in the evidence before me that his present wife, from whom he had been separated for a period, moved to G Town, I think at about that time i.e. April 2010, and that thereafter he on occasions, particularly on weekends, journeyed and stayed there sometimes on a Monday which caused the girls to miss school at their school of H School.

12. The mother has complained bitterly about the father having failed to comply, as I have said already, about his breaching the order in effect, about his using the Department of Community and the police in relation to allegations and counter-allegations made by him, allegedly made by the girls to him concerning the attitude of the mother towards them.

13. There was, earlier on in the piece, an unfortunate allegation made by the mother that J, the young boy of Mrs Becks, who is now about 21 years of age, was interfering with B.  There appears to be no foundation in this; however, it did cause an enormous amount of angst in the Becks family and it caused the present Mrs Becks to be somewhat angry towards Ms Gamble.

14. Then there was a counter-allegation that one of Ms Gamble’s children from a previous relationship was interfering with the children.  It just went on and on and it’s just a classic case where we cannot - and fortunately I am supported by the experts in this - consider even attempting to continue the order of shared parenting, notwithstanding the fact that the mother has, in her draft orders which I requested on Tuesday indicated that the orders she seek is that the children reside with her but that the father have shared parenting in that they are to reside with him on week and week about.

15. And other orders which indicate her view that at this stage, notwithstanding her initiating application of September where she wanted supervised time, she has now reverted to shared parenting when she herself, not only to Ms F but to me, under oath, has said it is not working.  It hasn’t worked and, as I have said for various reasons, I believe that it could never work in a case such as this. 

16. What has happened is that the children seem to have now entrenched their views in relation to with whom they would prefer to live.  In Ms K’s report, I think of ’08, she indicated that perhaps the relationship between the children and the father was not all that could be desired as a result of what had happened about that time.  She recommended certain steps be taken in an endeavour to resurrect such a relationship. 

17. Well, the relationship has been resurrected and I must compliment both parties on that in allowing the relationship to be resurrected.  B, the elder of the two now, has become adamantly based in the father’s camp, if I may use that word.  C prefers to stay with the mother but I find on the evidence – and I refer in particular to Ms F’s evidence – is slightly ambivalent.  She would prefer to stay with the mother but she is not as entrenched as B.

18. The father is – I don’t think I have touched upon his response – is seeking an order that the children reside with him and that there be the so-called normal order they reside with him and that there be weekend, alternate weekends contact by the children with their mother.  The mother indicates that the children are close to each other, albeit they do have their tiffs, and that they should not be split.

19. I say that – I think Mr Becks concedes that too as well, and as does Ms F – I say that because the children have, as I have said already, indicated a desire which is contrary to each of their wishes.  B strongly wants to go to the father and C would prefer to stay with the mother.  I had indicated at one stage I might consider the question of splitting the children, leaving C with the mother and B to go to the father.

20. This was opposed most strenuously, as I understand, by Ms F, who indicated that this would, in fact, put the children – entrench the children in warring camps.  One would be in the father’s camp and the other in the mother’s camp, and this would not advance the welfare of the children.  I emphasise that in that their views may become more heavily entrenched as a result thereof they, who will live longer than their parents, God willing, will become, perhaps, alienated because of the pressures which obviously are in existence around the parties. 

21. Insofar as the mother is concerned, I have found the mother arrogant, a domineering and aggressive woman.  This may have been brought about as a result of a somewhat fragile personality.  She made several, I thought, quite surprising allegations about, in one case, about L.  L is a child of Mr Becks’ previous relationship. 

22. She indicated, and I refer to paragraph 78 of the report of Ms F, which I will repeat:

    According to [Ms Gamble], things got worse after [C] was born.  [Mr Becks’] children were rude to her and [L] was running away to have sex in the park with boys at 2.00 am.  Ms Gamble stated that [L] would bend over for any boy.  Ms Gamble recalled telling [L] that she was a slut and she had more meat through her than the local butcher.

