Grape and Grape

[2018] FamCA 137

FAMILY COURT OF AUSTRALIA

GRAPE & GRAPE [2018] FamCA 137

FAMILY LAW – CHILDREN – agreement reached by parties at final hearing following cross examination of mother – final consent orders made by the Court in the best interests of the children

Family Law Act 1975

APPLICANT: Ms Grape

RESPONDENT: Mr Grape

FILE NUMBER: LEC 665 of 2016

DATE DELIVERED: 6 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 6 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Mason

SOLICITOR FOR THE APPLICANT: Trenches McKenzie Cox

COUNSEL FOR THE RESPONDENT: Mr J Selfridge

SOLICITOR FOR THE RESPONDENT: Slater & Gordon

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales F Town Family Law

Orders

1. That the parents have equal shared parental responsibility for the children, B born … 2005; C born … 2009; D born … 2011 and E born … 2012 (“the children”).

2. That the mother and father consult in writing by SMS, text or email with each other about major long term decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other in relation to the decision to be made;

   (c)They shall make a genuine effort to come to a joint decision;

   (d)If the parents are unable to reach an agreement in relation to a major long term issue affecting the child then the parents shall engage in mediation through the family dispute resolution centre or another appropriately approved dispute resolution provider.

Exchange of information

1. That the mother and father shall:

   (a)keep the other parent informed at all times of their residential address and mobile contact telephone number;

   (b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children (at the requesting parent’s cost);

   (c)inform the other parent as soon as reasonably practicable of any medical condition/health issue requiring the children to be admitted to hospital or be referred to a specialist. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent (at the requesting parent’s cost).

Authority to school/day care

1. That the parents authorise, by this Order, the schools/day cares attended by the children to give each parent information about the children’s educational progress and other day care/school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

Respect for other parent and non-denigration

1. That during the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

   (d)not discuss adult issues with the children including but not limited to these court proceedings and will refrain from involving the children in any parental conflict.

Living arrangements

1. That the children live with the mother.

2. That the children spend time with the father as follows:

   (a)For two (2) visits in F Town between 10.00am and 2.00pm on Saturday and Sunday 10 and 11 February 2018, for a period of four (4) hours substantially in the presence of a member of the father’s adult family;

   (b)Thereafter on 24 and 25 February 2018 and on 10 and 11 March 2018, from 9.00am Saturday until 5.00pm Saturday and from 9.00am Sunday to 5.00pm Sunday;

   (c)Thereafter, and until the father relocates to F Town, from after school/3.00pm Friday until 5.00pm Sunday each alternate weekend;

   (d)Upon the father relocating to F Town, from after school/3.00pm Thursday until before school/9.00am Monday each alternate weekend to extend to before school/3.00pm Tuesday if Monday is a public holiday or a pupil free day;

   (e)For one (1) half of the Autumn, Winter and Spring school holiday period, to coincide with the father’s week off work; and

   (f)Week about on the Christmas 2018/2019 school holiday period, to coincide with the father’s week off work and thereafter for the first half of the Christmas school holiday period in even numbered years and the second half in odd numbered years.

Changeover

1. That unless otherwise stated in these Orders or otherwise agreed to between the parents in writing, changeover shall occur at the children’s schools otherwise, where changeover cannot occur there on weekends/school holidays/special days, changeover shall occur at F Town food court.

Special days

1. That unless otherwise agreed between the parents in writing, the children shall spend time with the mother and father on special occasions as follows:

   (a)For Christmas Day:

   (i)from 5.00pm Christmas Eve until 2.00pm Christmas Day with the father in even numbered years and the mother in odd numbered years; and

   (ii)From 2.00pm Christmas Day until 5.00pm Boxing Day with the mother in even numbered years and the father in odd numbers years.

   (b)On the birthday of the children (including every child), with the parent who does not already have care of the children:

   (i)on a school day, from after school until 7.00pm; and

   (ii)on a non-school day, from 12.00pm until 9.00am/before school/day care the following day.

   (c)With the father on Father’s Day, should the children not already be spending time with the father from 9.00am on the day before Father’s Day until 6.00pm on the of Father’s Day; and

   (d)With the mother on Mother’s Day, should the children not already be spending time with the mother from 9.00am on the day before Mother’s Day until 6.00pm on the day of Mother’s Day.

Telephone communication

1. That the mother and father shall communicate with the children on the telephone on Thursday and Sunday each week but no later than 7.00pm, initiated by the parent without care of the children, with such calls to be unrecorded, uninterrupted and private.

2. That the parent receiving the call will ensure that the mobile receiving it is in a mobile reception area and is charged.

3. That the parents will permit and facilitate the children to telephone the other parent they are not being cared for by, at the request of the children and at all reasonable times.

Specific issues

1. That pursuant to s.121 of the Family Law Act 1975 the parents be at liberty to publish and provide a copy of these Orders and the Reasons for Judgment delivered 6 February 2018 to the following professionals:

   (a)Ms G;

   (b)Dr H;

   (c)The children’s schools/day care;

   (d)Dr J; and

   (e)Family and Communities Services.

2. That the Independent Children’s Lawyer shall explain these Orders to the children as soon as practicable but not later than seven (7) days from the date of these Orders.

3. That the parents are hereby restrained from explaining these Orders to the children.

4. That the mother is hereby restrained from taking the children to attend upon Psychologist Mr K.

THE COURT ORDERS ON A FINAL BASIS:

1. That upon compliance with Order 14 hereof, the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That the mother and the father will not use illicit substances or be under the effect of illicit substances when the children are under his or her care and will not allow or keep the children in the vicinity of people using or under the effects of illicit substances while the children are under his or her care, and further will not keep drug paraphernalia in the house where the children sleep and will not consume alcohol so their blood alcohol is above 0.05 BAC, being the legal driving limit.

B.That the parties are hereby restrained in terms of Rice & Asplund (1979) FLC 90-725 for a two (2) year period from the date of this order, from bringing any further application to this Court as to change in time the children spend with the father, and must first seek to mediate any proposal through family dispute resolution before bringing such application after that two (2) year period.

C.That if either party seeks to bring an application for contravention outside of Notation B, the application must be brought before his Honour Justice Baumann.

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 Grape & Grape 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: LEC 665 of 2016

Ms Grape

Applicant

And

Mr Grape

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(SETTLED FROM THE ORAL REASONS DELIVERED)

INTRODUCTION

1. Although it is not absolutely necessary for any reasons to be delivered in this case as the parties have reached a final agreement, I choose to make some brief observations.

2. The case involved four children, B who is soon to turn 13; C who is now aged eight and a half; D who is soon to turn seven and young E, who turned five late last year.  They are the four children of the parents in this case; the Applicant mother Ms Grape and the Respondent father Mr Grape, who commenced a relationship in 2003 and separated under the one roof in March 2015.

3. As a result of allegations made against the father, some of which have been tested to some degree in the evidence today and some of which remain untested, the father has spent no time with the children of any substantial nature, other than at report interviews, since the mother relocated from the L Town area of Queensland to F Town in northern New South Wales in or about August 2016.

4. The mother brought an Application in the Court after various investigations by the Police and the Department associated with allegations made by the mother based on disclosures she said were made to her by the children of sexual abuse by the father.  They were allegations of a quite serious nature, and notwithstanding no substantiation having been made by Government departments, the mother brought an Application in November 2016 and there have been no proscribed orders for any time at all since those proceedings were commenced despite the matter having been in the Court now for some 15 months.

5. The trial today was listed for three days and commenced with the mother being the subject of cross examination.  After a morning of cross examination the parties – the mother represented by Mr Mason of Counsel; the father represented by Mr Selfridge of Counsel and the Independent Children’s Lawyer represented by Ms Smith of Counsel sought to have the matter stood down to discuss whether the parties could reach some final orders.

6. This afternoon, the parties have offered to the Court, after 5.00pm today, final consent orders which are, it must be said, quite a departure from the starting position, particularly of the mother.  They provide, as set out at the commencement of these Reasons when published:

   a)for the parents to have equal shared parental responsibility;

   b)for the four children to spend time unsupervised time with the father, to recommence this weekend; and

   c)after a further alternate weekend and before he relocates, as he indicates he will, to the F Town area from his current home in the Brisbane area, the father shall have each alternate weekend, after three visits, from after school Friday to 5.00pm Sunday.

7. When the father relocates to F Town, and therefore is in closer proximity to the children’s school, the parents agree that the time shall move to after school or 3.00pm Thursday until before school 9.00am Monday extended to Tuesday, if it is a public holiday or pupil free day.  All children except E are currently attending school.  B was diagnosed in 2009 as being on the autistic spectrum, and his needs are being met by a school with special facilities to support children with his needs.  He seems to be doing well at that school and the evidence suggests, untested as it is, that C and D are also doing well at school.  E appears in all respects to be an active little boy.

8. When cases like this come to the attention of the system, the Court is always concerned about delays that occur in the system where a result of those delays and difficulties in determining matters on an interim basis have the consequential effect of children being unable to spend time with a parent, which is an expression of their rights under the Act, and which should be facilitated by parents and the Court unless it is contrary to their best interests to do so.

