Jenner and Jenner-Ferrer

[2008] FamCA 67

FAMILY COURT OF AUSTRALIA

JENNER & JENNER-FERRER [2008] FamCA 67

FAMILY LAW – CHILDREN – live with – spend time with

APPLICANT: MR JENNER

RESPONDENT: MS JENNER-FERRER

FILE NUMBER: BRC 4628 of 2007

DATE DELIVERED: 14 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: BELL J

HEARING DATE: 10 & 11 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jenner appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr M D Alexander

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT

CHILDREN'S LAWYER

Legal Aid Queensland

Orders

UPON THE UNDERTAKING OF THE PARTIES NOT TO MAKE APPLICATION TO THE COURT WITHOUT LEAVE OF A JUDGE

IT IS ORDERED THAT

1. The children … born … May 1993 and … born … July 1998 (hereafter referred to as “the children’) live with the Father.

2. Either party be responsible for the day-to-day care, welfare and development of the children when they are in their respective care.

3. The children spend time with their Mother at all such reasonable times as may be agreed between the parties, with such time to include the following:

   (a)The last weekend of each month from after school Friday to before school Monday during school term save if either of the boys having sporting meets and/or camps for that weekend then upon the father giving two weeks’ notice the weekend of spending time with the mother will become the following weekend;

   (b)All of the Easter Queensland gazetted school holidays;

   (c)Half of the Queensland gazetted June/July holiday period, with the second half in 2008 and each even-numbered year thereafter and the first half in 2009 and each odd-numbered year thereafter;

   (d)All of the September Queensland gazetted school holiday period;

   (e)Second half of the Queensland Christmas gazetted school holiday period in 2008;

   (f)Thereafter, the children will spend all other Queensland Christmas gazetted school holidays with the Mother except for the last two weeks in 2009 and each odd-numbered year thereafter and the first two weeks in 2010 and each even-numbered year thereafter;

   (g)That during all Queensland gazetted school holiday periods, the weekend time spent with the Mother pursuant to these orders be suspended from the first day of each such holiday period and resume on the first weekend after the recommencement of school in 2008 and each alternate year thereafter and in the second weekend after the recommencement of school in 2009 and each alternate year thereafter.

4. The Father hereby agrees not to relocate, without the prior written consent of the Mother or further Court order, out of the catchment area for B State School, in order that the children have continuity of education and to comply with these orders in terms of time spent with their Mother.

5. Unless otherwise specified in these orders, all changeovers for the purpose of complying with these orders are to take place at D Service Station.

6. The children be at liberty to communicate with the Mother by telephone at any time they so request when in the care of their Father with the child(ren) to initiate the call.

7. At all times, each party will keep the other informed of their current residential address and contact telephone number and notify the other of any change to the said address or telephone number within seven (7) days of any change occurring.

8. This Order hereby authorises the children’s schools and treating medical practitioners to provide to the Mother all such information as she may request from time to time in relation to the children, provided that the provision of such information will be at the cost of the Mother.

9. That each party will keep the other informed as to any illnesses suffered by the children or medical treatment received by the children whilst the children are in that party’s care including the contact details of any treating medical practitioners or hospital attended by the children and details of any treatment received by the children.

10. Neither party will denigrate the other, or their respective partners, to the children or in the presence of the children and each party will use their best endeavours to ensure that other people do the same.

11. Neither party will physically discipline either child.

12. Notwithstanding order 6 above, the children will communicate with the Mother or Father by way of telephone whilst in the care of the other parent as follows:

    (a)Each Sunday between 7 – 7.30 pm;

    (b)Each Wednesday between 7 – 7.30 pm.

13. The parent with whom the children are not residing will initiate the call in accordance with order 12 above.

14. Both parties are restrained from talking about these proceedings in the presence of the children.

15. The mother have liberty to apply without the necessity of seeking leave pursuant to her undertaking should she relocate to Brisbane.

16. All outstanding applications be dismissed and removed from the Pending Cases List.

17. 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Jenner & Jenner-Ferrer.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4628  of 2007

MR JENNER

Applicant

And

MS JENNER-FERRER

Respondent

REASONS FOR JUDGMENT

1. On 31 August 2006, Mullane J, at the Family Court, Newcastle, made certain orders in relation to the parenting of two children: an older son born in May 1993; and a younger son born in July 1998.  He made such orders as a result of applications made to this Court for parenting orders in relation to those children.

