Gerard and Baynes and Anor (No. 2)

[2009] FamCA 607

FAMILY COURT OF AUSTRALIA

GERARD & BAYNES AND ANOR (NO. 2) [2009] FamCA 607

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

APPLICANT: Ms Gerard

RESPONDENTS: Ms Baynes and Mr Giles

FILE NUMBER: BRC 7275 of 2007

DATE DELIVERED: 4 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 4 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martin

SOLICITOR FOR THE APPLICANT: Hayley Ritchie Solicitors

COUNSEL FOR THE FIRST RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE FIRST RESPONDENT: Legal Aid Queensland, Brisbane

COUNSEL FOR THE SECOND RESPONDENT: Mr Middleton

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:	Ms Kirkman-Scroope
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:	Gill & Lane, Solicitors

Orders

1. That the children Z, born … November 1996, and T born … January 1999 live with the Mother.

AND IT IS ORDERED:

1. That the children, shall spend time with and communicate with Maternal Grandmother at all times as reasonably agreed between the parties, but failing agreement as follows:

   (a)For two weeks of the Christmas Queensland gazetted school holiday period in each year. Such time to include the Christmas period in each even numbered year commencing in 2010;

   (b)For the duration of the June/July Queensland gazetted school holiday period in each year;

   (c)For one half of the Easter school holidays in each year with the maternal grandmother to have the second half in 2010 and in each even numbered year thereafter and the first half in 2011 and in each odd numbered year thereafter. Provided such time is exercised in Cairns with the maternal grandmother to provide the mother no less than 21 days notice of her intention to spend time and provide her with details of the proposed travel arrangements as detailed in Order 9. The maternal grandmother bears all expenses incurred.

   (d)On not less than two (2) long weekends including long weekends with a pupil free days occurring Monday or Friday in each year provided such time is exercised in Cairns with the maternal grandmother to provide the mother no less than 21 days notice of her intention to spend time and provide her with details of the proposed travel arrangements as detailed in Order 9. The maternal grandmother bears all expenses incurred.

   (e)By telephone on the children’s birthdays, the maternal grandmother’s birthday and maternal step grandfather’s birthday from 5:30pm to 6.30pm with the Maternal Grandmother to initiate the call to a number nominated by the mother;

   (f)By telephone each Wednesday and Sunday from 5.30pm to 6.30pm with the Maternal Grandmother to initiate the call to a number nominated by the mother;

   (g)By telephone on Christmas Day when the children are in the mother’s care on Christmas Day for a period of one (1) hour at such times as agreed between the parties, with the maternal grandmother to initiate the call to a number nominated by the mother. Provided the mother be at liberty to telephone the children when in the maternal grandmother’s care on Christmas Day for a period of one (1) hour at such times as agreed between the parties, with the mother to initiate the call to a number nominated by the maternal grandmother.

2. That the children, shall spend time with and communicate with the Father at all times as reasonably agreed between the parties, but failing agreement as follows:

   (a)   In 2009 for the second half of the Queensland gazetted school holidays in September / October provided the children live at the maternal grandmother’s home. The father is permitted to spend day time with the children away from the maternal grandmother’s home;

   (b)  Provided the father takes the opportunity to spend time with the children pursuant in Order 3 (a) then, in 2010 and 2011 for the second half of the Queensland gazetted school holidays in September / October the father is permitted to spend such time with the children at Queensland provided he give the mother 2 months written notice of his intention to exercise such time and provide her with details of the proposed travel as detailed in Order 9;

   (c)  Provided the father takes the opportunity to spend time with the children pursuant in Order 3 (a) & 3 (b) then, in 2012 the father be permitted to spend such time with the children at Queensland and Western Australia provided he give the mother at least 2 months written notice of his intention to exercise such time and provide her with details of the proposed travel as detailed in Order 9;

   (d)  By telephone on Father’s day and on the father’s birthday from 7:00pm to 7:30pm each year with the father to initiate the call to a number nominated by the mother;

   (e)  By telephone on the children’s birthdays from 7:00pm to 7:300pm with the father to initiate the call to a number nominated by the mother;

   (f)   By telephone on Christmas Day for a period of one (1) hour at such times as agreed between the parties, with the father to initiate the call to a number nominated by the mother;

   (g)  By telephone each Tuesday and Friday from 7.00pm to 7.30pm with the father to initiate the call to a number nominated by the mother.

3. The children shall spend in the mother’s care the Christmas period in 2009 and in each odd numbered year thereafter.

4. To facilitate the children spending time with the father pursuant to orders 3 (a), (b) and (c) that the father will be responsible for booking and paying all of the costs of the children’s airfares.

5. To facilitate orders 2(a) and (b) the mother and the maternal grandmother will share the costs of the children’s airfares. The mother be responsible for booking and paying for the children’s return airfares for June / July period and the maternal grandmother is responsible for the Christmas School holidays return airfares for the children to travel from Cairns to Brisbane and return to Cairns.

6. That neither party shall denigrate the other party in the presence of the children or allow any other person to do so.

7. That all parties are to keep the other informed of a current contact address and telephone number including mobile telephone numbers and will inform the other parent in writing within 48 hours of such change.

8. The parties are to advise each other if they intend to travel with the children away from home for a period of over 24 hours and will provide an alternative contact telephone number or address and itinerary of travel including flight number and scheduled time of departure and arrival.

10. That neither party is to consume or be under the influence of illegal drugs or alcohol while the children are in their care.

11. That neither party shall physically discipline the children or allow any other person to do so whilst the children are in their care.

12. This order operates as an authority of the mother and father to any professional care provider of the children (whether a school, doctor, hospital and all health care professionals) to release information to the mother and father concerning the children and discuss the children’s progress and be provided with all written information, progress reports, photographs, newsletters, at the requesting party’s expense.

13. The maternal grandmother and maternal step – grandfather attend upon a counsellor / therapist for the purpose of assisting them to understand and accept these orders and assist them in conveying their acceptance and support of the orders to the children.

14. That the mother forthwith attend with the children upon Ms R as directed by the Independent Children’s Lawyer for the purpose of having Ms R explain the Orders to the children.

15. That the maternal grandmother and father be at liberty to attend upon Ms R’s session with the mother and the children as referred to in Order 14 above by telephone link in order to help them cope with the orders and demonstrate to the children their support of the order.

16. The maternal grandmother and father be at liberty to contact Ms R Psychologist and be at liberty (at their own expense) to participate in sessions with Ms R.

17. That the father, maternal grandmother and maternal step – grandfather are at liberty to attend school functions notwithstanding the mother may be present.

18. 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.

NOTATION:

A.     The parents agree the Christmas period be 24 December to 27 December in each year.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7275/07

MS GERARD

Applicant

And

MS BAYNES AND MR GILES

Respondents

REASONS FOR JUDGMENT

1. This is a tragic case.  Ms Gerard (“the mother”) and Mr Giles (“the father”) have given birth, as a result of their relationship, to two children; Z, born in November 1996, and T, born in January 1999.  The parties, unfortunately, were unable to continue living together.  They separated and thereafter the children have lived, basically, with the mother.  They had a deal of contact with the maternal grandmother for a period up until 2006, when the mother and her present partner, Mr K, left the southeast Queensland area and went to the Cairns area.  The applicant maternal grandmother indicated she found difficulty in ascertaining where the children were, but eventually, by way of an information order, she found out they were in the Cairns area and thereafter she has endeavoured to resurrect the relationship which she had with the children, particularly with Z. 

2. Z has, for a considerable period, at least two years, expressed a very strong wish to reside with his grandmother.  He has, on two occasions at least, spent a considerable period with his grandmother, once for the 2008/2009 Christmas holidays, and for the Easter school holidays.  At the Easter school holidays, the grandmother decided - as a result of overtures made by Z and supported, to a lesser extent, by T to retain the children.  She made application to this Court, quite properly, for an order releasing her from any order whereby the children had to be returned to the mother.  The matter came on before Murphy J on 29 April, wherein his Honour refused such application and the children returned to the Cairns area.

3. I need say nothing further than - after having heard the evidence of the experts - Ms R, a psychologist from Cairns, Mr W, who is well‑known to this Court, a psychologist here in private practice - that Z is a difficult boy.  He has great problems and, tragically, these problems have caused him to act out in various offensive ways, particularly insofar as the equal shared parental responsibility is concerned, and it appears that he has been sent down permanently from his present school, Y State High.  He had been suspended on at least three occasions this year, mainly for - as it appears to me - disruptive conduct, living in swamps, reading pornographic material, tearing up pornographic material and scattering it around the courtyard, putting himself in a position that he got thumped by a co-student, and generally making a nuisance of himself.  This is symptomatic of his unfortunate psychological profile. 

4. Once again, as I have said, I need go no further than say Ms R, who has had the opportunity of therapeutically treating this boy on at least 35 occasions, comes to the conclusion that, notwithstanding that he is psychologically fragile, she has hopes for the future and indicates that should he continue to receive therapeutic treatment, as and by way of sessions with her or some other psychologist, as she concedes, in Brisbane, that there is hope for him.  This is supported by Mr W, who prepared, in effect, family assessments and family reports for the assistance of this Court. 

5. I say in passing, Mr W, in the report that he prepared for the purpose of the interim hearing, as I understand, was in favour of the children remaining here; he says they should not be separated, with their grandmother, because it appears that Z was expressing strong desires to do so, he appears to be happier down here in Brisbane.  Subsequent thereto, Mr W had contact with Ms R and with the mother and with Mr K, her present partner, and he reversed his opinion - he made it quite clear it was only an interim basis, I emphasise that - and is of the opinion that the children should be returned.  I thought one of the most powerful statements that Mr W in particular said was that, if Z cannot be helped in Cairns, he definitely would not be helped in Brisbane.  I think that was virtually the end of the matter. 

6. Fortunately, the applicant grandmother was assisted - I am sure, by her legal advisers in coming to the conclusion that, really, nothing good would come for Z by continuing on with this case, putting all the parties and witnesses in a position where festering sores could have been reopened and it would alienate particularly the mother and the grandmother from each other even further than what has happened now.  Obviously, they both recognise, quite properly so, that this is not in the interests of Z.  We talk about Z - as I have said before, T is the non-squeaky wheel; no‑one talks about him because he does not give any trouble.  He is bright, he supports his brother and his brother gets support from him.

7. Ms R, who impressed me tremendously.  I found her a bright, alive, dedicated and an exceptionally sensitive witness; a very, very good example of an expert witness as well.  She was ready.  She conceded mistakes.  In particular, she conceded that she should perhaps have seen the maternal grandmother recently.  Quite obviously, she said, "Yes.  I, in effect, fouled up there.  I should have, but I have no excuse."  She was sensitive to Z’s needs.  She is confident that Z can be helped as he comes through a very difficult part of his young life, puberty and moving into high school.  She emphasised the fact that, should he come down to Brisbane, he is going to find himself in a very difficult position in going to another school.  He finds making friends difficult, he does not like change and, whilst she did not say this as clearly as Mr W, her view is that he is capable of being saved, if I may use that word, in Cairns, but less capable of being saved in Brisbane. 

8. Quite properly, as I said, the mother and the grandmother have come to agreements about the main thing, and that is that Z should live in Cairns.  This in no way is a criticism of the grandmother, nor is it a criticism of the mother.  I will be directing a few little words to Z at a later stage but it is quite clear in my mind that Z needs stability, which he would get with the grandmother, I am not for one moment suggesting he would not, he needs directions, he needs control.  As I have said, and once again this is not a criticism of the grandmother, she spoils them rotten.  They get everything done for them, which is, unfortunately for grandmothers, typical of grandmothers, and that is why he likes it.  He gets his own way.  He should not be entitled to get his own way all the time.  He must have discipline. 

9. I was particularly impressed with the fact that he has joined cadets and that he allowed his rat tail to be cut off.  I, myself, personally loathe rat tails, they worry me intensely, but I know how jealously they are protected by the owners of them, and his allowing that to be cut off indicates to me that he is now starting to mature and show some responsibility.  I think the cadets will be wonderful for him.  He obviously has been keen about it, because he was talking about it some 18 months ago, if my memory serves me correctly; he wanted to join the army or the cadets, and I am very pleased to see that he has done that.  The discipline that he will receive there will be great for him and I am pleased, very pleased, for him. 

10. He is a worry.  His schooling is a disaster and I recognise the difficulty that the mother may have had with him.  She has three children from her relationship with Mr K, therefore they have five children in the household.  That would not be easy but, as I have said, they have come to an agreement.  Regrettably, but understandably, they have not been able to agree on everything.  They have gone so far.  It is that last little step that is almost impossible and it happens quite frequently.  I am not criticising either of them.  I must say, just having read the amount of material that I have, that they are both trying to do their best but I think it is about time they tried to get back together again, had a cup of tea, and tried to discuss things, putting the welfare of Z first, not their own personal feelings. 

11. Whilst I have listened to the submissions of counsel in relation to spending time with the grandmother, I prefer the submissions of the mother and I would make the orders in accordance thereto, as modified by those submissions of the independent children's lawyer's counsel, which are not of much moment, if my memory serves me correctly.  I will call upon counsel for the respondent mother to put before me a minute of order incorporating all the amendments.  There will be an order that the grandmother do attend counselling, but no restriction upon her; I make that quite clear. 

RECORDED  :  NOT TRANSCRIBED

1. I will order in accordance with the draft put before me and initialled by counsel.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              13 July 2009