Gilbert and Buller and Anor

[2017] FamCA 873

FAMILY COURT OF AUSTRALIA

GILBERT & BULLER AND ANOR [2017] FamCA 873

FAMILY LAW – CHILDREN – Where the parties consent to the child living with the father and for the father to have sole parental responsibility – Where the parties consent to the child spending time with the maternal grandmother – Where the mother seeks there be no orders for time or communication between the mother and the child – Whether it is in the child’s best interests to make orders for the mother to spend time and communicate with the child

Family Law Act1975 (Cth), Part VII

APPLICANT: Mr Gilbert

1^ST RESPONDENT: Ms Buller

2^ND RESPONDENT: Ms Rooney

INDEPENDENT CHILDREN’S LAWYER: Suellen Walker-Munro

FILE NUMBER: BRC 9930 of 2007

DATE DELIVERED: 3 July 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 3 July 2017

REPRESENTATION

THE APPLICANT: Self-Represented

THE 1^ST RESPONDENT: Self-Represented

SOLICITOR FOR THE 2^ND RESPONDENT: Hofstee Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boulton Ms Walker-Munro

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

it is ordered by consent that:

1. The child B born … 2005 (“the child”) live with the father.

2. The father have sole parental responsibility for all major long term decisions for the child.

3. The child shall spend time and communicate with the maternal grandmother at all times as can be agreed between the maternal grandmother and the father, prior to the discussions of any such arrangements with the child, but failing agreement as follows:

   (a)On the fourth (4^th) weekend of each month from after school Friday to 5:00pm Sunday or as otherwise agreed;

   (b)In the gazetted Queensland school holidays as agreed from time to time; and

   (c)Other such time as may be agreed proximal to the child’s birthday, Easter and Christmas;

   (d)With changeovers to take place at an agreed midpoint between the residences of the maternal grandmother and the father or as otherwise agreed; and

   (e)By telephone at any reasonable time with the father to facilitate any request by the child to call.

4. The maternal grandmother shall be at liberty to attend the child’s school for events which are open for family members to attend.

5. The father shall immediately notify the maternal grandmother, by email or SMS, of any serious illness or medical emergency pertaining to the child.

it is further ordered that:

1. The mother be at liberty to provide to the father an email address, postal address and/or telephone number for the purposes of the child communicating with the mother.

2. The mother be at liberty to spend time with the child at any reasonable time as may be agreed between the parents in writing.

3. In the event the father is provided with a means of communication from the mother, the father shall facilitate any reasonable request by the child to communicate with the mother.

4. The mother be at liberty to send the child cards and gifts and the father shall facilitate the child receiving those cards and gifts.

5. This order is authority for the mother to obtain from the child’s school, at her cost, all school reports, newsletters, school photos and other information or documentation normally provided to parents.

6. It is requested that the Independent Children’s Lawyer enquire of the child’s psychologist, Mr F, as to his availability and preparedness to explain this order to the child and if Mr F is unable to assist, then the Independent Children’s Lawyer shall arrange for Ms C to explain this order to the child. The father shall ensure the child is presented at a place and time as requested by the Independent Children’s Lawyer.

7. All outstanding applications be dismissed.

8. After a period of thirty (30) days from the date of this Order, the Independent Children’s Lawyer be discharged.

notation:

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilbert & Buller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9930 of 2007

Mr Gilbert

Applicant

And

Ms Buller

First Respondent

And

Ms Rooney

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a parenting case involving the child B, born in 2005 (“the child”). The parties to the application are the father, mother and maternal grandmother.

2. This matter was listed before me today for a five-day trial.  It has a very long history, and it was listed for trial so that the allegations and counter-allegations could be tested and relevant findings made by the Court. 

3. The mother filed a Notice of Discontinuance on 28 May 2017.  She then filed an application in a case on 30 June 2017 in which she seeks the following orders:

   a)The mother relinquish all parental rights to only child, B, born in 2005.

   b)That the applicant and second respondent be ordered never to contact the mother.

   c)A professional legal expert explain the outcome to the child.

   d)All other orders on original application are no longer relevant to the matter.