2. Mullane J heard the matter in August, pronounced his order, I think, on that day, 31 August 2006 and published his reasons on 5 September 2006.  His reasons are exhibited to the affidavit of Ms Gagliardi of 7 January 2008.  May I say, in passing, that this confirms my view of Mullane J as a Judge who has an inordinate capacity for work.  He has done a remarkable judgment of extreme length.  It not only shows his dedication to the Court, but his also dedication to the parties who are here before him in order that he is able to explain to them fully his reasons for the decision he has made.  Naturally, of course, Mullane J, who is personally known to me, is a person of the utmost ability and I look at his judgment with a great deal of awe, and also respect.  Regrettably, it may be seen to the parties that my judgment is much a lesser being in that it will not be of anywhere near the length of Mullane J's.

3. As a result of his order the children, who have been living with the father for a considerable period - and I will briefly touch upon the marriage history at a later stage - were placed in the possession of the mother, and they remained in her possession from August, I think it was, until April of 2007 when, as a result of something which the father saw on the back of the eldest boy, he decided that the children should remain with him, they having come to him to spend time with him by way of Easter holidays.  And he decided to retain the children.  As a result thereof, the children have remained with him since, notwithstanding the fact that the mother has sought to recover the children by way of a recovery order, which was issued and which was not enforced - and I in no way criticise the mother for failure to enforce it as it appears to be a little strange to me how it came about.  However, the Department of Children's Services became involved and made certain other assessments or came to certain conclusions which convinced a judicial officer of this Court that it would be unwise - I think I could go as far as saying that - for the recovery order to be enforced.  And the recovery order, I assume, is still in existence.  It has not been dealt with but has been, in effect, placed in abeyance until this matter has been determined.

4. To say briefly, the parties were originally married and as I have said, there were two children of the marriage.  They separated and have lived separately and apart since then.  The mother has re-partnered with a Mr Farrer, whom I have seen.  I will touch upon very briefly in these my reasons for judgment.

5. In Mullane J's judgment he came to certain, very strong views in relation to the father and in his many failures to comply with those requirements of the Act, which have been placed upon this Court as specified, particularly in s. 60CC - which, of course, it is suggested the Court never realised that these were in existence prior to the politicians waking up to the fact that they were, however we have always applied the matters to which they have directed our attention in the whole of 30-odd years that this Court has been in existence. 

6. I must say that considering Mullane J's judgment there are many matters that I agree with him, the father’s attitude towards not only the Court but towards his children, towards the wife, the mother of the children and, in particular, towards his own, perhaps, over-self-opinionated view of himself. 

7. This is a very difficult case.  It was a case in which, clearly, the principles enunciated in Rice v Asplund came about, because the matter was only determined in August 2006 and the application by the father for an order diametrically opposed was in April 2007 or May.

   RECORDED  :  NOT TRANSCRIBED

8. However it was initiated shortly after the older son exhibited these injuries, which are exhibited by way of photographs in this case, to the father and he, as a result he says, of putting the interests of the children, in particular the older son, first and accepting the numerous myriad of complaints made by the children concerning, in particular, Mr Farrer, he decided that it was in their best interests that they remain with him.  Orders were made, subsequently, in relation to spending time by the mother with the children.  I understand these have generally been complied with and there is evidence before me from Mr Farrer that the period that they had over Christmas this year was the best he has ever had with the kiddies.  He was a person who quite impressed me, Mr Farrer.  I think, as he said, he has had a pretty rough time with the kiddies.  They did exhibit difficult emotional problems during the time that they were with him and his present partner, the mother, from about August or September to April, particularly the older son, and the younger son to a lesser extent.  But it was particularly difficult for him, but he said it appears as though things had settled down quite a lot and that he and the kiddies enjoy their time spent together over Christmas.  They did various things such as camping and fishing and it was, as I have said, an enjoyable time for everybody.  It makes the decision that I am coming to even harder than what it originally would be.

9. From about page 62 of Mullane J's judgment and et sequor he has come to, as I said, very strong conclusions in relation to the father, notwithstanding that he was of the opinion that the older child, and the younger child to a lesser extent, had evinced strong views that they wished to remain with the father, with whom they had been for many, many years.  He found that other disentitling, if I may use that word, conduct on the part of the father pursuant to the provisions of s. 60CC, was such that he could not abide by the wishes of the children, and he placed the children with the mother.

10. Insofar as the history of this case is concerned, I can do no more than say that the history as set out in Mullane J's very long, in depth judgment I could not, in any way, disagree with and consequently I feel bound by his findings in relation to the marriage history.

