Game and Walker (No. 2)

[2007] FamCA 1621

FAMILY COURT OF AUSTRALIA

GAME & WALKER (NO. 2) [2007] FamCA 1621

FAMILY LAW – CHILDREN – Living arrangements – Relocation – Inadequate material – Judgment “by default”

APPLICANT:  Mr Game

RESPONDENT: Ms Walker

FILE NUMBER: BRF 11173 of 1999

DATE DELIVERED: 29 November 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 17 January, 29 June and 29 November 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr B Laurie

SOLICITOR FOR THE RESPONDENT: Porter Hulett

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms J Hogan

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: SBA Family Lawyers

Orders

1. That the children, J, born … October 1995, and E, born … June 1998, live with the Mother.

2. That the Mother have sole parental responsibility for the care, welfare and development of the children.

3. That the children spend such time with the Father as may be agreed to between the parties.

4. That the children communicate with the Father by telephone each Sunday between 6.00 – 6.30 pm Queensland time.

5. Pursuant to s65DA(2) and s62B, 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

1. That the Father is to provide to the Mother through her solicitors a mobile telephone properly equipped for the purposes of facilitating such telephone communication.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 11173 of 1999

MR GAME  

Applicant

And

MS WALKER  

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, counsel for the Mother makes a preliminary submission to the effect that the Court should proceed to enter judgment in his client's favour by default or, alternatively, I surmise, that it is contended that I should conclude that, in essence, the Father has not presented a case sufficient to call for an answer and, further, that it is otherwise in the interests of these children and the parties that this litigation be brought to an end. 

2. The Independent Children's Lawyer submits that it is in the children's best interests that there be finality in this process, that the litigation has gone on for too long and that extensive resources have been applied to this case already and, should the matter not be finalised today, those not insignificant resource implications need to be taken into account.

3. Of course, I also need to take into account the interests of other litigants in the Court awaiting allocation of the limited resources of this Court.

4. The Father, who appears representing himself, resists the proposition that the Court should enter judgment by default and, in essence, says that the case should proceed on the evidence that is before it, subject to him being able to call some further oral evidence from some other witnesses. 

5. On the material that is before me, there are a number of aspects of this case which are potentially very worrying.  The matter before the Court relates to the future welfare of two children, in particular, J, born in October 1995, and E, born in June 1998.  The parties separated finally in February 1997 before J was born, or even conceived. 

6. On the material, it seems that the Father had some limited contact and intermittent contact from time to time with the children, or J, in particular.  I gather from some of the material that, at one point, the Father contended that he has not seen the child from 1999 until this year; in other material there is a suggestion that the Father last saw the children in February/March 2001. In any event, it is common ground and, indeed, one of the Father's complaints, that he has seen very little of the children at all since the separation. 

7. In June 2005, the Father filed an application for joint parental responsibility and sought orders for contact. As a result of the commencement of that litigation, I have before me a number of commissioned reports, including a report from a psychiatrist, Ms B, in June 2006; a further report by Ms B in October 2006; a report by a psychiatrist, Dr H, in November 2006; a Family Report by Ms B in June 2007, and a further Family Report by Ms B in November 2007. 

8. As I understand the case, it is common ground that there has been severe conflict between the parties at any time they have come or been brought together since separation and, as I say, there has been litigation for a number of years. The matter came before me in January this year as part of the new initiative of the less adversarial process, and was first before me on 17 January, when the Father informed the Court that he resided in Victoria.  The material in the report indicates that the Father has resided in Victoria for a number of years and, no doubt, this has compounded the difficulties of the children having any regular contact or relationship with their father.

9. The Father was to inform the Court on the first day of the hearing that the Mother was deliberately undermining his prospects of having a relationship with the children and further informed the Court that, notwithstanding the application before it was for contact orders only, that he was, in fact, seeking an order that the children live with him.  The Mother, for her part, informed the Court that the Father had not, in the past, committed to his relationship with the children and that he demonstrated no real interest in any relationship with E and raised serious issues about her concerns about the Father's possible abuse of J.

10. The Independent Children's Lawyer raised concerns about the matters raised by the Mother and concerns about the Father's issues, to the effect that the Mother would not foster any relationship between the children and the Father. 

11. Having regard to those matters and, in particular, to the Father's stated intention to press for orders to have the children relocated to live with him in Victoria, I made a number of orders on 17 January designed to address the lack of contact between the children and their Father, with provision for the introduction of some limited contact under management and supervision at the Family Court and orders for telephone communication. 