23. I ascertained, if my memory serves me correctly, that these allegations made by the mother towards L were made when L was quite young and after asking her as to where she got this information from, as far as I am concerned, the attempt to verify L’s predilection towards sexual experiences with boys was pathetic.  I didn’t see that she had any evidence upon which she could come to that conclusion and I would have thought she had even less right, if any, to castigate L and speak to her in such revolting terms.

24. She also has a view that her children are liars.  I refer to paragraph 107 of Ms F’s report:

    [Ms Gamble] stated inter alia that she would like the children to have a happy future, regardless of which parent they were living with.  She then again digressed from the conversation to explain that her daughters were “liars”.

    And that is in inverted commas as a direct quote:

    She further criticises the father by alleging he is psychotic –

    Paragraph 113.

25. She acknowledges that they both had psychiatric assessments during the course of the various court processes, which did not identify any medical health issues in either her or Mr Becks.  Needless to say, I could go on and on insofar as she was concerned about her attitude towards the father.  Her attitude towards B is somewhat disturbing.  It is quite clear on the evidence before me, not only from herself but from Mr Becks and, to a lesser extent, what B has said that she favours C.

26. C partakes of her mother’s bed.  The mother says not frequently.  C seems to suggest that it is almost every night.  She clearly favours C as against B.  That evidence is quite clear in her statements as well as the statements of the children made to Ms F and, in particular, I emphasise the statement where C herself volunteered that she did on one occasion pick up a baseball bat to protect B from the mother.

27. B is perhaps a young girl who is very determined in her own mind and will not be bullied and/or pushed about.  It appears to me that, in fact, she is bullied by the mother because of the attitude expressed by B and supported by C.  That obviously made me initially, as I have said, concerned that B should definitely not stay with the mother and I am still of that view.  I have been persuaded, however, as I have indicated before, that the children should not be split.

28. Why should I move C?  C, as far as I am concerned, needs the support and nurture of B.  Equally, B needs that nurture and support.  B does have difficulties at school.  She is a very large girl.  I understand there is some suggestion she is 80kg in size, which is somewhat large for an eleven year old girl.  I recommend that as she is going to live with her father there be strict dietary conditions put upon her because the more she remains that size the more she will remain being it for the rest of life, as I only know too well.

29. And it is quite clear that B cannot stay.  But does that mean, therefore, that C should go?  As I have said, I have agonised over that in the last two days and I agonised today over it.  But I am supported by the evidence of Ms F that, in fact, it would be not to C’s best interests that, in fact, they be split, nor would it be in the interests of B that she be removed from her sister.

30. It was pointed out by Kissick of counsel on behalf of the mother that if, in fact, an order was made whereby the children were attending the same school it would mean that they would be separated on very little occasions other than perhaps at night.  I considered that too as well.  I think that was put to Ms F.  She was once again of the view that, no, that would not work:  that there must be some consistency, some stability, and that that stability, she is of the view, is best advanced by being in the possession of the father.

31. I have seen the father and I must confess that I am somewhat surprised that he has not seen fit to comply with orders of this court, albeit made perhaps without jurisdiction, nor of undertakings which he made in November.  There has been an endeavour on the part of the mother to seek declarations and orders in relation to the $10,000.  I refer to the releasing of his undertaking.  I have not considered that that has been prosecuted with any diligence and if that wants to be – if the mother wants that to be enforced she has her remedies under the Act in relation to contravention provisions.

1. I was disappointed in him on that basis.  He appears to consider – I think I put it to him that his first responsibility is not to his children – which it is.  And it’s a responsibility and a duty.  Notwithstanding the fact that he and their mother obviously don’t get on and perhaps hate each other, it is not his right to deny the children from some adequate form of maintenance.  I note in the assessment, which I think is exhibit 4, that his salary has been, or his income, has been set at 65,000 and the mother’s at something less than 30.