11. This is not, as I have already said, an appeal from Mullane J's decision.  It is a case in which I have applied the principles of Rice v Asplund.  I have had the assistance of excellent submissions from the respondent mother's solicitor and I have come to the conclusion that the hurdle, if I may use that word, of the principle of Rice v Asplund has been overcome.  Consequently I decided, in this case, to consider the matter de novo.  I am fortunate, of course, that this is a case where s 112A applies and as a result thereof the rules of evidence are diminished, if I can put it that way, because the only evidence that was put before me in relation to this matter was matters which have taken place since the children have gone into the possession of the father and also, to a lesser extent, the attitude of the children towards Mr Farrer and the mother during that period that they were with them as a result of Mullane J's order.  Consequently, I feel as though I am somewhat circumscribed.  There are many matters to which Mullane J refers which, if the old system applied, it would be impossible for me to consider because it was not put before me by way of evidence.  I refer to - - -

    RECORDED  :  NOT TRANSCRIBED

    - - - Dr Waters. I refer to many other matters which are set out in the judgment of Mullane J, which were not put correctly before me in accordance with the old laws of evidence, but as a result of the amendment - one of the 75, I think, amendments of the Family Law Act. It appears that I can now inform myself of virtually anything which is of assistance to the Court in relation to parenting matters.

12. I was not impressed with the father.  The father gave the impression of being self-centred, as I have said, being perhaps, even egotistical considering that he was the only person who could decide what was in the best interests of the children.  He has previously and still, to a lesser extent, has demeaned the mother.  He has a dislike of Mr Farrer which, he says, is engendered by Mr Farrer’s attitude towards him.  He is a person who would do anything, I find, to get the children back to him.  But is that, in itself, disentitling conduct?  Is it of such a nature that I would not be able to comply with the evidence relating to the boys' wishes?

13. I have been greatly assisted by the two reports of Mr T in this case.  His initial report was filed 16 October 2007 and his later report was early in January this year.  I have read them and I have inwardly digested them.  The things which concern me about his report is that the older son has consistently wanted to stay with his father.  Mullane J, as I have said, was aware of this and he decided that - and the Court is not bound - he took into consideration this is a factor, quite properly so, a factor in coming to the conclusion with whom the children should reside.  But Mr T has emphasised that the boy is now 12, 15 months older, that his wish to be with his father is, if anything, hardened.  That, in itself, would almost convince me that that was sufficient for Rice v Asplund to be overcome.  In fact, I think I did so find.

14. But the other matter which initially seemed to be treated with a fair bit of disdain is that the older son has, for the greater part of his life, showed a very difficult nature.  He was difficult at school: I refer to Mr G’s report; and I refer to those reports which are exhibited to Ms M’s affidavit of 18 October 2007.  He had been a very difficult boy.  He was disruptive.  He has been suspended.  He has been attempted to be counselled.  And he is a child, I would have thought initially was a type that would not be particularly impressive in any school.  But something has happened.  It was mentioned before but - and a lot of people might think this is a comparatively small thing - he has shown interest in joining the Royal Australian Navy as a cook.  His academic record is pitiful, as far as I am concerned, and particularly in so far as cooking is concerned.  He failed it in the home economics.  He joined the Sea Cadets when he came up to the Brisbane area.  I say, in passing, the Sea Cadets are not available to him in the mother's residence in regional New South Wales, although they are available about one hour's drive away.  I understand the Army and the Air Force are available at the mother’s residence.

15. But it has impressed me tremendously that the boy seems to be able to succeed at something at which he has never succeeded before.  He has received from the Australian Naval Cadets Traineeship a certificate of promotion, see annexure "A" to the affidavit of the father filed 4 January 2008.  He is now a cadet seaman.  He received a community spirit award, see once again annexure "A".  And he has passed the fire safety training.   

    RECORDED  :  NOT TRANSCRIBED

16. He has also received a letter from his commanding officer which, once again, is headed "Traineeship Ipswich" - it is exhibit 2 - in which Mr Y, who is the commanding officer of the Traineeship Ipswich says, inter alia:

    "When he arrived as a recruit in June"

    that was June 2007 -

    "it was evident that he had some behavioural issues which he has to his credit cooperated with the staff to correct.  Since that time Cadet Seaman [Jenner] has matured and demonstrated steady improvement in the following areas: dress and bearing, self-discipline, self-confidence, citizenship and team work.  He has…enthusiastically involves himself in training and activities.  He has received acceptance from his shipmates who value him as part of a team."

    And the community spirit, to which I have referred, was the inaugural award which he won. 

17. One could not expect or hope for a better report from his commanding officer than that which this boy has received.  Something must be going on which is good for the boy.  Up until he was 12 years of age he has been pretty well - but, perhaps, that is going a little far - a disaster.  He was aggressive.  He was anti-authority.  He was disruptive.  And he was, as the CO, Mr Y, has said, suffering clear behavioural issues. 

