Martel and Martel
[2008] FMCAfam 240
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTEL & MARTEL | [2008] FMCAfam 240 |
| FAMILY LAW — Parenting orders — proposed relocation — child’s refusal to spend time with mother interstate. |
| Family Law Act 1975 ss.60B, 60CA, 60CC(1), 60CC(4), 60CC(4A), 61DA, 65DAA |
| AMS v AIF (1999 )199 CLR 160; FLC 92-852 A & A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751 KB & TC [2005] FamCA 458 U v U [2002] HCA 36; (2002) 211 CLR 238 Sampson & Hartnett (2007) FLC 93-350; [2007] FamCA 1365 Taylor & Barker (2007) 37 Fam LR 461; (2007) FLC 93-345; [2007] FamCA 1246 |
| Applicant: | MR MARTEL |
| Respondent: | MS MARTEL |
| File Number: | DGM 3540 of 2006 |
| Judgment of: | Riley FM |
| Hearing dates: | 20, 21 and 22 February 2008 |
| Date of Last Submission: | 28 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taghdir |
| Solicitors for the Applicant: | Chris Woods and Associates |
| Counsel for the Respondent: | Mr James |
| Solicitors for the Respondent: | Schultz Toomey O’Brien Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr O’Connell |
| Solicitors for the Independent Children’s Lawyer | McCormack & Co Solicitors |
ORDERS
There be no parenting orders regarding D born in 1990 (“D”).
The mother and father have equal shared parental responsibility for S born in 1992 (“S”) and J born in 1998 (“J”).
S live with her mother.
S spend time and communicate with her father at times to be agreed between her parents and subject to S’s wishes.
J live with his father in Melbourne.
J spend with his mother:
(a)
the second half of each school term holiday commencing at
4.00 pmon the second Saturday of the school holidays and concluding at 4.00 pm on the third Saturday of the school holidays.
(b)the first half of the summer school holidays commencing this year at 4.00 pm on the first Saturday of the summer school holidays and concluding at 4.00 pm on the third Saturday of the summer school holidays and each alternate year thereafter at the same times;
(c)the second half of the summer school holidays commencing next year at 4.00 pm on the third Saturday of the summer school holidays and concluding at 4.00 pm on the last Saturday of the summer school holidays and each alternate year thereafter at the same times;
(d)at least 48 hours each time the mother comes to Melbourne other than during school holidays, provided that she gives the father seven days written notice of her intention to do so; and
(e)at least 48 hours each time the father and J go to Queensland, and the father shall give the mother seven days written notice of his intention to do so.
J spend time with his mother at the maternal grandmother’s home in Melbourne until the therapeutic counsellor referred to in order 18 hereof states in writing that J is ready and willing to spend time with the mother in Queensland.
The mother not allow Mr P to be present when J spends time with his mother before the 2008 term 3 school holidays.
If possible, S be present when J spends time with his mother until after the 2008 term 2 school holidays.
Changeover when J spends time with his mother at the maternal grandmother’s house is to take place by the father delivering J to the mother at the shopping centre nearest to the maternal grandmother’s house at the commencement of J’s time with his mother and the mother delivering J to the shopping centre nearest to the father’s house at the conclusion of that time.
Changeover when J spends time with his mother in Queensland is to be effected by J travelling by air to and from Mxxx airport.
J may travel to and from Queensland unaccompanied.
The mother is to arrange and pay for J’s first two return flights to Queensland, the father is to pay for the next four, and the mother and father are to pay for J’s return flights alternately thereafter.
J communicate with his mother by telephone on the father’s landline between 6.30 pm and 7.00 pm on each Tuesday and Thursday when J is not with his mother commencing after the therapeutic counsellor referred to in order 18 hereof states in writing that J is ready and willing to communicate with his mother by telephone.
The father give the mother within seven days his landline telephone number.
The father be restrained from taping, placing on speakerphone, overhearing, interfering with or allowing anyone else to tape, place on speakerphone, overhear or interfere with any telephone conversation between J and his mother.
Mr P be restrained from telephoning the father’s landline.
As soon as practicable the mother, the father and J attend upon Mr V, or another psychologist in Melbourne nominated by the independent children’s lawyer (“the therapeutic counsellor”), at such times as are directed by the independent children’s lawyer, after consultation with the psychologist, the mother, the father and J, for therapeutic counselling concerning J's relationship with his mother and his reluctance to travel to Queensland.
The mother and the father shall bear equally the costs of the therapeutic counselling.
The independent children’s lawyer shall forthwith forward to the therapeutic counsellor a copy of the family reports prepared by Mr G dated 24 July 2007 and 31 January 2008 and a copy of these reasons for decision.
The mother and the father follow all lawful directions of the independent children’s lawyer and the therapeutic counsellor in relation to the therapeutic counselling.
The therapeutic counsellor shall be at liberty to discuss with Mr G, J’s school counsellor, Ms Y, and any member of J’s nuclear or extended family any matters relating to J’s welfare.
The mother and the father be at liberty to arrange for J to spend other or additional times with his mother or communicate with his mother at other or additional times by agreement.
The independent children’s lawyer be discharged on 19 September 2008.
The parties and the independent children’s lawyer have liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Martel & Martel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGM 3540 of 2006
| MR MARTEL |
Applicant
And
| MS MARTEL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of J who was born in 1998. He is now nine years old. His parents were married in 1989 and separated on 1 July 2005. J was six years old at the time of separation. During the marriage, J’s mother, Ms Martel, was his primary carer and his father, Mr Martel, was the family’s primary breadwinner. During the marriage, the family lived in the Dandenong area of Melbourne. After separation, in November 2006, Ms Martel relocated to Txxx, about eight kilometres inland from the Sunshine Coast, where she continues to live with her new partner, Mr P.