4. The parties consent to an order that the child live with the father and that he have sole parental responsibility. A minute of order was tendered, signed by the father, maternal grandmother and Independent Children’s Lawyer. During submissions the mother stated that she too consented. The parties also consent to an order providing for the child to spend time with the maternal grandmother. The mother objects to any mention of her in the order and each party made submissions about the precise terms of the order to be made.

issues requiring determination

1. The only issues requiring determination concern what, if any, provision there should be in the order for the mother to spend time with or communicate with the child. The mother opposes any such provision. The father and Independent Children’s Lawyer submit that it is important for the child’s welfare that when the order is explained to him he is made aware that his mother is not prevented from seeing him.

background

1. The father and mother were in a relationship for a number of years, with a number of separations and it seems their final separation was in January 2013.  There is a history of domestic violence between the parties.  There have been numerous protection orders made in favour of the mother against the father.  The father was convicted of assaulting the mother on one occasion.  They each make a myriad of allegations against the other.   

2. The parties have or, rather, the mother and father, have, on at least two occasions, agreed to an order that the child live with his mother and spend time with his father.  There have been a number of occasions when the mother has relinquished her care of the child to the father for varying periods of time, most recently in January 2017, and she has elected to spend no time with the child since that time.  Indeed, she tells me that she definitely will not change her mind in relation to not pursuing a relationship with her son.

3. There have been other times during the child’s life when he has spent no time with his father for varying periods, the longest being two and a half years up to April 2015.   There have been numerous family reports, I think three in all, prepared by Ms C, and there have been two psychiatric assessments of the parties.

4. In the most recent family report prepared by Ms C, undertaken for the purposes of making some independent assessment of how the child was progressing in circumstances where he had been handed over to his father in January of this year, it is rather poignant to read Ms C’s account of her interview with the child.  He described his family environment historically as “like a civil war” where “everyone is at each other” and he is “in the middle taking everything from everyone”. 

5. the child said that he did not know what his mother wanted, because he had not had any contact with her in five months.  He burst into tears and said he just wants to see her.  He understands that it is his mother who decided that he should live with his father and have no contact with her.  He does not know why she did it, because she did not tell him.  He described feeling heartbroken and very upset when he was placed in the care of his father, but he told Ms C that it has been okay living with his father and he denied any worries there. 

6. He reported he is doing better at school.  I note that, on the change of his living arrangements, he had yet another change of school.  He has had, at least, I think, five changes of school during his primary years and he commenced high school when he moved into the care of his father at D School.  He only lasted one term there before being expelled because of his poor behaviour.  He then commenced at E School and is reported to be doing much better at that school.  He has not been suspended in a whole term, which it seems, given his history, is something to take some heart from.  He also sees, on a regular basis, a psychologist, Mr F, at G Group, and it is proposed that he continue to see him.

7. The child told Ms C that he believed he was acting out at D School because he was so upset about not being able to see his mother.  He denied that he was displaying behavioural issues at his current school, other than one verbal disagreement.  He likes the school, has made some friends, and plays soccer there.  the child expressed the view that he wanted to live with his mother and spend time with his father and maternal grandmother.  Indeed, the father, in his submissions to me today indicated that it is his view that it would be in the child’s best interests to live with his mother, subject to certain conditions, and spend time with him and his maternal grandmother, but given the position taken by the mother, that obviously is not an option open to the Court.

8. The child certainly raised some issues with Ms Buller’s current fiancé, Mr H.  Ms Buller, the mother, rejects absolutely any suggestion that her fiancé has at any time acted in any inappropriate manner to her son.  I am not able to make any findings in relation to that and, given the order I propose to make, I do not intend to make any further comment about that, other than to note that the child made some comments to Ms C about his feelings in that regard.

9. The child said that he just wanted to live somewhere happy.  He said that he loved his maternal grandmother and described her as a nice person.  It is certainly clear from Ms C’s interview with the child that he has been exposed to a lifetime of conflict between various adults in his life and this has clearly had a significant impact upon him.  He was very focused, in his interview with Ms C, on seeing his mother. 

10. Since coming into his father’s care, the child has attended upon a paediatrician and has been diagnosed with oppositional defiant disorder and reactive attachment disorder, and a trial of medication was recommended.  the child has indicated extreme opposition to being medicated and the father has acceded to the child’s views in that respect on condition that his behaviour at school, etcetera, improve and, indeed, one can take some heart at least from the fact that in the last term, the child’s behaviour has indeed improved.

11. Ms C says that the child’s presentation, when she saw him recently, was completely different to the last two times she had seen him.  He was polite and talkative.  He spoke in a manner which was consistent with his developmental age and was not indicative of undue adult influence.  He spoke with the individual nuances and level of detail indicative of genuine views and experiences.