12. In relation to the process, I made the following order, number 11:

    The Father shall file an Application identifying what orders he seeks in terms of time spent with the children, with whom they should live and where they should live, within 21 days from today.

13. I then made subsequent orders requiring the Mother to file any response and a Notice of Risk of Child Abuse within 21 days of receipt of the Father's application. 

14. The Father did not comply with that order within the 21 days specified in the order.  Included in the orders I made on that day was an order that the matter be adjourned for further hearing to 29 June.  Not only did the Father not comply with the order within the time specified, he had not complied with the order some six months later when it came before me again on 29 June. 

15. The record will show that, on that occasion, it was explained to the Father that, given the serious nature of his proposals, which required the children who had barely spent any time with their father to be removed from their mother and their care arrangements in Queensland, to reside with him in Victoria, it was imperative that he provide the Court and the Independent Children's Lawyer and the Mother with information about the proposed arrangements for the children, and that this would really be a prerequisite to the prospect of the children either living with the Father in Melbourne or, at this stage, of even being able to spend time with their Father in Melbourne. 

16. In addition to making those observations directly to the Father during the course of the second day of the hearing, such observations were followed by specific orders designed to reinforce the importance of those matters and to impose upon the Father an obligation to provide this vital information.  In particular, I made the following orders in paragraphs 6 and 7 of the orders of that day, and I quote:

    (6)  The Father file and serve an affidavit of evidence-in-chief on or before 16 August 2007 and at the commencement of that affidavit, the Father set out the orders he seeks in relation to where the children are to live, where and when they spend time with each parent, how transport arrangements would be facilitated and any other specific issues relating to health, welfare, education and restraining orders.

    (7)  The Father file and serve any other affidavits from any other witnesses he intends to rely upon on or before 16 August 2007.

17. Again, I made subsequent orders requiring the Mother to file material in response to the Father's material once he had complied with these orders.

18. The need for the Father to file affidavits and/or applications setting out these matters was the essential first step in the process, because it has always been a problem in this case that the Father's circumstances and proposals have remained, at best, unclear. 

19. The Father yet again failed to comply with my orders either by 16 August or at all and, as a consequence, the matter was listed for a compliance check hearing on 5 October. 

20. The Father failed to appear at that mention, either personally or by telephone, but, in any event, further orders were made on that day by Registrar Stevens directing that the Father comply with the orders number 6 and 7 earlier referred to in this judgment on or before 18 October.  Accordingly, the Father was put on notice, as it were, on yet another occasion, of the need to file material.  On that occasion, being 4 October 2007, Registrar Stevens could not have been clearer in terms of stressing the importance of the need to comply with my orders and her orders by adding to order number 1 a direction that failure to comply by the Father would result in the matter being listed before a Judge for a default order application by the respondent on 48 hours' notice.

21. Notwithstanding that the Father was put on notice that his failure to comply would result in the matter being before a Judge for default orders, he failed to comply with that order by 18 October.

22. The father attends before the Court today and purports to rely upon an affidavit which was filed, I gather, yesterday, which was placed before the legal representatives for the Mother today.  It is one page of affidavit material which merely asserts that the Father wishes to have the children live with him either in Melbourne or in Queensland.  There are none of the essential details relating to the living arrangements, care arrangements, transport arrangements, proposals for time spent, or any evidence relating to health, welfare, education of the children or the like.

23. The Father says that, with a phone call, his partner of a number of years and mother of their young child, and the person who would be, I gather, the day-to-day care giver of these children, would attend to give evidence orally.  Of course, in orders made by me earlier this year, I ordered that the Father file affidavits from any other witnesses he intended to rely upon.  He has not.  He informs the Court from the Bar table that he requested his partner of a number of years and the surrogate mother of these children if they were to live with him, to file an affidavit, and she refused to do so. 

24. One of the many difficulties for the Father in seeking to prosecute a case in this way is that, included in the material he says that the Court should rely upon in support of his case, is evidence which emerges from a welfare report which, on its face, indicates that the Father's current partner, Ms S, complains that she has been the victim of domestic violence at the hands of the Father on, at least, three occasions that I recall: once, when he put her head through a fish pond; another occasion when he broke her nose, and another occasion when he broke her rib.

25. Further, in the same report, when the Father advised the report writer that he wanted to have the children live with him, Ms S indicated to the report writer that she only wanted to have the children with her on holidays.  These essential matters needed to be addressed by the Father and Ms S in proper affidavit material filed in a timely fashion which would enable the Mother and the Independent Children's Lawyer and the Court to properly consider such important matters.