Ms Martel and Mr Martel have two other children, D, who was born in 1990 and who is now 17 years old, and S, who was born in 1992 and who is now 16 years old. J and D presently live with Mr Martel in the Dandenong area of Melbourne. S presently lives with Ms Martel,
Mr P, and Mr P’s two sons, A and L in Txxx.
In an amended application filed on 11 February 2008, Mr Martel sought orders that both S and J live with him. However, at the commencement of the hearing on 20 February 2008, Mr Martel through his counsel advised the court that he did not wish to pursue any application in relation to S because he had doubts about his paternity of her. Ms Martel did not seek orders that D live with her. Accordingly, the case only concerns parenting arrangements for J.
The independent children’s lawyer essentially seeks orders that:
(a)J lives with Mr Martel in the Dandenong area of Melbourne;
(b)if Ms Martel returns temporarily to Melbourne for at least three months commencing within four weeks of the date of the orders, Ms Martel, Mr Martel and J attend upon Mr V, or such other psychologist as is agreed, for therapeutic counselling regarding J's relationship with his mother and his alleged reluctance to spend any time in Queensland, such counselling to continue for the whole of Ms Martel's temporary return to Melbourne;
(c)if Ms Martel does not return to Melbourne for a period of at least three months, Ms Martel, Mr Martel and J undertake therapeutic counselling in the second half of the 2008 term 1 and term 2 school holidays when Ms Martel is to be in Melbourne;
(d)any time spent by J with Ms Martel takes place in Melbourne until such time as the therapeutic counsellor is of the view that J is ready and willing to travel to Queensland to spend time with Ms Martel; and
(e)commencing as directed by the therapeutic counsellor, J spend half of all school holidays with Ms Martel.
Mr Martel essentially seeks orders that J:
(a)continues to live with him in the Dandenong area;
(b)spends time with Ms Martel as proposed by the independent children’s lawyer; and
(c)undertakes therapeutic counselling as proposed by the independent children’s lawyer.
Ms Martel essentially seeks orders that:
(a)Ms Martel and Mr Martel have equal shared parental responsibility for J;
(b)J lives with her and Mr P on the Sunshine Coast;
(c)J spends half of all school holidays with Mr Martel;
(d)in addition, if Mr Martel travels to the Sunshine Coast, J spends at least 48 hours with Mr Martel, subject to Ms Martel being given seven days notice;
(e)if Ms Martel and J travel to Melbourne, J spends at least 48 hours with Mr Martel, subject to Ms Martel giving seven days notice;
(f)J communicates with his father by telephone each Tuesday and Thursday between 6.30 pm and 7.00 pm; and
(g)J attends upon his school counsellor, Ms Y, to assist with his transition to living with Ms Martel in Queensland.
In the alternative, if the court determines that J is to live with Mr Martel, Ms Martel essentially seeks orders that:
(a)Ms Martel and Mr Martel have equal shared parental responsibility for J;
(b)J lives with Mr Martel;
(c)J spends the second half of the term 2008 1 and term 2 school holidays with Ms Martel at the home of the maternal grandmother in Victoria;
(d)subsequently, J spends half of all school holidays with Ms Martel (presumably, in Queensland);
(e)in addition, if Ms Martel travels to Melbourne, J spends at least 48 hours with Ms Martel, subject to Mr Martel being given seven days notice;
(f)if Mr Martel and J travel to the Sunshine Coast, J spends at least 48 hours with Ms Martel, subject to Ms Martel being given seven days notice of Mr Martel’s intention to go to Queensland;
(g)J communicates with his mother by telephone each Tuesday and Thursday between 6.30 pm and 7.00 pm; and
(h)the parties engage a therapeutic counsellor to assist Ms Martel and J with their relationship.
Mr P’s pre-marriage relationship with Ms Martel
Mr Martel and Ms Martel’s new partner, Mr P, are brothers. Before marrying Mr Martel, Ms Martel went out with both Mr Martel and Mr P. Mr P knew at the time that Ms Martel was going out with Mr Martel, but Mr Martel did not know that Ms Martel had gone out with Mr P until many years later. After one of their periods of separation, Ms Martel and Mr Martel each told the other about their extramarital affairs. At that time, Ms Martel also told Mr Martel that she had gone out with Mr P before she married Mr Martel. Ms Martel said and I accept that Mr Martel did not show much of a reaction to her disclosure. However, Mr Martel now concedes that he has found Ms Martel’s relationship with Mr P difficult to cope with.
Mr P’s marriage and children
After going out with Ms Martel, Mr P married Ms Martel's sister, Ms K. Mr P and Ms K had two sons, A and L. Ms K had two sons from a previous relationship, N and B. Mr P and Ms K separated in about 1995. N and B continued to live with Ms K. A and L have lived with Mr P for almost all of the time since Mr P and Ms K separated. A is now 18 and L is now 15. However, L lived with Ms K from about May 2007 to about January 2008. This is discussed further below.
Mr P’s estrangement from his family
Mr Martel and Mr P have six other siblings, including Ms R who is seriously disabled. Mr P is estranged from all of his siblings. He moved to Queensland in about 1995, after separating from Ms K. Mr P maintained contact with his mother until she died in 2004, but has had almost no contact with his siblings since 1995. Mr Martel and Mr P have different versions of the cause of the estrangement.
