Gerald and Gerald

[2007] FamCA 1575

FAMILY COURT OF AUSTRALIA

GERALD & GERALD [2007] FamCA 1575

FAMILY LAW – CHILDREN – Spending time with

Family Law Act 1975 (Cth)

APPLICANT:  Ms Gerald

RESPONDENT:  Mr Gerald

FILE NUMBER: BRF 4794 of 2003

DATE DELIVERED: 28 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 17 July 2007, 26 & 27 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Westbrook

SOLICITOR FOR THE APPLICANT: Suthers Lawyers

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:	Mr Slade-Jones
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER	Schultz Toomey O’Brien

Orders

1. The Mother and the Father shall have equal shared parental responsibility for the children K born … June 1999 and E born … September 2001.

2. The party with whom the children are living or spending time with pursuant to this Order shall be responsible for the day to day care, welfare and development of the children.

3. The children shall live with the Mother.

4. The children shall spend time and communicate with the Father at all times as agreed between the parties and in default of such agreement as follows:

   a)During the school term:-

   ·Thursday (from after school) until Monday (before school);

   b)During gazetted school holidays:-

   ·For the first half of all school holidays in odd numbered years, and the second half of all school holidays in even numbered years.

   c)The Father shall communicate with the children by telephone each Tuesday between 6.30 pm and 7.00 pm

5. Notwithstanding anything to the contrary:

   a)the children shall spend time between 9.00 am Christmas Eve and 12 noon Christmas Day with the Father in 2007 and with the Mother in 2008; such arrangement to alternate annually.

   b)the children shall spend time between 12 noon to 6.00 pm on Christmas Day with the Mother in 2007 and with the Father in 2008; such arrangement to alternate annually.

   c)on Mother’s Day and Father’s Day the children shall spend time with the celebrating parent from after school Friday to before school Monday and the other parent shall forfeit such time.

   d)on the Mother’s and Father’s Birthday the children shall spend time with the celebrating parent as follows:

   i.if a weekend from 9.00 am to 5.00 pm on that day, and

   ii.if a weekday from after school to 6.00 pm on that day.

   e)on either child’s birthdays both children shall spend time with the Father as follows:

   i.if a weekend when they would not otherwise be spending time with him from 2.00 pm to 6.00 pm on that day, and

   ii.if a weekday when they would not otherwise be spending time with him from after school to 6.00 pm on that day.

   f)on ANZAC Day the children shall spend time with the Father between 8.30 am and 6.30 pm.

   g)the children shall be at liberty to contact either parent by telephone, email, SMS or conventional mail at any reasonable time.

6. The time the father spends with the children set out in para 4(a) is to alternate weekly and shall be extended, if the weekend includes a single gazetted school holiday day or pupil free day, by that day.

7. The time the father spends with the children set out in para 4(b) shall be deemed to commence at close of school on the day school term finishes, and conclude on the morning school resumes, and, the number of nights in each school holiday period is to be used to calculate one half of the school holiday period. If there are an uneven number of nights then the Father shall benefit from that extra night.

8. All changeovers shall be at the children’s school(s) except where changeover shall not coincide with term time, at which time changeover shall be to and from the G Restaurant at R.

9. Each party shall be responsible for their own cost of travel to the relevant contact changeover point.

10. Each party shall keep the other fully informed of any medical issues affecting the children and this Order shall stand as authority for all medical practitioners and/ or schools to release information regarding the children to either parent, at the requesting parent’s expense.

11. Each party will keep the other appraised at all times of their current home telephone number and any mobile telephone number and emergency contact numbers and will advise the other of the change within fourteen days of any such change.

12. Each party shall give to the other at least 2 months notice of any change to their residential address.

13. Each party shall notify the other by telephone of any serious matters concerning the health of the children in respect of any serious illness or injury suffered.

14. Neither party shall denigrate the other party in the presence of any child nor discuss any issues concerning children’s orders in the presence of any child.

15. The parties shall each do all things necessary to ensure the continued attendance of the children upon Ms B, or such other counsellor as nominated by the Independent Children’s Lawyer, for counselling for such time as that counsellor deems it necessary. If the named counsellor should become unavailable for any reason or deem it necessary that the children or either of them attend upon another counsellor then the first named counsellor shall nominate another counsellor and the parents shall each do all things necessary to ensure the continued attendance of the child or children upon that other named counsellor.

