Gibson and Shaw

FAMILY COURT OF AUSTRALIA

GIBSON & SHAW

[2008] FamCA 1161

FAMILY LAW – CHILDREN – With whom a child lives – 11 year old boy – Father found to have sexually abused a daughter years earlier – Boy refuses to live with mother – Father preferred option to foster care

APPLICANT:

Ms Gibson

RESPONDENT:

Mr Shaw

FILE NUMBER:

BRC

11000

2007

DATE DELIVERED:

8 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

8 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms K Carmody

SOLICITOR FOR THE APPLICANT:

Parker Family Law

COUNSEL FOR THE RESPONDENT:

Mr P T White

SOLICITOR FOR THE RESPONDENT:

Richardson McGhie

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr R Bourke

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED

That orders be made in accordance with the Minutes of proposed orders sealed and attached hereto.

IT IS FURTHER ORDERED

That the matter be removed from the list of cases awaiting finalisation.
That 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.

MINUTES OF ORDER

IT IS ORDERED BY THE COURT:

That all previous Orders be discharged.
That the child L born … April 1997 lives with the Father.
That the Mother and Father have equal shared parental responsibility of the child.
That the child spend time with the Mother at all such times as agreed and failing agreement as follows:-
(a)From after school Friday to before school Monday commencing on the 30 January 2009 and every alternate weekend thereafter; and from after school Wednesday to 8.00pm every week with such visit to extend to an overnight stay at the request of the child, with the Mother to return the child to the Father at 8.00pm if the child does not request to sleep over.
(b)For half of all Queensland gazetted school holidays being one (1) week in March/April, June/July, September/October and three (3) weeks in December/January, being the first half in even years and the second half in odd years unless otherwise agreed.
(c)From 9.00am Christmas Eve to 12.00pm Christmas Day in each year starting 2008.
(d)On the child’s birthday for half a day if it falls on a weekend or school holiday period or from 4.00pm to 8.00pm if on a school day.
(e)On the child’s half-sister N’s birthday from 9.00am to 5.00pm if it falls on a weekend or school holiday period or from 4.00pm to 8.00pm if on a school day.
(f)From 9.00am to 5.00pm on Mother’s Day on the proviso that the child spend 9.00am to 5.00pm on Father’s Day with the Father.
That unless otherwise stated, for the purposes of transportation and changeover, the Father deliver the child to the Mother’s residence at the commencement of the Mother’s time and the Mother return the child to the Father’s residence at the conclusion of the time other than if changeover occurs at the child’s school.
That the Mother and Father are not to expose the said child or allow any third party to do so in adult discussion in particular matters pertaining to Court proceedings.
That the Mother and Father are not to denigrate each other nor allow a third party to do so within hearing of the said child.
That the Mother and Father provide to each other any changes to their residential address, landline telephone numbers and mobile telephone numbers within 48 hours of any change, with each party to facilitate regular telephone communication between the child and the other parent when the child is in their respective care, at all reasonable times.
That the Mother and Father contact each other in cases of emergency where the said child requires urgent medical attention or hospitalisation.
That upon presentation of this Order, the Mother and Father are authorised to obtain information from the child’s educational facility, general practitioner, specialist from time to time at their own expense.
That the Mother and Father shall do all things necessary to ensure that the child attend counselling for such duration to be determined by the Counsellor with counselling not be less than once per month.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11000 of 2007

MS GIBSON

Applicant

And

MR SHAW

Respondent

REASONS FOR JUDGMENT

ex tempore

This is a matter where the future welfare and living arrangements of a child, L, an 11 year old boy who was born in April 1997, is in issue. It is apparent on the material that the child is the product of a troubled relationship which ended when he was a toddler. The parents have experienced their own difficulties in the past and some are continuing. They each refer to a long history of drug use. The difficulties in their relationship have persisted since separation.
The history includes litigation in April of 2003 which involved a child of the relationship between the father and his previous partner, Ms W. That matter was before her Honour Justice O'Reilly in March and April of 2003. In that case, the mother in these proceedings gave evidence supportive of the case being advanced by the mother in the Shaw & W case.
Her Honour delivered judgment on 11 April 2003 and, in that judgment, her Honour made positive findings that the father had sexually abused his daughter of that relationship, J, who was aged 7. Her Honour made parenting orders which included an order that the father was not to have any contact with his daughter, J. As part of that litigation and the judgment which flowed from it, reference is made to allegations which included the prospect that an older child, M, may have also been the subject of abuse and/or that M and/or L may have been witnesses to, or present during, the abuse of J.
Justice O'Reilly declined to make any positive findings in relation to M and L, given her findings in relation to J, and her determination that those positive findings effectively negated the need to further examine the matters in relation to the boys.
What has followed is the fact that, prior to that period and subsequently, L traditionally resided with his mother. However, in March of 2007, L ran away from the mother to live with his father. The reality now is that L refuses to return to live with his mother and it appears that a regime has developed where L largely determines the regularity and duration of his visits with his mother.
In these proceedings, the mother and father are in agreement to the effect that L should reside primarily with his father and be primarily cared for by his father, and spend regular periods with his mother from after school Friday to before school Monday and for half school holidays.
Given the history that I have touched upon, the Independent Children's Lawyer has concerns about those arrangements and is unable to agree to the orders sought by the parties. Mr Bourke, who appears on behalf of the Independent Children's Lawyer, has explained those concerns and takes the view that, given the gravity of the issues in this case, it is more appropriate that responsibility for any decision about this matter should vest with the Court.
Mr White, who appears on behalf of the father, observes that there have been no findings, not even any specific allegations, suggesting that L has ever been abused by his father. He maintains that, in other respects, L is doing well in his father's care and he refers to aspects of the material which suggest that, in reality, the proposals of the parties are the only viable options available.
Ms Carmody who appears on behalf of the mother, refers to aspects of her client's affidavit and, in particular, par 66 where the mother says as follows:
"[L] is now 11 years old and he clearly wishes to live with his Father as has expressed a wish to spend time with me. Although reluctant, the Orders I now seek are in accordance with [L] wishing to live with his Father. I now understand the futility of trying to oppose this."
It is, perhaps, the last sentence of that paragraph which captures the reality facing the parties and, at the end of the day, the Court. L has run away once before when he was almost two years younger. He has informed Ms V in the most recent interview not only that he wishes to reside with his father, but that he intends to do so regardless of what the Courts and any other authorities might have to say about the subject.
Ms V refers to the mother's resignation to this state of affairs and also raises concerns about the prospect of the child residing with the mother in any event, because of some perceived difficulties she might have, in part borne of her own circumstances, but also, in part, acknowledging that whatever difficulties the mother might have in any event, they would be likely to be greatly exacerbated by the prospect of having a difficult to control, if not uncontrollable, 11/12 year old on her hands.
Of course, at the end of the day, even strong willed 11 year old/12 year old children should not be able to dictate to those charged with the responsibility of caring for the welfare of the children, outcomes which may not be in that child's best interests. In this case, there is a history of serious abusive behaviour standing in the father's household and it remains necessary for this Court to address that matter prior to addressing the realities that have confronted the parties to this point.
I do take account of the fact that no specific allegations have been raised against the father in relation to his treatment of L. Of course, that does not remove concerns which arise as a result of her Honour Justice O'Reilly's positive findings in relation to another child. However, in that regard, I note the professional opinion of Dr E, who observed that, given L’s age, the child's safety was no longer an issue.
Given that state of affairs, I am left to contemplate the alternatives to the proposals put forward by the parties. Ms V has again, rather starkly, drawn the lines for the Court in that regard. Given the mother's perhaps difficult but, no doubt, realistic concessions in this case, the only other option available to this Court is to, as it were, call in the Department and have this child placed in care, in the event that the Department responded in that way.
The reality for L is that he has already endured a great deal of turmoil in his life. It is to be anticipated that, if this boy was placed in foster care, he would be extremely resentful. Given the history, he would be likely to continue to take the law into his own hands and, for my part, I could not rule out possibilities such as L ending up on the streets. The reality for L, given that he has now been with his father for over 18 months, is that he is now doing better at his schooling in 2008 than he was in 2007. Although concerns remain for the mother and for the Independent Children's Lawyer, at the very least, the lesser of two evils is to have L residing with his father, rather than exposed to the perils of the alternatives.
That is, of course, putting the case in its most negative form and I trust that life with the father can have some positive aspects for L. Hopefully, his future might be a little more positive than his past, particularly if the father continues to address the all important issues, such as the need for stability in his son's life, the need for education and the need for discipline. The mother has, apparently, struggled with that task. Hopefully, the father will take those responsibilities very seriously.
At the end of the day, notwithstanding that I share the concerns raised by the Independent Children's Lawyer, I am satisfied, on balance, that the orders proposed by the parties represent the best possible outcome for L, in all the circumstances, and accordingly I make orders in terms of the orders proposed by the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate:

Date: 13 January 2009

[2008] FamCA 1161

8 December 2008

Key Legal Topics

Areas of Law

Family Law