Mr Martel said that the estrangement was caused by Mr P being violent, threatening and intimidating towards Mr Martel, Ms Martel and other family members at the time that Mr P and Ms K separated in about 1995. Additionally, Mr Martel said that when his parents were still living, there was a family meeting at which all of the siblings and their parents agreed that the parents’ estates should be inherited by Ms R alone. Mr Martel said that after his mother died in 2004
(Mr Martel’s father having died some years earlier), Mr P was very upset about Ms R inheriting the whole estate. Mr Martel said that at that time again Mr P behaved in a violent, threatening and intimidating manner towards his siblings.
Mr P said that the cause of the estrangement was that Mr Martel had almost caused his mother to lose her house. Mr P said that his mother had guaranteed a loan taken out by Mr Martel for a truck. Mr Martel was unable to meet the loan repayments and the finance company repossessed the truck. However, before the repossession, according to Mr P, Mr Martel had stripped the truck of anything of value that could be removed. Mr P said that the finance company was about to make up its shortfall by selling his mother’s house when the various family members all contributed to save it. In my view, there is probably some truth in both versions of the cause of the estrangement.
Ms Martel’s application for an intervention order
In any event, on 29 June 1995, Ms Martel sought and obtained an interim intervention order against Mr P. The complaint alleges that Mr P was verbally abusive, intimidating and threatening towards Ms Martel, particularly on 20 June 1995 when the verbal abuse and threats took place in front of Ms Martel's two children, D and S. J had not been born at that stage.
Ms Martel wrote some diary notes for herself at around the time she obtained the intervention order in 1995. She agreed in oral evidence that the notes were not an exaggeration. I find that Ms Martel's diary notes are an accurate statement of the events they describe.
In the entry for 18 May, Ms Martel's notes indicated that she had accompanied Ms K to court when Ms K had successfully obtained an intervention order against Mr P. Ms Martel said that she and Ms K were in Ms K’s car when Mr P came to Ms Martel's side of the car and began to threaten her. Ms Martel wrote, “he looked so wild I was left shaken”. Ms Martel said in cross examination that she did not consider Mr P's threat to be against her personally.
In the entry for 10 June, Ms Martel wrote that Mr P came to her house and yelled at the front door for about 10 minutes and pulled at the security door. She said that D and S could hear all of this and they got very scared. Ms Martel noted that D told her that he did not like Mr P.
In the entry for 13 June, Ms Martel noted that Mr P had left a letter for Mr Martel in the front door. In the letter, Mr P made threats against Mr Martel and called Ms Martel a “slut of a wife”. In cross examination, Ms Martel said that she hardly even remembered Mr P having said that.
In the entry for 20 June, Ms Martel said that Mr P came to the home and yelled for about 10 minutes. Ms Martel said that she took the children to the bedroom. She said that Mr P would not go away so Mr Martel went outside and smashed Mr P’s windows, presumably meaning his car windows. She said the police arrived and Mr P continued to yell and threaten and said, “this isn't the end of this, I promise you.” In cross examination, Ms Martel maintained that D and S did not see any of this incident and maintained that she was not frightened. However, she later conceded that she might have been a little bit frightened.
Before being shown the interim intervention order that she obtained in 1995, Ms Martel was asked in cross-examination if Mr P had a violent past. She said that he had not been violent towards her or her children. Ms Martel was then shown the complaint and summons for the intervention order, the interim intervention order and her own handwritten notes. She was asked if Mr P had been violent towards her. She initially said that she did not believe he had been, and, when questioned further, said “Not physically, but verbally”. She was asked again whether Mr P had been violent towards her or her children and she said no.
At the hearing before this court, Mr P said that Ms Martel did not appear at the final hearing for the intervention order and so no order was made on a final basis. In the absence of evidence to the contrary, I accept Mr P's evidence on this matter. However, I also accept that Mr P behaved as described in Ms Martel’s notes. Ms Martel said she believed Mr P had changed. She was unable to explain how she could have formed this view before she commenced a relationship with him.
Mr P’s alleged assault on B and his move to Queensland
Mr P also said in oral evidence before this court that he had hit B, the older of his two step sons, when B was eight or nine years old. Mr P said:
I hit him with four fingers of my hand. His mother subsequently had me charged with assault. I appeared in the Magistrates' Court at Dandenong. I was charged with assault. I was convicted. It was appealed to the County Court and the conviction was quashed.
Mr P said that he had been ordered to do 150 hours community service by the Magistrates’ Court but he was given no sentence in the County Court and let go. One way or another, Mr P has admitted to hitting a child of eight or nine years old. He denied having any convictions for the use of force or violence. In the absence of any documentary evidence to the contrary, I accept Mr P’s denial.
Not long after these events in 1995, Mr P moved to the Sunshine Coast with his two sons, A and L. As mentioned above, Mr P kept in touch with his mother, but had no contact with his siblings until shortly after his mother's death in about December 2004.