16. The parties shall each equally bear the cost of the counselling set out at para 15.

17. The children shall be referred to, and known by, the surname Gerald at all times.

18. Both parents are hereby forbidden to allow the children to be known by any surname other than Gerald.

19. The Independent Children’s Lawyer shall be discharged upon her role pursuant to para. 15 herein being satisfied.

20. 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 publication of this judgment under the pseudonym Gerald & Gerald is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 4794  of 2003

MS GERALD

Applicant

And

MR GERALD  

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the mother for certain orders in relation to two children of her relationship with the respondent, Mr Gerald.  The applicant was born in October 1997.  The respondent was born some years earlier.  The parties commenced a relationship at least in about the year 1991, were married in March 1997 and from such union two children were born, K in June 1999 and E in September 2001.  They separated in about the month of November 2003.  

2. Since separation the separation has been marked by a considerable amount of dispute between the parties, particularly in relation to the father spending time with the children and also there was raised in 2004, if my memory serves me correctly, an allegation of sexual misconduct in relation to the eldest child.  Notwithstanding this allegation, in January of 2005 a consent order was made before Jordan J which inter alia indicated that the children were to reside with the mother, they were to reside with the father as set out and particularised in that order, in particular order 4 and that was complied with until late in 2005 where there was an allegation made by E in relation to sexual inappropriate conduct on the part of the father.  This, to use the old phrase, really set the cat amongst the pigeons.  The mother was mindful, as she says in her material, that she had been criticised quite severely in relation to the steps she took as she saw to protect K from the previous allegations.  As a result thereof she says that she treated the allegation - the complaints, perhaps, is a better word - complaints by E in a very restrained manner, sought support from various people and as a result thereof the spending time with the father for a period ceased.  Subsequently she, I think with the assistance of various experts in the field, allowed the previous consent order of January 2005 to be reinstated.  The father sought and was granted unsupervised contact.  Perhaps I should not use the word contact.  He had unsupervised time with the children eventually, as I said, by consent, if my memory serves me correctly. 

3. The mother filed an originating application but subsequently, and the only application which is before me on her side, is the application of 2 May 2007 which has fallen from her counsel, Westbrook. It really reinforces the original order of January 2005, the original consent order of January 2005, before Jordan J.  

4. The difficulty here is initially there might have been one Rice v Asplund complaint but the complaints made by E, as I have said, took place after the order of Jordan J and it was quite clear that Rice v Asplund does not apply.  Well, if it did apply, the hurdle has been overcome and the matter should be looked at ab initio and I am doing that.  There does not appear to be any objection to the presumption as set out in the Act of equal parenting being applied in this case and I will be ordering that.  I understand that is supported by the Independent Children's Lawyer through their counsel, Slade-Jones.   

5. The question that arises is the concern that the father has that the mother's attitude towards him is not conducive to a relationship being fostered between himself and his two young daughters.  I say in passing he has three other children from two previous marriages.  Unfortunately the boys, the eldest being about mid-30s, who was from one relationship and he do not seem to have much contact but that his daughter who is aged in her early 20s has a close relationship with him and he is supported by his previous wife in not necessarily this application but he has been supported most strongly in previous disputes between the parties.

6. There is no suggestion other than the mother has been protective of her children.  As I said in argument she'd be damned if she didn't and she'd be damned if she did do the things which she did.  K and E complained to her of certain things.  What was she to do?  She was put in a horrible dilemma and I think that it is somewhat unkind of respondents in a case such as this to, which may have happened in the father's case, over-exaggerate the protectiveness of the mother.  Dr W, a psychiatrist who has had some experience in this Court, has given at least two reports.  In his first reports, perhaps he was a little bit kinder towards the mother in that he did suggest that she was, these are not his words but mine, being slightly hysterical and being overprotective.  He was concerned about her attitude towards the children maintaining and increasing their relationship with their father and in his second report, filed 20 April 2006, at page 9, he says and I will read it into my reasons:

   "At best Ms [Gerald] is an overly anxious mother, hypervigilant for evidence of sexual abuse in her daughters, who is inadvertently giving them a negative view of their father.  At worst she is consciously manipulating the situation to her own ends to alienate the children from the father". 

7. This is the matter which causes the father great concern and I can fully appreciate that and understand it.  He is afeared that if the mother continues to - if I might use the words of Dr W - "inadvertently give them a negative view of their father" that this will ruin altogether any relationship he may have between his daughters and himself.  That, of course, is the great concern of the father.  He does not criticise the mother's general mothering of the kiddies.  He thinks that she does a good job.  There has been some worry about food eating but I think that's been overcome.  He is not hypercritical of her in, as I said, general mothering but he is concerned about her emotional overview and the fact that she is not, as he sees it, coming to grips with the statements made by E, and K to a lesser extent now, in relation to the alleged sexual abuse.