26. One may be left to draw an inference that the reason Ms S has not filed an affidavit is because she does not support the Father's application to have the children live with him, or that she would be exposed to the prospect of disclosing issues such as domestic violence in the way that she has disclosed to the report writers. 

27. As I say, this matter is one which raises very serious concerns.  The material that emerges through the welfare reports includes serious allegations of domestic violence, sexual abuse of children and parental alienation of these children from the Father.  They are grave matters which would require proper consideration on all available relevant evidence.  The fact of the matter in this case is that this Court has very little, if any, of the relevant evidence which might be produced by each of the parties available to it.

28. The Father's one page affidavit does not properly address any of those  important relevant issues and fails abysmally to address the other important matters which he has been asked to address on at least three occasions relating to his proposals for the care of the children and his justification to have them removed from Queensland. 

29. The fact of the matter is that, for whatever reason or reasons, these children have resided in Queensland all their lives.  J has resided with her mother at all relevant times.  E has barely met his father.  He has resided from time to time with his mother and sister, and on other occasions with his material grandmother. 

30. The Father asks this Court to remove these children from their living arrangements and from Queensland, from their schools, from their friends, from their activities, and place them with a comparative stranger in a place or places unknown, to attend schools unknown and to be cared for in circumstances not known to this Court, and would argue that such a radical prospect is justified because of the gravity of the case he wishes to present against the Mother.  Well, the problem is, he has presented no such grave case.  He has not presented a case at all. 

31. The reality is that I am simply not in a position to contemplate the prospect of uprooting these children and sending them to some place not known to this Court.  The options available to me are either to send this case away yet again, or to proceed to make final orders in relation to, at least, the children's day-to-day living arrangements.   Nothing the Father has said to me today, or on any of the prior occasions, is such as to suggest that an adjournment would serve any purpose.

32. The father has been unable or unwilling to comply with orders and directions and been unable or unwilling to properly address the serious issues before this Court, and nothing is said today which suggests that yet a further delay or adjournment of this process would result in any different outcome in terms of his case preparation.  Accordingly, to my mind, an adjournment does not serve any purpose. 

33. Further, and in addition, I am well satisfied that it is against these children's interests to further delay the question of settling at least their living arrangements.  They have been interviewed on four occasions.  Evidence would indicate that the children are well aware of the conflict between their parents and have been inappropriately embroiled in that conflict by each of their parents.  On the face of the material, there is much to be concerned about over the way the Mother has managed that aspect of her care and, on the material before me, it is disturbing to observe that the Father was apparently prepared to use some of his very limited precious time with the children to engage in similar destructive activities.

34. It would appear, on the face of it that, in the years since separation, these children have had much on their plates and are struggling with a number of aspects of their day-to-day lives as it is.  I am of the view that the last thing they need is the prospect of further protracted litigation, when the almost inevitable prospect is that, in six months, nine months, 12 months' time, the issues will be the same, the standard of the cases to be considered will be the same, and the Court would again not be in a position to properly contemplate the case the Father apparently wishes to press.

35. In all those circumstances, and having regard to the overriding consideration of the best interests of the children, I am satisfied, firstly, that it is not in the best interests of these children to delay a determination of a decision relating to their day-to-day care arrangements and that, notwithstanding my concerns about some aspects of their day-to-day care arrangements as they exist, those arrangements are the only known and viable option before this Court and that I should, in those circumstances, proceed to make orders which, in effect, confirm the children's current living arrangements and dismiss any application, if one exists, as it were, to have the children removed from the Mother.

36. Having determined that aspect of the matter, I remain concerned about the fact that the children are not given the opportunity to have any level of communication or relationship with their father.  I understand that there are problems with the prospect of introducing and enforcing those arrangements, but I just wish to stand the matter down briefly so that people can digest the fact that this case has now become a much more limited one, to enable the parties and the Independent Children's Lawyer to, at least, explore options to see if those matters can be addressed and, if they cannot, then to hear some submissions on how that aspect of that matter might be heard and determined or managed. 

    ADJOURNED  

    RESUMED  

    RECORDED  :   NOT TRANSCRIBED

37. I propose to make orders for telephone contact.  Before I do so, I wish to make one or two observations.  As I have said in an earlier context, everyone here is dealing with the health and welfare of two very young children and it is very clear that, regrettably, their parents are not able to maintain a relationship which would enable the children to readily move between households and, of course, the individual circumstances of the parties also create some logistical problems in that regard.  