The paternal grandmother’s death in 2004
Mr P and Mr Martel's sister, Ms S, gave evidence that in December 2004, Mr P attempted to claim ownership of their mother's house and belongings. Ms S said that it was known and agreed amongst the siblings that when their mother died, Ms R would inherit the whole estate and live with Ms S who would be her carer. Ms S said that Mr P was advised of his mother's death on the day she died and was asked for assurances that he would not behave violently or aggressively towards anyone attending the funeral including Mr Martel, Ms Martel, Ms K and her two sons, N and B. Ms S said that Mr P claimed that he should inherit their mother's house and various belongings such as their father's war medals. Ms S said that subsequently Mr P contacted her two or three times and threatened to beat her to death, burn her house down and kill her. In affidavit evidence, Mr P denied making these threats. Ms S agreed in cross examination that the threats were not carried out. However, the allegation that Mr P threatened Ms S in 2004 was not challenged. I accept her evidence on this matter.
The immediate post-separation period in 2005
As noted above, Ms Martel and Mr Martel separated on 1 July 2005. Arrangements for the children were initially fairly amicable. They lived with Ms Martel and usually spent alternate weekends with Mr Martel. To enable Mr Martel to spend time with the children, Mr Martel once or twice slept at Ms Martel's place. In September 2005, Mr Martel moved to Sxxx for his work. Sometimes he would spend weekends with the children at the home of his sister Ms J. Sometimes he would take the children to Sxxx to spend time with them there. Mr Martel said and I accept that the children enjoyed the two hour trip each way. D lived with his father in Sxxx for 11 weeks over the school holidays between November 2005 and January 2006. D did casual work for the company that employed Mr Martel.
The commencement of the relationship with Mr P
On 20 October 2005, Mr P’s son, L, rang Ms Martel to wish her a happy birthday. She also spoke to Mr P on that occasion. Either before or during that conversation, Mr P learned that Ms Martel and Mr Martel had separated. Subsequently, Ms Martel went to Queensland on a few weekends to be with Mr P. He had been separated from Ms K at that time for about 10 years.
Mr Martel made a number of attempts to reconcile with Ms Martel. They remained friendly towards each other. On 16 February 2006, Ms Martel told Mr Martel that she was in a relationship with Mr P. Mr Martel and Ms Martel continued to speak civilly to each other until 20 February 2006. On 19 February 2006, Ms Martel told Mr Martel that she wanted to take S and J to Queensland for a week to see if they liked it. Mr Martel expressed his concerns about Mr P. Ms Martel attempted to assure Mr Martel that Mr P had changed. There was no discussion about D moving to Queensland as it was clear that he wanted to stay in Melbourne and have nothing to do with Mr P. S's views at that time were unknown. On 20 February 2006, Mr Martel said and I accept that Ms Martel made it clear to him that she intended to go to Queensland permanently with S and J.
The commencement of proceedings
On 22 February 2006, Mr Martel filed a complaint and summons in the Dandenong Magistrates Court for an intervention order against Mr P, naming Mr Martel and his three children as the aggrieved family members. An interim intervention order was made in Mr P's absence on 22 February 2006 and extended in his absence on 6 March 2006 to
27 March 2006. Mr P and Ms Martel both attended court that day. The court refused to continue the intervention order against Mr P.
On 23 February 2006, Mr Martel filed an application in the Family Court in which he sought orders restraining Ms Martel from taking the children to Queensland in the March 2006 school holidays or at any other time to meet or stay with Mr P. Mr Martel said that he was concerned for his children's safety if they should come into contact with Mr P and concerned that if they went to Queensland they would not return. Mr Martel sought orders that the children continue to live with Ms Martel, subject to her living within 30 kilometres of the former matrimonial home and subject to her not living with Mr P.
In an affidavit in support of his application, Mr Martel said that Mr P had a history of violent mood swings and aggressive behaviour which included hitting their father during an argument. Mr Martel said that during the time that Mr P and Ms K separated, Mr P was violent towards Mr Martel and Ms Martel and, as a consequence of a violent episode, was held in a psychiatric facility for over a week. Mr P denied having an unstable personality. There were no records of any psychiatric institution put before the court. Nor were there any police records indicating that Mr P had been charged with or convicted of any offence, except the incident involving B mentioned above.
Mr Martel also said that during Mr P's marriage to Ms K, Mr P was physically violent to both Ms K and their two children, N and B. This claim was not supported by any direct evidence from Ms K, N or B and was not supported by any police records or court documents. Ms Martel's diary notes from 1995 do indicate that she accompanied Ms K to court when Ms K obtained an intervention order against Mr P. However, the complaint may have been confined to verbal threats or harassment.
In the circumstances, I am not persuaded that Mr P was held in a psychiatric facility or was ever physically violent towards anyone other than B. However, I am satisfied that Mr P over the years has made verbal threats to numerous members of his family in an extremely frightening and physically intimidating manner. Even without physical contact, this is enough to constitute criminal assault.
Mr Martel also said in an affidavit that D is scared of Mr P and D had told him that he had bought a baseball bat to defend himself and his mother and siblings from Mr P. I accept this evidence.
The application filed on 23 February 2006 was served on Ms Martel the same day. Mr Martel said and I accept that, later that day, Mr P left a message on Mr Martel's telephone saying that if Mr Martel did not “pull his head in”, Mr P would start telling the children things about Mr Martel. One of those things is that Mr Martel had a conviction
27 years ago for robbery. On 3 March 2006, Ms Martel refused to allow Mr Martel to spend time with the children. On 5 March 2006, Mr Martel spoke to D by telephone but S and J refused to speak to Mr Martel. Mr Martel said in an affidavit sworn on 6 March 2006 that Ms Martel is a good mother and she would not deliberately expose the children to violence. Ms Martel filed a responding affidavit but it was not relied upon in this proceeding.
Orders permitting the children to be in Mr P’s presence
On 7 March 2006, interim orders were made by consent that the three children were to live with Ms Martel and spend alternate weekends with Mr Martel. Additionally, orders were made by the court permitting Ms Martel to take S and J on holiday to the Sunshine Coast from 10 March 2006 until 19 March 2006. The orders permitted Ms Martel, S and J to stay at Mr P's home but required Ms Martel to ensure that the children were not left alone with Mr P.
The holiday in Queensland took place. Ms Martel said and I accept that she received harassing telephone calls while she was staying at Mr P’s house in Queensland. She said that she received 53 telephone calls on 10 March 2006 and more on 11 March 2006. Ms Martel said the caller said nothing but breathed heavily. Ms Martel claimed that the calls were from N, the son of Ms Martel’s sister Ms K, and Mr P’s estranged step-son. Ms Martel claimed that N had a grudge against Mr P. I make no finding about who made the calls, as N has not been heard. However, on Ms Martel’s own evidence, the calls were not made by Mr Martel, but by another person who had his own reasons for disliking Mr P.
The alleged breach of the intervention order
On 26 March 2006, Mr P was staying with Ms Martel in Melbourne while Mr Martel had D, S and J for the weekend. The interim intervention order was on foot, prohibiting Mr P from being in the presence of the children. Mr Martel returned the children at 6.00 pm on the Sunday, in accordance with the orders of 7 March 2006. Mr P was still at Ms Martel’s house. Mr P and Ms Martel maintained that they had not changed their clocks back for daylight saving, with the result that they were unaware of the correct time.
D, who was then 16, saw that Mr P was in the house and went outside to tell Mr Martel. Ms Martel said that D had not long known that she was in a relationship with Mr P and D was not happy about it. Ms Martel said that D was intimidating her. The police arrived and arrested Mr P for breach of the intervention order. Before leaving, Mr P told Ms Martel that he could ask the police to remove D. Ms Martel did so. D has not lived with Ms Martel since. She said that she expected D to eventually accept her relationship with Mr P but he has not done so. D saw Ms Martel occasionally until November 2006, but he made a point of saying he was there to see S and J. D has said on a number of occasions in J’s presence that Ms Martel “kicked him out”.
Also on 26 March 2006, Ms Martel’s car was repossessed. It was under vendor finance and was supposed to be paid for by Mr Martel in lieu of child support. At midnight, Ms Martel and Mr P both received prank calls. They both believed them to be from N.
The dismissal of the intervention application
The following day, 27 March 2006, the charge against Mr P for breaching the intervention order was withdrawn, and the application for the continuation of the intervention order against Mr P was dismissed. Notwithstanding this, Mr Martel maintained that Mr P was guilty of breaching the intervention order. Under persistent cross-examination, Mr Martel maintained that Mr P had “technically” breached the order even though the charges were withdrawn.
Mr Martel's attitude indicates a refusal to accept that the legal process vindicated Mr P on this occasion. This suggests that Mr Martel is determined to demonise Mr P regardless of his actual present behaviour. While Mr Martel might have had good reason for concern about Mr P in the past, for the sake of his children, Mr Martel should also be open to the possibility that Mr P has changed.
Other events in March and April 2006
In about March or April 2006, S told Ms Martel that Mr Martel had said he had no problem with Mr P, he just wanted to be able to see his children on alternate weekends. Ms Martel in response offered to fly the children to Melbourne from Queensland each fortnight but Mr Martel refused. On 9 April 2006, Ms Martel received a message at 9.10 am and then a call from the same number but the caller did not speak. Ms Martel attended Dandenong Police Station and a senior constable said he would ask someone to speak to Mr Martel. It was never established who was responsible.
Final orders by consent: 7 June 2006
On 7 June 2006, final orders were made by consent whereby:
(a)Mr Martel and Ms Martel were to have joint parental responsibility for the children;
(b)D was to live with Mr Martel;
(c)S and J were to live with Ms Martel and spend alternate weekends and some school holidays with Mr Martel;
(d)the children were to remain enrolled in their current schools in Melbourne;
(e)Ms Martel was permitted to take S and J on vacation to the Sunshine Coast from 16 June 2006 until 2 July 2006, and at other times in the school holidays except when S and J were to spend time with Mr Martel;
(f)Ms Martel, S and J were permitted to stay at Mr P's home when they were on vacation in Queensland; and
(g)Ms Martel was to ensure that she was present when the children were in the presence of Mr P.
Ms Martel’s resumed attempt to relocate with S and J
One month after the final orders were made, on 7 July 2006, Ms Martel wrote to Mr Martel saying that she would be relocating with S and J to Queensland by the end of the year and seeking agreement on access arrangements. Mr Martel replied through his solicitors by letter dated 11 July 2006 to the effect that he would strenuously defend any application made by Ms Martel to relocate with S and J to Queensland.
On 14 September 2006, Ms Martel applied for an intervention order against Mr Martel after he allegedly told her to “plan for a funeral”. Ms Martel did not proceed with the application.
At around this time, J began having counselling at school with Ms Y. Ms Martel says that the counselling was needed because J was being harassed by D. However, it is apparent that the counselling is now for a vast array of family problems experienced by J.
Ms Martel’s removal of S and J contrary to orders
On about 22 November 2006, Ms Martel vacated her rental premises in Melbourne and drove with S and J to Txxx. Ms Martel enrolled the children in school at Txxx and they commenced there in late November. Ms Martel conceded that J was not aware at the time that Ms Martel intended moving the children permanently to Queensland. Ms Martel conceded that her action in taking a S and J to Txxx other than for a holiday was in breach of court orders.