18. He has settled down.  He has become a credit to the sea cadets.  And that credit has, of course, been made by himself by starting to show what he can be capable of.  As I said he will have to do a lot more hard work in home economics.  He got a "C" and a "D", I think, or an "E" even, if my memory serves me correctly, which is not particularly satisfactory if he wants to become a cook in the Navy.  He will have to improve on that.  But his father has indicated in evidence that the boy was disappointed in his failure in that field and, as I understand, will endeavour to do much better in future.  Notwithstanding the fact cooks used to have a bad reputation in the Navy.  They do not any more, and he will have to improve considerably if he wishes to become one. 

19. I commend his spirit and I am very pleased to see that he has made a big improvement in himself.  Some people might have thought that that is a small thing.  I don't think so.  I think that this tremendous change has been brought about, perhaps, as a result of the boy thinking he may be being listened to.  Mr T has emphasised that that on at least two occasions the child blew up and indicated that no one was listening to him and he walked out of the conference, if my memory serves me correctly.  He is to be listened to and, I think, that as he increased in his age that it is absolutely essential that he be listened to.  I do not say I should, once again, be bound by what he says, but he has to be listened to.  He is almost 15, if my memory serves me correctly - he will be 15 in May of this year.  But he is a boy who is developing and I think that his wishes should be listened to.

20. Should I accept them?  Mullane J in his decision set out numerous reasons why he could not feel as though the boy's wishes should be accepted because of what he found disentitling conduct on the part of the father.  I do not know if the father has improved very much at all.  But something is happening, as I said, something is happening for the good.  And I would be loathe to, in any way, interfere with the improvement that that boy has made in the last what, eight to 10 months at the most, which appears from a totally independent person - a person who really has no axe to grind; a person who is not known to either of the parties, as far as I am aware.  The father may have met him.  There is no evidence that he looks upon him as a close friend who would, in effect, perjure himself for the sake advancing the welfare of the Sea Cadets.

1. The younger son is a different kettle of fish.  The younger son has a close relationship with his mother and I feel, underneath it all, so does the older son.  And the younger son is somewhat ambivalent.  All he wants to do, as I read and I think Mr T agreed with me here, is that he wants to follow his brother.  He is very close to his brother.  All parties agree that they have a close, warm and loving relationship and such relationship, albeit faintly put up by the mother, should in no way be interfered with by their being separated.

2. The mother has put forward very good cogent reasons why the children should remain with her, or should go to live with her in accordance with the order of Mullane J, but I cannot once get over that point that his boy is improving.  Am I to take that small step for him away from him by sending him back to NSW where the sea cadets will not be, unless he goes an hour's drive away and I would have thought that that would be rather impossible to continue permanently.  I was impressed with the mother.  I think the mother is only doing the best she possibly can - what she thinks she can do for her children.  And I do not, in any way, criticise her.

3. As I said I was somewhat impressed with Mr Farrer.  He has had enough, and I can fully understand that and the results of those things.  I have called upon the parties to undertake not to make an application to this Court without the leave of a Court or a Judge and both parties have, I understand, offered such undertaking and I will accept it.  They cannot come back to Court without seeing me or if I am not available, some other Judge.

4. The boys are interested in sport, particularly the younger son who is very good, if my memory serves me correctly, at softball.  And that does concern me to a certain extent, as was quite properly pointed out to me by counsel for the Independent Children's Lawyer, there could be some difficulty with contact - if I can use that word - because their sporting activities on the weekends could be interfered with.  I have endeavoured to modify the draft minute, which has been put before me by the Independent Children's Lawyer, to take that into consideration.

5. It is clear, I am sure, to the parties who are here at present, notwithstanding my concerns about the father not, I feel, putting the interests of his children first rather than himself, that something is going good, particularly for the older boy.  It must be encouraged.  He must be allowed to further his career in the sea cadets.  He must be allowed to further the opportunity of his getting some feeling of self-worth.  In those circumstances, I would not order that the children return to the mother.  

   ORDER DELIVERED

6. As I say, this is somewhat regrettable, and I would suggest that the father takes a good look at himself and starts placing the children first.  The children deserve a relationship with their mother.  And if it happens at any stage in the future that I am convinced that he is in any way attempting to interfere with the mother building up a close, warm and loving relationship with her children, it will come back before me and it could be disentitling conduct, notwithstanding the sea cadets.

7. The draft minute has been put before me and I will be handing it down.

   RECORDED  :  NOT TRANSCRIBED

   ORDERS DELIVERED

   RECORDED  :  NOT TRANSCRIBED

8. In this matter I had overlooked to mention that I have taken into consideration s. 60 CC and I emphasise my view of the father.  However, I feel that the matter which I should take into consideration and it is terribly important, is the wishes of the children and, in particular, the older son.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: