Keeper and Keeper

[2008] FamCA 674

FAMILY COURT OF AUSTRALIA

KEEPER & KEEPER [2008] FamCA 674

FAMILY LAW – CHILDREN— with whom a child communicates —where Applicant father currently serving term of imprisonment to be released from prison imminently—currently entitled to weekend release at paternal grandparent’s home—whether one extra phone call and source of call at issue—phone calls from prison average 6 minutes duration—children finding weekly calls onerous—parties agreed that there be only two phone calls a month—one phone call to be made by father from paternal grandparent’s home whilst he is on weekend release—mother given flexibility to stipulate what half hour block of a weekend the phone call is to be made—Orders made to that effect.

APPLICANT: Mr Keeper

RESPONDENT: Ms Keeper

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: LEC 407 of 2007

DATE DELIVERED: 10 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 10 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms McGregor appeared for the Applicant Father

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Chan appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED INTIL FURTHER ORDER:

1. That the Father shall have telephone communications with the children, D born … December 1994, E born … August 1996 and K born … August 1996, on days and times to be agreed between the parties, with the Mother to ensure that the children are present at those days and times to receive the Father’s call.

2. In the event the parties are unable to agree on when calls are to be made then the Father may call the children once every four (4) weeks on Tuesdays between 5.00 pm and 6.00 pm (Queensland time) commencing 17th June 2008 and each fourth Tuesday thereafter.

3. Upon written confirmation from the Father that he has weekend release at his parents’ home, that the children be at liberty to ring him there as and when they wish on a Saturday or Sunday – such calls to be made to a land line provided by the Father and the Mother shall use her best endeavours to facilitate such calls.

4. In relation to paragraphs 2 and 3 above, once the Father is on weekend release, his telephone calls to the children may be made from his parents’ home on either a Saturday or a Sunday (as agreed between the parties) coinciding with the Father’s weekend release, once per month between 12.30 pm and 1.00 pm (Queensland time) but not after 2.00 pm on a Sunday (New South Wales time).

5. For the purpose of paragraph 4, the Father’s weekend release dates are as follows, from the weekend commencing Friday 4 July:

   §4th July, 2008

   §1st August, 2008

   §29th August, 2008

   §26th September, 2008

   §24th October, 2008

   §21st November, 2008

   §19th December, 2008

   §16th January, 2009

   §14th February, 2009.

6. On Christmas Day 2008 the Father shall be permitted to ring the children between 10.00 am and 11.00 am (Queensland time).

7. The Father is to provide the Mother and the Independent Children’s Lawyer from time to time, with information as to his work release arrangements, weekend release arrangements and also parole arrangements including written confirmation from Queensland Corrective Services and NSW Corrective Services of his parole arrangements and of their agreement for the Father to serve his parole in Queensland.

8. An updated Family Report shall be obtained by the Independent Children’s Lawyer, following the Father’s release from jail.

9. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION: 

The provisions for letter writing between the Father and the children as set out in previous Orders will continue to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC407 of 2007

MR KEEPER

Applicant

And

MS KEEPER

Respondent

REASONS FOR JUDGMENT

1. The parties are the natural parents of three children: a boy D born in December 1994.  He is currently 13 and a half; and twin girls, E and K who are aged 11, they will be 12 in August.

2. The father is currently serving a term of imprisonment, due for release in about March of next year.  He is in gaol in Sydney.  He is currently entitled to some form of weekend release which allows him to visit his parents one weekend a month from 4.00 pm Friday until 6.00 pm Sunday.  The parents, I gather, are about one and a half hour’s drive south of Sydney.  It is a matter of conjecture what time he would arrive there on a Friday evening, depending on Sydney traffic but he says that he would have to leave his parents' home by 2.00 pm Sunday so he is certainly allowing for four hours for the return trip.