9. In this case, since at least August 2016, it has been the mother who has been and maintained her role as the primary carer and her strong position was that the father represents a risk to the welfare of these children.  Notwithstanding the evidence being clear that the mother’s own drug taking presented a risk to the welfare of these children, manifested by some of the text messages she sent to the father in or around about April 2016; the apprehension by the police in May 2016 for driving whilst under the influence of drugs, and her own admissions about her “unwellness”; in an act of almost delusion, for her somewhat, at times, very erratic behaviour prior to her unilateral decision to relocate to northern New South Wales, the mother, almost without any understanding of her own challenges, continued to assert from her initial Application filed in the Court in November 2016 to the start of the trial that the father presented a risk to these children on at least three bases:

   a)That he is a violent person who has committed family violence upon her and has exposed the children to family violence;

   b)The father abuses drugs, not only in the past when the mother, under cross examination, the father himself to the family report writer acknowledged in earlier days they both used drug; and

   c)Most seriously, that the father not only committed sexual abuse upon these children but was a person who was capable of doing so in the mother’s mind.

10. Although I have not had the benefit of the father being cross examined, and although I am well aware of the recommendations of Ms M, the family report writer, which, when she delivered her report after family report interviews late last year, recommended the children spend unsupervised time with the father.  The report writer also expressed opinions, which the Court is not in position to either support or deny, that the mother was coaching the children in their allegations against the father.  Notwithstanding all that, the mother’s evidence today, under cross examine, established, it seems to me, that the allegations of sexual abuse, if they were the subject of disclosure by the children to the mother at all, were not true.  There is no evidence to suggest otherwise in my view.

11. Secondly, that the relationship between these parties was volatile.  It is almost impossible, as the evidence was not fully explored, to form a view about how the tensions between the mother and father were shaped by, at times, excessive alcohol use and/or use of illicit substances such as long-term use of marijuana and less frequent but still troubling use of amphetamines, including the drug known commonly as ice.  I accept that these children were likely to have been exposed to the conflict between the parents as the relationship began to deteriorate. 

12. Thirdly, the mother asserts, without, it seems to me, any evidence at all at the current time that the father continues to use substances – illicit substances – but any view is formed, it seems, from the mother’s own evidence on her perception of the father’s previous use and/or perhaps rumours or comments made by persons known to the parties who have not provided evidence to the Court.

13. The Court may well be, in those circumstances, concerned about making the orders it was asked to make today.  Had this matter proceeded, it may have been an option the Court sadly had to consider as to whether the mother was capable of supporting a relationship between the father and the children.  Thankfully, the period since mid-2016 until now may not have caused the sorts of irretrievable breakdown in the relationship between the children and the father which would have made even a change of residence a very difficult proposition.

14. The father, generously, it seems to me, both in his material and in his comments to Ms M, the report writer, described the mother as a good mum and someone who can meet the needs of the children when she is functioning well.  On the untested evidence, notwithstanding the mother’s difficulties with drugs, as she has acknowledged herself, that seems to be a fair assessment of her capacity.

15. However, one of the real important responsibilities of a parent with primary or substantial care of children is to promote, support and facilitate relationships with other people significant to the child’s care, welfare and development.  Primarily, that is the other parent.  A failure without good reason to stand in the way of such a natural development of a relationship can have a lasting effect on the emotional wellbeing of children.  It is sometimes hard to think of a more emotionally, psychologically damaging conduct by a parent than to rob a child of the love of a capable and available parent.

16. To some degree, in my view regrettably, this has occurred over the last year or so.  The orders which the parents today agree are in the best interests of their children, if followed, will begin a process of repair to allow these children to have the right and the opportunity to form a meaningful relationship with their father and the father’s extended family, who I have no doubt support him and who love these children, and who have love to offer these children, without putting at risk the clear love that the mother has to B, C, D and E herself.  It is not a competition.

17. I have formed the view when I considered the text messages that passed between the parents up until about April/May 2016 that after the final separation occurred and the separation under one roof was being played out, where they shared the house in a sense, that these parents perhaps do have the capacity to work together for their children’s best interests.  I thought those text messages, which often reveal the uncensored views of parents, was an indication of how these parents can work together, but which they will need to learn again.

18. It is often said in cases like this that past behaviour is a good predictor of future behaviour.  The past 12 to 18 months has been traumatic for this family, for the mother and father, that particularly the children.  If that behaviour was to be repeated from today, then the risk to these children’s emotional wellbeing would be obvious.

19. I am hopeful that by making these orders today, by consent, that these parties are capable of putting the tragic and hurtful remarks each have made about each other in their material; the comments they have made, perhaps more widely through friends and family, in the past and work together for the best interests of their four children, one of whom, in B, has more than enough to deal with without having to manage his parents.

1. If they are able to do so, then these four delightful children have the chance of reaching their potential, which is the aim of every parent in Australia and of the Court when it makes the orders that it does.  So for those reasons, and on the basis that some of the evidence remains untested, and with some reservations as a review of the past recent history might suggest, the Court makes the final orders by consent sought by the parents, supported by the Independent Children’s Lawyer in the hope that the future for these children is more secure.  I will publish those reasons with such variations for grammar and poor phrasing as may be necessary as usual when one is settling ex tempore reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann delivered on 6 February 2018.

Associate: 

Date:  7 March 2018