2. I compliment the mother on her occupation that she is doing at present.  It is not an easy job.  Someone has to do it, and I admire people who assist elderly people or, in her case, mentally disabled people.  She is obviously ill-paid at $16 or $17 per hour but, unfortunately, that is the going rate.  That was one of the things in her favour in my opinion, but not sufficiently to outweigh what I consider to be requirements of the children.

3. It is incumbent upon me to first consider the question of shared parenting.  I have already indicated that it does not work, in this case would not work and I could not be persuaded to make such an order.  I thereafter have to look at the questions of section 60CC factors and almost all of the ones that I will be referring to are definitely in favour of the father.  It is quite clear that the children in this case would benefit by having a meaningful relationship with both of the children.

4. The only way I believe that a meaningful relation can be nurtured in this case is for the children to be in the possession of one of the parties for the greater proportion of their waking hours, not split as they have been since 2009.  The children are required to be protected from physical or psychological harm.  That is a matter which I have to take into consideration pursuant to section 60CC.  Whilst I perhaps have not gone into the evidence in depth, I have always said and still consider it is essential that parties, particularly in custody provisions, should be able to leave the court with some shred of dignity left and not be torn to pieces by a judge who perhaps generally does not have the full information that is necessary for him to tear them to pieces.

5. I have considered the evidence that is put before me and I am of the view that the children, in particular B, have to be protected from physical and/or psychological harm.  I once again touch upon the relationship between B and her mother which last week blew up to physical attacks by both of them on each other.  I understand B bit the mother, and I think the mother assaulted B, or perhaps that was self-defence.  I don’t know.  But it was an absolute disaster which required the children – the police to be called and B to be removed from her mother’s premises.

6. B went to live with her father, last Monday week I think it was, and since that time has continued to live with him.  It is quite tragic but it is just another sign that the child has come to a conclusion which is inimical to any form of warm relationship, at this stage, between herself and her mother.  C, to a lesser extent I think, must be protected because she has been aware of the attitude of the mother towards B.

7. C has told Ms F, I think on at least one occasion but probably more, of the mother’s view towards B, and she has conceded that she is spoilt in relation to B’s relationship with her mother and her own.  I have touched upon the views expressed by the children and I have touched upon the nature of the relationship particularly of B with the mother, that C seems to get on quite well with the father.  I must however, and it is incumbent upon me to point to the distressing events in relation to the second of the interviews that took place between the children and Ms F, which was on 22 October. 

8. I think the first was about the 15^th – and the second was organised because Ms Gamble was afeard that the children, having been with the father for a period of about a week before that first interview, would perhaps be swayed by the ice creams being bigger on his side of the fence.  On the 22^nd – and I refer once again to Ms F’s report - I consider that the mother’s initial attitude to B, or the children, was appalling.  In particular I refer to paragraph 148 of Ms F’s report and I incorporate that in full.

9. And at 149 Ms Gamble asked C – C had indicated with B at the previous interview that she would live with her father.  At paragraph 149:

   [Ms Gamble] asked [C] if this version of events –

   that was the version concerning her wishing to reside with the mother and as particularised in 148 –

   ...was correct.  When [C] said, “Yes,” in a soft voice, [Ms Gamble] raised her voice and said, “Pardon,” in a loud voice.  She went on to say that the children obviously had been threatened by their father.  When [B] attempted to dispute this comment, [Ms Gamble] told her to stop lying.  It was noted that [Ms Gamble] did not look at [B] when she dismissed her.

10. Subsequently, when Ms F endeavoured to interview C, C commenced shrieking and at paragraph 205:

    After [C] was advised that she had spent time last week with her mother and that she was now to return and spend next week with the father, she responded by screaming hysterically at the top of her voice.

11. This was almost like a comic farce in that she screamed when Ms F was there.  Immediately Ms F left the room, she stopped.  Ms F was somewhat suspicious as to the conduct of the child and opened and closed the door on occasions.  Once the door was open the child screamed.  When it was closed she stopped screaming. 