Ms Martel’s reasons for taking S and J to Queensland
However, Ms Martel claimed that she had to take the children to Queensland because her health was being affected by threats and harassment from Mr Martel and his family and associates. More particularly, she provided a doctor’s letter dated 8 December 2006 to the effect that she suffered from high blood pressure in July and November 2006, but not in August 2006, as well as depression in October 2004 and insomnia in July 2006. The letter indicated that Ms Martel had been on anti-depressant medication from an unspecified date until about August 2006.
Ms Martel said and I accept that eggs had been thrown at her house on one occasion about three or four months before she moved to Queensland, that is, in about July or August 2006. She thought N was responsible. Ms Martel also said in oral evidence and I accept that in a six to eight month period she received over 100 SMS messages threatening her and saying, among other things, that she was a slut. Ms Martel reported these messages to the police and accused N of being responsible. The police interviewed N, who denied the allegations. The messages stopped for a while but then started again. They eventually stopped when Ms Martel changed her mobile telephone number. I make no finding about who sent the SMS messages, except that it was not Mr Martel.
Ms Martel said and I accept that when she was in Queensland on holiday, emails were sent from her personal computer at home to her, Mr P and Mr Martel. She said the emails were an attempt to discredit her to Mr P. They accused her of sleeping around and of not being a good person. Ms Martel believed that D hacked into her personal computer and sent the emails under her name. I make no finding about who sent the emails.
This explanation might be sufficient to justify Ms Martel taking herself to Queensland but it certainly does not justify Ms Martel taking S and J to Queensland contrary to court orders. Ms Martel claimed that she could not afford a lawyer to make an application on her behalf to vary the final orders that were made on 7 June 2006. However, Ms Martel also conceded that she did not seek assistance from a duty lawyer to enable her to make an application in person. Ms Martel has no excuse for not doing so.
In any event, Ms Martel's explanation for taking S and J to Queensland is unconvincing. On her own evidence, the telephone calls were from N, not Mr Martel. Most of the harassing telephone calls she received were made when she was in Queensland on 10 and 11 March 2006. The SMS messages were received over a period of time, but she was able to stop them by the simple solution of changing her telephone number. She also received the emails while she was in Queensland. The eggs were thrown on one occasion only, and she did not move to Queensland for three months after that incident.
I have no doubt that the real reason that Ms Martel moved to Queensland was to be with Mr P. She herself said that people are entitled to move on with their lives. She had no other family or friends in Queensland. Her whole social circle apart from Mr P is in Melbourne.
In general terms, it is a positive step for people to repartner. It tends to make people happier and thus better parents. However, Ms Martel chose as her new partner her husband's brother. In any circumstances, this choice was likely to be very confronting for Mr Martel and likely to create greater than usual stresses for the children in coming to terms with their mother's new partner. Exacerbating those difficulties was the fact that Mr P had been estranged from his family for many years in circumstances where Mr P had made shocking threats against numerous members of his family. To further compound the problem, Ms Martel chose a new partner who lived interstate.
As the events described below demonstrate, the ultimate result of Ms Martel's choice of a new partner was that J, in the words of the independent children's lawyer, was caught up in a maelstrom. Or, to use an image from popular culture, J was caught up in a perfect storm, where many factors combined to create a disaster. Ms Martel could and should have foreseen the extreme difficulties that her choice of a new partner might create for her children. I cannot help but think that if Ms Martel had waited a little longer to repartner, she would have had a range of prospective partners to choose from, any of whom would have been easier for her children to adjust to than Mr P.
The recovery order
Be that as it may, on 28 November 2006, Mr Martel filed an application seeking orders that:
(a)the final orders made on 26 June 2006 be discharged;
(b)S and J live with him;
(c)the mother return the children to him within 72 hours; and
(d)in default, there be a recovery order.
The application was heard on 11 December 2006. Ms Martel was represented by a solicitor on that day. Federal Magistrate Phipps ordered Ms Martel to personally attend the court in Dandenong with S and J on 19 December 2006 unless she had previously returned the children to Victoria. However, Ms Martel did neither. On 19 December 2006, Federal Magistrate O'Sullivan issued a recovery order and otherwise adjourned the matter to 29 January 2007.
Ms Martel applied for a stay of the orders made on 19 December 2006. The application was heard on 22 December 2006. Ms Martel appeared by telephone at the hearing of the stay application. The stay application was refused.
On 23 December 2006 at 11.30 am, the police attempted to execute the recovery order. It is common ground that S refused to leave with the police. She lay on the floor kicking and screaming. However, the police did take J and returned him to Mr Martel. Accordingly to a family report prepared some months later, J was traumatised by this experience.
Mr P’s alleged call on 2 January 2007
Mr Martel said that Mr P telephoned Mr Martel’s mobile on 2 January 2007 and J answered. Mr Martel said that, notwithstanding that J answered the telephone, Mr P yelled, screamed and made threats. According to Mr Martel, J was traumatised by this telephone call, wet himself and asked Mr Martel to lock all the windows and doors. Mr P denied this incident. I do not accept that it happened. As will be seen, J did not mention this incident or anything like it to the family report writer as a reason for not wanting to go to Queensland. Additionally, Mr Martel at the hearing made a number of other allegations about Mr P’s conduct which were unsubstantiated and which I do not accept. I consider that Mr Martel has manufactured events to portray Mr P as being worse than he now is. The fact that S is willing to live with her mother and Mr P indicates that Mr P now conducts himself reasonably well.