8. Dr W, as well as Mr Y, are concerned that if, in fact, the mother continues with any form of complaints, continues with inadvertently giving the children a negative view of their father, that it may be necessary to consider deeply removing the children from her possession, in whose possession they have been since birth, and placing them with the father in order that the damage which could be done by her views in relation to the father would be lessened and/or resolved.  The father indicates that he is of the opinion that he would encourage a warm, loving and affectionate relationship between the children and the mother but he is doubtful if the reverse is applied or will apply in future. 

9. I have had the opportunity, of course, of seeing the mother.  She gives me the impression - this may be totally wrong - that she may not be a person of particularly strong personality.  She does give the impression in the witness box of being a little overcome by the enormity of the matter and being unable really to come to any conclusion how she can handle it but she has given instructions.  One further matter I must touch upon.  In 2006, subsequent to a property settlement judgment of O'Reilly J, in which it is said - I make it quite clear I have not read it - that the father may have been bitterly disappointed with the result of such judgment and he may have felt hurt about the lack of respect that he was given by the learned trial judge. 

RECORDED:  NOT TRANSCRIBED

1. Subsequent to that judgment which was dated 2 June 2006, the house in which the mother was residing and a house which she received by way of property settlement from the judgment of the learned trial judge was, to use a word which is used frequently nowadays, not egged but trashed.  Damage was done to the property and I think there were windows broken.  Oil was poured onto the bed of the mother.  She was of the view that, in fact, it was the father who was responsible for this.  She made complaints to the local police and, in effect, nothing has happened.  The father has given evidence, or rather has informed the police, that he was, in fact, absent by a considerable distance either north of the residence in which the mother was residing or south, as he said he was at the Gold Coast, and that he was not in any way either by himself or by any of his agents, directly or indirectly responsible in the trashing.  The mother was concerned that it was the father, as I have said, and Mr Y does tend to not support her belief, but does tend to try and explain the reason for her doing it and there's much in what he says about this.  But it is clear that the mother is no longer seeking a finding that, in fact, the father was involved.  I do not know how far that goes but it may be that the mother is, whilst not being satisfied that the father was not involved, does not wish to make any moment or issue of it and I compliment her on that and I refer to Mr Y’s evidence wherein he indicates that if that type of thing is exhibited by the mother that there would be a great difficulty for the father to have the children removed from the possession of the mother, as I've said, in whose possession they have been since birth.  Equally this question of the allegations in relation to or rather the complaints of E in relation to sexual abuse, that is not being prosecuted or persevered with, perhaps is a better word, by the mother and that is another thing upon which Mr Y has considered and that is that the mother is not pushing these complaints either about the trashing of the house or about the complaints of sexual interference by the children.  I make it quite clear that is no evidence, as has been set out by the father, save for the statements of the children that he has in any way interfered with the children and I could not be persuaded on the evidence before me to make any finding adverse to him.  Equally, of course, neither the Department of Children's Services, I think it was that at the time, or is it Department of Family?  Whatever they're called at that time, I find that are quite satisfied that the allegations were unsubstantiated and further, I think, the police were of a similar view.  Nothing, as I have said, has happened as a result, either of the complaints of E or the trashing of the former matrimonial home. 

2. What does that leave us with?  It leaves us with basically the concern of the father that the mother's emotional state is such that she would not advance the welfare of the children.  That could, perhaps, be said to be a case because as is conceded, particularly by the father, and has been emphasised by Mr Y, the relationship between the parties, I think he used the word which he would have preferred not to, evidences hatred of each other.  Perhaps I could say the relationship is poisonous.  That any time they see each other these two, even though the father says on occasions they can act in a reasonably responsible manner, it appears that blood immediately rushes to both their eyes and conflicts take place which, of course, is not in the interests of the children.  The children don't wish to see their parents squabbling over imagined or not imagined wrongs. This year things have improved considerably and it may be as a result of the mother's coming to the conclusion that she does not wish to persevere with the allegations of sexual abuse nor of the trashing.  It appears that also that the parties have less contact, direct contact, with each other and as a result thereof the handover of the children which takes place after school, in accordance with the order of Jordan J, is less pressured for each of the parties and as a result thereof the children enjoy themselves. The father is still concerned, particularly in so far as K is concerned, that at the commencement generally, not always but generally, of the period that he spends with them that she is a little reserved.  However, does not take long, up to 10 minutes or something of that nature, and she settles down and has a very good time with him.  Unfortunately in my 30 years of experience in this Court, I have found on frequent occasions that children are put in the position of, by themselves, wishing to explain to the non-possessory parent that, in fact, they wish to be with the possessory parent and that it's acting out.  It's not the way they really feel but they have to show, not only that person but the mother, that I love you and I'm not going to be affected by daddy being here or words to that affect.  And once that initial period is overcome the natural love and affection which K, in this case, and E in particular, have for the father surfaces and they get on enormously well.  That, of course, must be encouraged. 