3. The issue I am asked to determine is a relatively minor one.  Whether there should be one extra phone call and the source of that phone call.  The parties are in agreement that there only be two phone calls a month.  There are currently four.  It is agreed that it will be two but should the two be made from prison or should one be made from prison and the other from the grandparents' residence.

4. There is a report from Ms F which has been commissioned by the Independent Children's Lawyer who is engaged in this matter.  I have been referred to her report from paragraph 4.4.5 onwards.  The report is annexed to an affidavit of Ms F sworn on 24 February this year.

5. There is currently an order by Jarrett FM made in late November last year which provides that the father have telephone communication with the children each Tuesday between 4.30 pm and 5.00 pm and that the mother provide the children with all letters sent to them by the father.  I am informed and it does not appear to be contradicted that the father has written some letters to the children.  He writes about once every six or eight weeks and the letters normally consist of one page of large handwriting with the letters being of a repetitive nature. 

6. It is reported by Ms F, the father says he is allowed ten minute phone calls.  Now whether he has changed prisons, I am not sure but it appears that the phone calls, for some reason, have been reduced to six minutes.  The father says he generally talks to the three children during this period, that E did not want to talk to him on the first occasion and K did not want to talk to him on two occasions.  The more likely version, I would think, is that the father rarely gets to talk to the girls.  He is more interested in the boy, D.  The boy is older and has the burden of responsibility as the oldest child.  The mother has attached a schedule of phone calls, the dates of the calls and which of the children communicated.  It would seem that there has been no communication post-5 February this year with either of the girls.

7. The longest of the calls, if the father claims of nine minutes is correct, there have been two calls only of nine minutes' duration.  The rest are averaging just under six minutes.  That may accord with the fact that the phone calls are only of six minutes' duration in more recent times. 

8. I was referred to an affidavit by the respondent mother.  I have read that affidavit.  I have read the affidavit by the applicant father.  The submissions on behalf of the father include that if he is allowed to speak from the grandparents' place, there is no time limit on the calls.  There is no pressure.  There is more privacy and a greater degree of flexibility.  The respondent says whilst the phone calls can be made on a Tuesday or even a Wednesday from prison, the children have, at their age, many activities on weekends and that certainly may be true.  She said so far as the submission that to phone from the paternal grandparents' place will allow the grandparents to speak to the children, she said they rarely spoke to the children even before the Father was incarcerated. 

9. The Independent Children's Lawyer tellingly notes that whilst the father is seemingly pressing to develop a relationship with his children in anticipation of seeing more of them when he is released from prison, his current actions in taking the mother to Court could well be counter productive and the children may well become resentful if they feel that they have got to talk to their father as a result of Court action.

10. It may well be that the children could feel great sympathy for a parent who is in prison.  It may be they feel embarrassment or anger, a whole range of emotions.

11. At 7.8 of her report, Ms F notes:

    “At this stage, the children are finding the weekly calls somewhat onerous.  The girls do not have enough to speak with their father about and [D] is concerned that the calls will clash with other activities, perhaps, involving his mates.  If weekly telephone calls were to continue, there is a risk that the children will become resentful about the calls and they will then, in turn, become more withdrawn during the conversations.  I recommend that the calls be reduced to once a fortnight.”

    That seems not an issue.  It is common ground the calls would be once a fortnight.

12. In the circumstances, I am minded to accede to the father's request which will give him some degree of flexibility.  I appreciate the difficulties the mother is under:  she has had open heart surgery; she has three young children to look after; the embarrassment and the stigma of the father of her children being in prison and trying to get the children to deal with that in the best way she can.  There is a certain irony in the fact that the father embezzles $500,000 from charities and gets Legal Aid and the mother is not legally represented.

    RECORDED  :  NOT TRANSCRIBED

13. I take into account the overall number of phone calls, there is going to be about a dozen in the overall scheme of things.  It is only nine months until he is released and we are talking about one phone call a month.  I will limit the phone calls and what I will do is give the mother the flexibility to stipulate in what half hour block of a weekend the phone call is to be made.

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  10 June 2008