Interim orders for J to live with Mr Martel
The matter returned to court on 29 January 2007 when Federal Magistrate Phipps made orders, not by consent, that:
(a)S live with Ms Martel and spend time with Mr Martel in accordance with her wishes;
(b)J live with Mr Martel and spend time with Ms Martel as agreed between Mr Martel and Ms Martel;
(c)J communicate with Ms Martel by telephone each Tuesday and Thursday at 7.00 pm with Ms Martel to telephone Mr Martel’s mobile telephone;
(d)J spend time with Ms Martel from 6.30 pm to 8.30 pm on that day, being 29 January 2007, with collection and delivery at the Fxxx Shopping Centre McDonald's restaurant; and
(e)the matter be adjourned to the duty list on 5 March 2007.
The incident at Fxxx Shopping Centre
Contrary to the order made on 29 January 2007, Mr Martel did not deliver J to the Fxxx Shopping Centre McDonald’s until 7.00 pm or 7.15 pm on his evidence, or 7.30 pm on Ms Martel’s evidence. Either way, he was very late. Mr Martel said that he had to take J to the doctor at 6.00 pm because of an ear infection and then go home to collect Christmas presents from D and J for S and Ms Martel. This is an entirely inadequate excuse. At the very least, Mr Martel should have taken J to the Fxxx Shopping Centre McDonald's before going home to collect the presents. There was no medical evidence that J did indeed have an ear infection that required urgent medical attention on 29 January 2006. But if J’s medical condition had been urgent, Mr Martel should have explained the existence of the court order to the doctor's receptionist and asked to be seen earlier.
While J was with his mother in McDonald's, Mr Martel remained outside in the car park. Although the court ordered on 29 January 2007 that J was to have two hours with his mother on that day, Mr Martel went back into McDonald's at 8.30 pm. Mr Martel said that he told Martel that they would have to get going in 15 minutes because J was starting school the next day. Ms Martel said that at 8.30 pm
Mr Martel immediately tried to physically take J from her. Ms Martel said that she responded by pushing Mr Martel away. Mr Martel said that Ms Martel verbally and physically attacked him and punched him and slapped him. Ms Martel said that Mr Martel and D began intimidating her to the point where J became upset. Ms Martel said that J then said, “Mum, it is all right, I will take a chance and go with dad”.
I prefer Ms Martel's version of this incident. Even on Mr Martel's timeframes, which I do not accept, he would have allowed J to spend only from 7.00 pm until 8.45 pm with his mother. That is less time than the orders stipulated. Even if Mr Martel had a reasonable excuse for being late, he should have permitted J to have make up time with his mother, notwithstanding that it might have meant that he went to bed a little late. In reality, in my view, Mr Martel engineered things so that J had only from 7.30 pm to 8.30 pm with Ms Martel. That was only one hour, well short of the two hours that J should have had with his mother.
Another application for an intervention order
As a result of Ms Martel allegedly hitting Mr Martel in the Fxxx Shopping Centre McDonald's on 29 January 2007, Mr Martel applied for an intervention order against Ms Martel on 5 February 2007. Mr Martel was successful in obtaining an interim intervention order but at the final hearing on 6 March 2007 the application was dismissed.
The interim orders of 5 March 2007
On 5 March 2007, interim orders were made that:
(a)S spend time with Mr Martel from 6 to 13 April 2007 in Melbourne; and
(b)J spend time with Ms Martel from 29 June to 8 July 2007 in Queensland with D to accompany him.
Dinner on 6 March 2007
On 6 March 2007, D and J had dinner with Ms Martel at her mother’s house. This reunion apparently proceeded without incident.
L’s temporary departure from Txxx
According to Mr Martel, Ms Martel threw Mr P’s son, L, out of the house in Txxx in about May 2007. Mr Martel said that L had to call the police to be able to return to the house to collect his belongings. According to Mr P, L left of his own free will after an altercation with A; the police found L in the street and brought him home to collect his birth certificate. Mr P conceded that he was not at home when these events occurred. Ms Martel denied that she threw L out of the house and said that he left after an altercation with A. As both Mr Martel’s and Mr P’s evidence is obviously based on hearsay, and as it appears that Ms Martel has personal knowledge of the matter, I accept her evidence on the reason L left the home in Txxx.
The April and July 2007 school holidays
S did not visit Mr Martel in April 2007. J did not visit Ms Martel in June or July 2007. Ms Martel admitted that she is estranged from D. She believes that Mr Martel and D influence J to be reluctant to spend time with her. I cannot help but wonder, however, whether J might now willingly visit Ms Martel in Queensland if she had insisted in April 2007 that S visit Mr Martel in accordance with the court orders.
Ms Martel’s contravention application
In any event, Ms Martel filed a contravention application on 6 July 2007. She alleged that Mr Martel, without reasonable excuse, had refused to allow J to spend time with her on 29 June 2007, had refused to allow J to spend time with his mother by telephone on 12 April 2007 and had refused to allow J to spend time with his mother on 29 January 2007. On 11 July 2007, the first complaint was dismissed and the second and third were adjourned for further hearing at the final hearing listed for 1 August 2007.