3. Do I have sufficient concern that the mother will not advance the welfare of the children in their relationship with their father?  It may have been the case but I do feel as though that things have settled down.  In particular, as I have said, the fact that the parties see little of each other nowadays and there is not that catalyst of antagonism, the catalyst being they're seeing each other.  Consequently I am of the view that the mother is not doing anything obviously to interfere with the relationship of the children with their father, nor do I think that she is interfering with the father spending time with the children at all such times as are appropriate and in accordance with the order.  I have touched upon the presumption to equal parental responsibility and I will be making an order to that effect.  The other matters, of course, are of great importance.  I have to consider once I have made the order for equal parenting responsibility that I must consider whether equal time would be appropriate in all the circumstances.  This is an order which the father has sought, and I must say initially he sought an order for residence.  I think they were the words he used, which is a no, no nowadays, our political masters having withdrawn that word from the lexicon in family law and we have to use the word that the children live with him.  I will say now at this stage I do not think that a case has been made for the children to be removed from their mother.

1. The question of the 50/50 split.  This is once again a philosophical bent which has come out particularly from pressure groups indicating that they are of the opinion that this is the best interests of the children.  It can be.  I have already indicated this to the father.  Fifty/fifty or shared time with children can work and can work remarkably well, although, as I've said, in argument to the father, that there is some evidence that the children generally don't like it.  They prefer to have the stability of remaining in one place and spending time in another place.  However, those 50/50s which work particularly well, we never see them.  We never see them in Court, or if we do very rarely, because they work.  Because the parties can agree with each other, because the parties are sufficiently big enough to put their children's welfare ahead of their own personal grievances.  It is quite clear in this case the father recognises the difficulty that is between himself and his former wife.  Mr Y has used the word "hatred" and if you do not have the ability, as these parties generally don't as I am quite satisfied to find, to communicate with each other on an open basis, 50/50 would not work and will not be rammed down the throat of anybody and it can't be accepted.  I could not be persuaded to make that.

2. What then?  It is the orders which are being sought.  I have already touched up on the father's orders.  The mother’s, in effect, is what her counsel said, "If it ain't broke, don't fix it".  What she is seeking now is a continuation, in effect, of the orders of Jordan J in January 2005. 

3. Another matter which the father has raised is a question of counselling for the mother and for the children.  There was a dispute about an order of Jordan J which was order 5 of the orders of 24 January 2005, the consent order, was that the father continue counselling with the children with one Ms M.  Ms M gave an affidavit which was relied upon by the respondent father and she was called to give evidence by way of telephone.  Unfortunately Ms M appears not to have been adequately briefed in relation to her role although by inference I think it could quite readily be found that she was doing what was required of the order and that is that she was to counsel the children with the father.  It is quite clear, as a result of questions posed to her by Westbrook of counsel that, in fact, it was a one-sided report in that she had little or no contact with the mother but directed her attention solely towards the relationship of the children with the father and consequently I do not in any way consider that her evidence, in effect, is even admissible but I have accepted it and I have listened to it. 

4. Dr W I have already touched upon.  He has made it quite clear if the mother continues in a negative way towards the children's relationship with the father, consideration should have been given to removing the children.  I have decided against that, as I have made it quite clear. 

5. I am directed by the powers that be, that is the Act, to consider various factors, and the s 60CC factors are pertinent.  The children have and will have, I am satisfied, a meaningful relationship with both of their parents.  The children do not appear at this stage to be subjected in any way to physical or psychological harm, save as the father has said that there could be psychological harm imposed upon the children by the mother overtly or covertly attempting to interfere with the natural and warm and loving relationship that the children with their father and I find they do have with their father save for that little hiccup at the beginning.  Once again, I emphasise it's not always the case but on some occasions.  I am satisfied that, whilst she may have some time ago perhaps engendered because of this concern about the complaints of the children, I'm not saying evidence, complaints of the children, that she may have been putting stumbling blocks in the road of the father.  I am sure that she is not doing so now and albeit she and the father do not get on and vice versa I am satisfied that she will do everything to ensure that the children have the natural relationship with their father.  The children, perhaps by some of their actions, expressed a view in relation to where they would like to reside or what they want to do, but I take little notice of it. 

   RECORDED :  NOT TRANSCRIBED

   The children are only 8 and 6, just 6, E, in September, and they have not expressed themselves clearly.  Even if they had I would listen to what they say but I would in no way feel bound by what they say.  I have touched up on the fact that the mother may have at some time go not necessarily into fear but made it difficult for the children to have a close and continuing relationship with their father.  That does not apply now and I think basically it's been brought about by perhaps the assistance of the counsellor to whom she has been going and also that the parties have little or no physical contact with each other at all nowadays and I will be ensuring as much as I can that there will be no contact with the parties in between themselves in future. There is no practical difficulty.  The parties live 10 to 15 minutes apart by car on the north coast.  The accommodation offered by the father is more than adequate and I can see no difficulties there.  The needs of the children, including emotional and intellectual needs would, in fact, be advanced by the children being in the possession of either of the parents and will be advanced by their being in the possession of the parents for some period of time during the year. 

6. There is not, as far as I am concerned, any family violence in relation to the children, notwithstanding some complaint by E that daddy throws K around.  I take no notice of that allegation and there is no evidence to support it.  Consequently I feel that I have expressed myself sufficiently wide enough to satisfy the required tests in relation to adequate reasons and I must refer to a judgment of Murphy J in which he has set out a summary of findings with respect to best interests and he sets out the necessity for me to have considered and given primary attention to the need for the children K and E to be protected from, in particular, emotional and psychological harm.  I think that they may have suffered some either inadvertently or advertently but it is no longer applicable.  I have given attention to the nature of the meaningful relationship the children might have and I think they do have, other than as I said, that slight glitch that K has at the first part of any period of time that she spends with her father.  There are other matters that Murphy J refers to. I do not think they apposite in this case.

7. This is not a case in which the principle of Rice v Asplund applies.  The allegations of E, as such, because it was only two and a half years old and the learned Court of Appeal is particularly keen upon the principles as enunciated in Rice v Asplund being brought up at every opportunity and if, in fact, it's not raised by the competing parties before the Judge, the Judge has a duty to raise it himself, a matter which quite concerns me.  However it is there and I am bound by that decision which wasn't appealed by myself, where it was not mentioned at all and the Court of Appeal said I should have mentioned it.  I take that to heart and I will in future. 

8. Consequently, as I have already indicated I am not going to order that there be any change in the living arrangements of the children.  I do not believe the 50/50 can possibly work because of the attitude of the parties towards each other and I am of the opinion that, in fact, the order of January 2005, an order which was by consent I emphasise, should remain in force and effect, subject to any submissions made by the Independent Children's Lawyer in a draft which I have asked him to prepare.  I note in passing that the children are to attend upon a psychologist this Friday and I think the following and I would indicate that in my view that the mother should be guided by such psychologist and act upon her reasonable requests. 

   RECORDED  :  NOT TRANSCRIBED

9. Even though I have indicated the primary matters as set out in the order of January 2005 are concerned, there is the question as whether or no I think it's about three or four hours on each Wednesday should be available by the father in relation to his spending time with the children.  I think it's up until 6 or 6.30 pm.  Mr Y is quite strongly against that and is of the view that it is preferable for the children to spend a longer period of time with the father other than having it chopped and changed.  I myself am of that view too, as well.  It also assists the father in being involved with the children's school work that he will have the responsibility of ensuring that it is done on the Thursday night, at least, and perhaps on the Friday.  I consider that it is not only, and this is the prime requirement, of course, it is in the interests of the children, but I think it's in the interests of the father that, in fact, the children spend more time with the father and this will obviate, at least, two handovers which could bring the parties into contact and not have to attend the G Restaurant or something or other at R on every Wednesday evening.

   ORDERS DELIVERED

10. The father has suggested that pupil free days should, in fact, be treated as public holidays.  I have not heard Mr Westbrook's submissions but whilst I will give him the opportunity, my view is that in a case such as this that the time spent by the children with their father be maximised and I am persuaded to make that order.

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate 

Date:  16 January 2008