38. It is also very clear that the Mother and the Father continue to bear a great deal of ill will towards one another.  I do not know whether that is ever likely to change.  I also know what is never going to change is the fact that J and E have two parents.  Extensive studies, and the legislation which is based on those extensive studies, indicate that it is ordinarily in children's best interests to have the opportunity to have a knowledge of, and a relationship with, each of their parents.

39. What is clear in this case is that these children are presenting with some significant developmental issues and it seems to fall from the Mother herself that, from time to time, she has struggled with the task of keeping these children together and of raising them without difficulty.  J presents as a rather headstrong child who is embracing issues way beyond her years.  E has spent a significant portion of his life separated from his mother and separated from his sister. There have been some issues with the children's emotional and educational development. 

1. The task of parenthood is a difficult one at the best of times.  Single parenthood is even more challenging.  Children are most likely to reach their full potential and to enjoy as positive a life as possible if they have a relationship with each of their parents and enjoy the opportunities that brings.  From what I have read in this case, neither the Mother nor the Father is without their own personal problems.  There is no such thing as a perfect parent, but it seems to me a difficult conclusion to draw at this stage that neither parent is without some positive features.  We are informed that children are most likely to reach their full potential if they have the opportunity to draw upon what each of their parents has to offer. 

2. The Mother raises concerns about the Father's commitment to the children, and certainly issues are raised about his willingness to provide financial support for his own children, and I have raised concerns about the level of his commitment to this process. Notwithstanding that, in other ways the Father has demonstrated a significant commitment to the exercise of trying to preserve his relationship with his children, or to develop one, notwithstanding significant obstacles placed in his way financially, geographically and, as he would say, by the Mother's attitude itself.

3. He represents as a person who wants to play a role in his children's lives and has been prepared to confront significant difficulties in that regard.  Whilst it is not inappropriate for parents to have concerns about aspects of the personality and parenting of estranged partners, it is inappropriate for those parents to unnecessarily share those concerns with their children. I would be very surprised if these children were not experiencing the difficulties they have experienced in their relationship with their parents with one another.  More generally, the fact that they are aware of their mother's antipathy towards their father and the Father's antipathy towards their mother, leaves them confused and hurt and uncertain. 

4. I implore the parents to use their very best endeavours to put to one side their personal views about one another and to focus upon the welfare of these two young children.  They do not need the further burden of being told how awful each of their parents is. Children's own identity is made up of what they appreciate is the make-up of their parents.  If they only hear terrible things about their parents, they are only likely to have very negative feelings about themselves. 

5. Studies relating to problematic children, problematic teenagers, young adults in the prison system, on drugs and youths involved in crime, indicate that such young adults are likely to have some of these experiences as part of their background.  Indeed, the Mother and Father in this case each talk about difficulties they have had in their respective childhoods, and one would hope that they would be anxious to save their own children from as much of that as is possible.

6. In this context of retaining contact, the burden falls very heavily upon the Mother from this point on.  She will have final responsibility for the care of these children.  She has, within her hands, the capacity to make it more difficult or easier for her children to have some relationship with their father.  To that extent, the orders to be made in this case are minimalistic, they are safe, but they may well provide the foundation for something more extensive in the future, because it would be in J and E's best interests if there is, at least, the opportunity left open to them as they grow older to spend more meaningful time with their father and to develop a better understanding of that part of their make-up. 

7. I encourage the Father to use this telephone contact positively; I encourage the Mother to promote this telephone contact positively, and to each hold an open mind to more meaningful contact and a more meaningful relationship in the future.  

8. The order I propose to make is an order granting the Mother sole parental responsibility.  I am aware of the presumptions in favour of joint parenting referred to in the legislation, but for a number of reasons which I have, in part, touched upon in this and earlier observations, joint parental responsibility is not viable in this case. 

9. To this point, the parents do not communicate at all and, to the extent that they indirectly communicate with one another through their children, it is entirely destructive communication. They are not demonstrating any ability to communicate, to co-operate, to co-parent, and as the matter currently stands any such order cannot be in the children's best interests, because it would be likely to lead to compromise and conflict. 

10. For the reasons I outlined in my earlier judgment, I have determined that the children should live in Queensland with their mother under the current arrangements, wherein she has primary responsibility for their living arrangements, and I propose to make a broad order that the children spend such time with, and communicate with, their father at such times as may be agreed to between the parents, and I am encouraging them to work towards the stage that they can reach agreement and these children can be free to spend time with each of their parents.

    ORDER DELIVERED

    RECORDED  :   NOT TRANSCRIBED

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate 

Date: 29 November 2007