12. The child appeared to be at ease with his father.  He engaged with him freely and was responsive when Mr Gilbert talked to him and made requests of him.  The interactions she observed between them caused her to form the view that they reflected a comfortable relationship. 

13. Ms Buller’s position, in relation to the proposed order is, as I say, that she supports the child living with his father and supports the father having sole parental responsibility.  She opposes, though, any information-sharing with her, and, indeed, any suggestion that she need provide a means of communication.  She provides her reasoning for objecting to such orders as seeing them as a means of being subjected to further domestic violence.

14. Ms C notes, and it is certainly clear from the material that I have read, that the child’s life has been very unstable.  He has had numerous changes of school, he has been, at times, in contact with his father and grandmother and, at other times, having no contact with them.  He has been admitted to hospital on an occasion due to emotional distress arising from his home environment.  He has been placed in his father’s care and removed from his father’s care on numerous occasions.  Ms C opines that the child has been significantly affected by his mother abandoning him, as he sees it, to his father’s care and failing to maintain contact with him.  Ms C opines that, in her opinion, it would be psychologically harmful for the child if his mother continues to cut him out of her life, regardless of her reasons for it.

15. The child wishes the adults in his family would stop placing him in the middle of their conflict and allow him to have meaningful relationship with both his parents and maternal grandmother.  This would be the ideal pathway forward as the child expressed it to Ms C.  But it seems unlikely, that that is an option available at least at this time.

16. Ms C recommended, as she had in previous reports, that the court make determinations about the allegations of domestic violence, child abuse and the adults’ facilitation of the child’s family relationships and parenting arrangements and that those findings, then, be used to inform decisions about the most appropriate parenting arrangements for the child.  Of course, the Court cannot force parties to participate in proceedings and, in light of the position taken by the parties, the Court is not in a position to make findings of fact that may have been relevant to inform decisions about the most appropriate parenting arrangements for the child.  Ms C further recommended that if the mother continued to assert that she wanted no arrangements for contact with the child, that she would recommend a continuation of the current arrangement or similar with orders including the option for the child to have contact with his mother if he and she desire it in the future.  And she finally recommended that this report be provided to the child protection authority for its consideration of the child’s disclosures and that her two previous report and psychiatric reports on the adults are provided to assist the authority in its assessment of those concerns.  Neither party is seeking that I make an order in relation to the provision of her report to any child protection authority and, in light of the mother’s position that the child will have no contact with her or her fiancé, there seems little utility in doing so.

how parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

8. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes physical and sexual assault and causing a child to suffer serious psychological harm.

9. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

10. Section 61C provides that each parent has parental responsibility for a child, subject to any order made by the Court.

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

1. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

2. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

3. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

   [3] Banks & Banks (2015) FLC 93-637

discussion

1. As noted the issues in dispute are very limited but given the history I propose to briefly traverse significant historical issues.

2. There are no allegations of physical harm to the child in the care of his father. Indeed, the most recent allegations relating to family violence seem to predate the parties’ separation in 2013 and relate to the parent’s relationship. I have not been taken to any evidence which would cause me to consider that the child is at any risk of future harm in the care of his father.  The evidence suggests that the child is currently content in those circumstances.  He has been receiving appropriate care from paediatricians and psychologists whilst in the father’s care.  The evidence is that he has improved in his behaviour both at school and at home and, I note in particular, Ms C’s comments about her observations of his presentation when she saw him.

3. There are likely to be ongoing psychological issues for the child, not only because of the very troubled history that he has endured, but also because of his mother’s position opposing any orders or any suggestion that she communicate in any way with her son or spend any time with him.  Her reasoning for that, as she says, is because she sees that as a means by which the father can continue his abuse of her, as alleged, and her view that if she engages in any way with the father, that the matter is likely to end up back in court and she indicates that she simply could not endure any further involvement with the court process.  She has reached her wits end and has made a difficult decision based on what she currently sees as the best interests of her son.

4. The mother opposes paragraph 3 of the proposed order, which would require the father to use his best endeavours to keep the mother advised of any long term parenting decisions.  In view of her position, I see no utility in making such order.

5. Paragraph 4 requires the mother to provide the father with a means of contacting her by email or postal address and telephone number. The mother opposes that order.  She indicates to the court that she wants to relinquish entirely her parental role for the child and does not wish to be contacted nor provide any means of contact to the father.  Whilst the mother says that she is firm in her position in relation to this and will not change her mind, I think it important for the child, who will have these orders explained to him, that he at least see reference in them to the mother being at liberty to provide to the father and to the child a means of their contacting her in the future.  It may thereby indicate to the child that, in the future, there is some prospect at least of his being able to communicate with his mother, rather than him inferring that the court has in some way prevented the mother from having a relationship with him or, indeed, the father, by order.

6. Paragraph 5 in the proposed orders provides that the child shall spend time with the mother at any reasonable time as can be agreed between the parents in writing.  The mother opposes that.  The Independent Children’s Lawyer and the father argue strongly for the inclusion of an order along those lines, perhaps with the amendment to provide that the mother be at liberty to spend time with the child at such times as may be agreed between the parents, so that there is, in the order, some indication that there is a possibility in the future of the child seeing his mother which may provide some level of comfort for the child. I propose to so order.

7. Paragraph 6 of the proposed order requires the father to facilitate any reasonable request by the child to telephone the mother.  That is opposed by the mother.  There seems little utility, in my view, to making such an order unless, of course, the father had a means to communicate with the mother and that is opposed by the mother.

8. Paragraph 7 provides that the mother be at liberty to send the child cards and gifts to a postal address provided by the father and that the father facilitate the child receiving those cards and gifts.  Again, the mother opposes any such order.  Unless I make an order that the father keep her informed of his address etcetera, there seems little utility in making that order.  But the mother, of course, for so long as she does know where the father lives, could send cards and gifts if she so chose.

9. Paragraph 9 seeks to restrain the mother from attending at the child’s school unless invited to do so by the father, in writing, and having accepted the invitation, in writing, to the father.  The mother opposes that order. She says it is a form of a restraint, and she is quite right; it is.  She says that there is no basis to make such an order. She has not attempted to do so in the six months that the child has lived with the father. She indicated to the court that it is her intention to withdraw completely from the child’s life. The Independent Children’s Lawyer submits that I should make an order in those terms in the event that the mother changed her mind and turned up at the child’s school:  it would be upsetting for the child. But, of course, I would only make an order for an injunction if I am satisfied that there is evidence upon which to base the necessity for such an order, and I have not been taken to any such evidence.

10. Paragraph 10 of the proposed order provides an authority for the mother to obtain from the child’s school copies of his reports and newsletters and photos, etcetera.  Again, the mother opposes that order saying that she will not do so.  This order does not require her to do anything, it does not require the father to do anything, it does not infringe on what she believes as any means of his persisting with his abuse of her, as she sees it; it simply affords the mother an opportunity an authority to obtain information about the child should she decide to do so in the future. 

11. Paragraph 12 of the proposed order provides that the father is required to immediately notify the mother in the event of any serious illness or medical emergency pertaining to the child.  The mother opposes this and submits that she does not want to be so informed. The independent children’s lawyer has suggested that the proposed order be amended to provide that the father shall, if able, provide the mother with that notice. I propose to so order.

12. Paragraph 13 of the proposed orders, again, is opposed by the mother.  It would require the father, in the event of his travelling outside Australia with the child, to provide the mother with notice.  She opposes such order.   There seems little utility in making that order in the circumstances.

13. Paragraph 14 is also opposed by the mother.  It would require the father to keep the mother notified of the child’s address and emergency contact number. Again, in view of the mother’s position, there seems little utility in making that order.

14. And likewise with paragraph 15, the mother opposes having to keep the father informed of any change of her address, etcetera.  That is not pressed by the Independent Children’s Lawyer or indeed the father.

15. Paragraph 16 provides for Ms C, who has now prepared three family reports in this matter, to explain any orders to the child and requires the father to present the child for that purpose.  The mother is opposed to Ms C being the person to explain the orders. She takes issue with Ms C’s role in these proceedings as a family report writer. She views her opinions with some disdain.  It was suggested by me that the child’s current counsellor, Mr F, be the person to explain the order to the child and the mother certainly supported that suggestion. However, I do not propose to make an order against Mr F, not having had the opportunity to hear from him.  He is the child’s therapist:  he make take a particular view that it is not appropriate for him to be the person to explain the orders, but the independent children’s lawyer has indicated her preparedness to approach Mr F to see whether he would explain the orders to the child, and if he agreed to do so then I think that is entirely appropriate.  If he is not able to do that then in my view the orders should be explained to the child and as an alternative to Mr F I propose to include Ms C as the person to do that.

16. For the reasons outlined I propose to make the order as set out at the commencement of these reasons and I consider them to be in the best interests of the child given the current circumstances.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 July 2017.

Associate:

Date:  6 July 2017