J and B

[2010] FamCA 1143

FAMILY COURT OF AUSTRALIA

J & B [2010] FamCA 1143

FAMILY LAW – CHILDREN – With whom children live

APPLICANT: Mr J

RESPONDENT: Ms B

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 9299 of 2010

DATE DELIVERED: 14 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 14 October 2010

REPRESENTATION

THE APPLICANT: Appeared in person

THE RESPONDENT: Appeared in person

Orders

1. The children WJ and WB both born … June 1998 be returned to the care of the Father forthwith.

2. The said children be brought to the Child Dispute Services, Level 3, Commonwealth Law Courts, Cnr North Quay and Tank Streets, Brisbane by no later than 3:00 pm today for the purposes of handover to the Father.

3. Should the children fail to be presented at the Family Court of Australia pursuant to Order (2) herein, a Warrant will be issued to have the children brought to the Court between 8:45 am and 4:30 pm from Monday to Friday.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:    BRC 9299 of 2010

MR J

Applicant

And

MS B

Respondent

REASONS FOR JUDGMENT

1. This is an exceptionally difficult case.  As I’ve already indicated, it has taken up the Court’s time for a considerable period.  It has been before four judges, I think, of this Court, excluding the Full Court; they being Jerrard, May, Laurie JJ and myself.  As far as I’m concerned some orders were made in the original part of this case in relation to findings which were made by judges who are no longer on the Court, subsequent judges hearing the matter being bound by such decisions or otherwise.  Eventually it came before me and for the period from 14 to 18 January 2008 to 4 to 5 February 2008 it was before me.

2. I gave my decision on 14 February 2008.  It was a most difficult case and I have referred to my reasons for judgment in order to refresh my memory as to the circumstances surrounding it.  The children, twins, on the material before me, who are now aged 12 years and about four or five months have refused to return to their father, who resides in northern Queensland and as a result thereof the father brought this matter on as a matter of urgency in an endeavour to have the children returned to him in accordance with the order of myself.  I removed the children from the mother, in whose possession they had been for a considerable time and if necessary – this was back in 2008, and if necessary I refer to and incorporate in these my brief reasons my reasons for judgment of 14 February 2008.  May I say in passing, to me the mother does not have a good particularly track record in relation to endeavouring to alienate the affections of the children from the father and I refer to and incorporate herein the views of Ms Bobir, Dr Frank Varghese and Mrs Denise Britton, for which I relied upon in my reasons for judgment.

3. We have heard nothing about what has happened except for the two years since the children were in the possession of the father, save that according to statements made they have enjoyed contact with their mother for the periods ordered in my orders, and have, in fact, had some extra period, particularly in relation to the death of their grandfather in or about the month of May of this year, which appears to have affected them badly.  The children ran away when they were supposed to return to their father on 3 October.  They were subsequently found and since that time they have remained in the possession of their mother.  Because this is a notoriously difficult case – not the only one that’s before me – and because, in fact, time is so limited – we not having sufficient judges to do anything that should be done, I consider, properly – I have found myself in the invidious position of having to call upon the family consultants in this Court in an endeavour to put before me some disinterested expert witness.

4. We are indeed – at least I am indeed fortunate in having such a dedicated band of youngish people in the family consultant area who put the welfare of children first, perhaps not like most parents who come to this Court in vicious fights, who don’t.  Ms Matthews has given evidence, after an order was made by myself, wherein she interviewed the boys only between 10 past 2 and 3.40, I think it was, yesterday afternoon.  She refreshingly indicated that she did not wish to burden herself or come to any pre-conceived conclusions by reading material before the Court.  She did, however, look at one document, which I think was a letter attached to the affidavit of the applicant father, by a Mr FY, who was the principal of a state primary school, if my memory serves me correctly, in northern Queensland, at which the boys attended.

5. I commend her for that, and she put before me, and I have ordered a transcript of her evidence and I will annex that to my short reasons, because I think it’s essential.  She put before me the following matters, and I generalise:  (1) that the children wanted to tell her as much as possible as quickly as possible.  They talked over each other and they wished to blurt out everything that they could against the father.  It was all negatives, as she pointed out.  And the only positives that she was able to ascertain – I once again refer to the transcript – was that when the father had been drinking to excess he let them do things which they weren’t allowed to do beforehand.  That he did drive whilst under the influence of liquor and as I inferred from her evidence, which I think she inferred from them, that he was charged with drink drinking.  I have been informed from the bar table that this is not correct.  That he was picked up but that he had too many children in the front seat where he was driving a comparatively short distance.

6. There was nothing good said by the children about the father.  That concerned me.  She said that the children had nothing but good to say about their mother, what wonderful times they had, that if they came to live with her she would be able to move out of the house in which she is residing and move to a bigger house in the Brisbane area, where they would be close to their cousins, where they would be able to go to the local State High School, which they want to do very much.  They disliked the school in northern Queensland.  That what was said by the principal, Mr FY, is not correct, that he just doesn’t realise what is going on, that the father puts on a big face and pretends to be something which he really isn’t.

7. On the material before me, these children are in a position where they dislike their father, as they say.  The father denies this.  He says that once they’re back in northern Queensland that they’re entirely different children.  In 2008 and for periods before that the Court was concerned by the evidence of Dr Varghese, in particular, that the mother was endeavouring to alienate the affections.  Jerrard J, back in 2002, he, at that time – I have referred to what I have reported of his at page 40, paragraph 138 of my reasons for judgment – was pressed enough at that stage to consider there was a ghastly choice.  I, myself, was concerned.  Dr Varghese was concerned about alienation.  Ms Britton was concerned about alienation.  Ms Bobir, I think, was also concerned about alienation on the part of the mother.

8. As the evidence unwound from Ms Matthews, initially which appeared to be evidence very strongly in favour of the children exhibiting that degree of emotional distress that I would have to, sort of, suspend, in effect, the orders for residence and contact to enable them to remain with their mother, became less and less persuasive insofar as the mother is concerned.  Ms Matthews was clearly of the view, in my opinion, that these children were having carrots offered to them.  They love their mother very dearly.  There is no suggestion to the contrary to that extent.  They have an easier time down here.  It might be, as some people have said, “They are spoilt rotten.”  As other people would say, “The grass on the other side of the fence is greener,” and as I always say, “I refuse to take much notice of photographs of children smiling because in all probability they just finished an ice cream” or were being offered one.

9. To me it appears that the mother – and this is only on an interim basis - it cannot be suggested I’m finding this as a fact, and any question of estoppel might arise – there is sufficient concern of Ms Matthews to indicate that what should happen here is the children should be in a household where there is at least a chance of a relationship being maintained with the other party.  I’m satisfied, not only because of the evidence in 2008 and prior to that, but also having heard Ms Matthews’ evidence, that that is a concern.  I’m not saying that it’s happening, but it is sufficient a concern to explain the complaints of the children.

10. I have no hesitation in ordering:

    ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate:     

Date:              17 December 2010