12. This in itself concerned me exceptionally and, in particular, as Ms F was concerned about it she, when the children left the premises, she followed them and observed that– in paragraph 206:

    They went into a nearby café and bought a hot chocolate.  As they exited the café [C] and [B] saw the report writer.  [C] said to the report writer, “I suppose you realise that I was over the top back there.”  [C] apologised for her behaviour and went off happily with her father and sister, reassuring the report writer that she would be comfortable with her father’s care.

13. This is of great concern and obviously, I would have thought, is something that anybody would be concerned about insofar as the relationship was concerned.  Something started that off.  I don’t know what it is.  I don’t have sufficient evidence to say that it was part of something which had been concocted between the child and the mother and take no notice of that.

14. Perhaps the most important, if not the most important, is s 60CC(2)(c) wherein I have to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I’m more than satisfied that in this case, notwithstanding I criticised Mr Becks’ attitude towards orders of this court, that he had by far, with the assistance of Ms Becks who was a talker, that he would advance the relationship between the children and their mother much more so than the mother would.

15. Insofar as 60CC(4) is concerned, and that is the court must consider the extent to which each of the child’s parents have fulfilled or failed to fulfil his responsibilities as a parent, I consider that both of them have failed in this case, but unfortunately this is not a perfect world.  We cannot expect perfect parents before us.  If we had perfect parents in this world we wouldn’t have a Family Court.

16. These parties are guilty, I think, of not putting the welfare of their children first and not recognising and fulfilling their responsibilities.  Now I have touched upon what I consider is the problems.  I need go no further.  I have touched upon the matters which I have to consider and that is what has happened since separation.  It is quite clear that this is an absolute disaster and it is not in the interests of the children for it to continue on this basis.  It must be stopped.

17. The children must be relieved from the inordinate amount of pressure that they have had put upon them by both parents and the only way to stop it, as I have said before, is for them to stay in one camp, if I can use that word, and travel to the other one on somewhat limited occasions.  The pressure must be off them.  They are only 11 and nine or 10.  They are babies still.  They are entitled to look forward to some of the more difficult years of a young person’s life from now until 18 with some degree of confidence that they will be cosseted and warmed and looked after.  That had not been the case beforehand.

18. I am further required by the question of – the authority of Rosa, recently decided in the High Court.  I have to decide whether there is significant – the orders I intend to make are significant and substantial.  I intend to make the orders in the so-called normal form.  I consider in all the circumstances that that is sufficiently significant and substantial.  Are they orders reasonably practicable to be put into consideration?

19. If the father remains where he is and he will, at either M Town or N Town – I’m not quite sure which because they seem to be moving around all the time – the children are not that far from their mother at all, who at present lives in O Town, and I do not see that there is any difficulties in the orders being made being carried out with a little difficulty at all.  Now I have had before me three draft orders put in by each of the respective parties.

20. I consider that the order which perhaps best covers what I want is that of the independent children's lawyer, save I think that order 7 should be amended by having both parties restrained from relocating the residence of the children outside a 35 kilometre radius from the D Town GPO.  There are two other matters:  and that is this question of the father being released from the undertaking.  He is not offered to be released from the undertaking.  The undertaking remains in force and effect.  And as I have said, the mother, if she wishes to enforce such undertaking, can do so pursuant to the Act and should, I would have thought, get leave to do so. 

21. As I have said, I can see no reason why this court should be put in the position of having to decide whether the father moved to G Town but I have indicated I am not so satisfied.  Insofar – there is a suggestion – well, not a suggestion, an order sought in the independent children's lawyer for, in effect, a ban provision pursuant to the provisions of 118, that the parties not come back to this court without leave. 

22. I have indicated and I agree with such an order and I think that the evidence of Ms F supports a suggestion that the war must stop, that the continued coming back to court must stop, that the children are not to be interviewed either by psychiatrists, family law consultants or anybody else.  They have had enough.  I think there have been six or something of that nature and it is just too many.  They have become sick and tired of them.  Let them live their life, these young girls, and let them grow up and watch the grass grow.  I order accordingly.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 31 March 2011.

Associate: 

Date:              15 April 2011