Ms Martel’s telephone and written communication with J
Ms Martel has had a great deal of difficulty communicating with J by telephone since she moved to Queensland. Under the orders, Ms Martel was to ring Mr Martel’s mobile telephone. In an affidavit sworn on 27 July 2007, Ms Martel said, and I accept, that:
(a)she often had to call repeatedly before she could get through;
(b)Mr Martel would hang up the telephone if she asked J if he wished to speak to Mr P or A or L;
(c)Mr Martel said that J did not want to speak to Ms Martel;
(d)the calls were on speakerphone;
(e)Mr Martel was taping the calls; and
(f)she could sometimes overhear D and Mr Martel in the background saying things like, “Come on J, dinner’s ready.”
Ms Martel in the same affidavit acknowledged that S had at times refused to speak to Mr Martel by telephone. Ms Martel maintained that she had not denigrated Mr Martel in S's presence or hearing and said that S had made up her own mind based on what she had observed of Mr Martel. It is implicit in this statement that Ms Martel has not actively encouraged S to speak to Mr Martel by telephone. It appears that Ms Martel and Mr Martel have both failed to properly facilitate telephone communication by their children with the other parent.
Mr Martel as at 27 July 2007 had not given Ms Martel his and J's residential address but instead provided a post office box number. Ms Martel has written many letters to J but has not had any letters in reply. She did however receive a card thanking her for a present. Ms Martel was not sure whether J has received her letters.
The first family report
A psychologist, Mr G, wrote a family report dated 19 July 2007. He interviewed the children separately and reported as follows.
(a)D was 17 years old and doing a TAFE course. He was happy living with his father. D was unable to live with his mother and siblings because he did not get along with Mr P. D had no intention of going to Queensland unless he had to because J was going. D did not feel welcome in that household. D spoke to his mother and S by telephone occasionally.
(b)S was 15 and a half years old and doing year 10. She wished to stay in Queensland with her mother. S said that she had settled into school and made friends quickly and generally liked the lifestyle in Queensland. She said that she was close to her mother but missed J. S's wishes appeared to be soundly considered and she appeared determined to remain in Queensland.
(c)J was almost nine and in grade three at Uxxx's primary school. He said he was not “big” on schoolwork but liked his friendships and sport at school. J said he wanted to stay in Melbourne with his father and D. However, it was clear that he missed his mother and S. J reported that he spoke to his mother at least twice a week by telephone and received many letters from her. He also said that he spoke to S by telephone and they also talked on the internet. J said the time he had spent in Queensland was okay. J said that if he had to stay in Queensland he would not be very happy and he would miss his family and friends in Melbourne. He said that he loved playing football in the under nines especially as his father was the assistant coach. J said that he had told his mother what he wants but she believed it was his father's fault. J was reserved about spending time in Queensland but said that he would go if D could come. However, he said that as D is not allowed to go, J would not go either. (It is not clear whether J thought that D was not allowed by his mother or his father to go to Queensland.) When pressed about spending time in Queensland, J appeared concerned that he may not be allowed to return to Melbourne.
Mr G expressed the following opinions:
(a)J appeared to have thought about his situation but clearly felt caught between his parents and siblings in a family struggle that he did not want;
(b)J appeared to feel secure within his established networks in Melbourne, including school, football and his extended family;
(c)J clearly missed his mother and S with whom he has a very strong bond;
(d)J was aware of the tension between D and his mother and the difficulties regarding Mr P;
(e)if J had been living with Ms Martel at the time of the report, he could well have said that he wished to stay with his mother;
(f)J had a good relationship with D;
(g)Mr Martel appeared to be capable of caring for J who seems to be doing relatively well;
(h)“relocation can present a whole layer of added difficulties for children and should be explored with caution”;
(i)J should remain living in Melbourne; and
(j)subject to the court being satisfied about J being adequately cared for in Queensland and returned from Queensland, J spending half holidays with his mother might be appropriate.
On the basis of the material contained in Mr G’s report, I find that, up until July 2007, J was able to speak to his mother twice a week and he did receive her letters.
Interim orders: 1 August 2007
The matter was listed for final hearing on 1 August 2007. However the hearing did not proceed. Instead, interim orders were made as follows:
(a)J spend time with Ms Martel in Melbourne on 1 August 2007 from 6.30 pm to 8.30 pm with changeover at Dandenong Police Station;
(b)J spend time with Ms Martel in Queensland:
(i)from 29 September 2007 to 6 October 2007; and
(ii)from 22 December 2007 until 12 January 2008;
(c)S spend time with Mr Martel in Melbourne:
(i)from 22 to 29 September 2007; and
(ii)12 to 26 January 2008;
subject to S’s wishes;
(d)Mr Martel shall not permit telephone calls between Ms Martel and J to be recorded, broadcast by speakerphone or interfered with;
(e)Ms Martel, Mr Martel and J attend for an updated family report; and
(f)Ms Martel and Mr Martel attend therapeutic counselling to resolve their differences regarding the care of J.
The attempted contact at Dandenong Police Station
There was disputed evidence about the events at Dandenong Police Station on 1 August 2007. However, it seems to be common ground that Ms Martel arrived with Mr P and J arrived with Mr Martel and D. J said that he did not wish to spend time with his mother and refused to go with her. At this stage, Mr Martel on his own evidence “stood back and observed” rather than encouraged J to spend time with his mother. J began to scream. The police said they could not do anything about it. Ms Martel left without J.
Mr Martel said that before J started screaming, Ms Martel had said she had orders and grabbed J by the arm and tried to take him to the front door. Mr Martel also said that Mr P had escalated the situation by yelling, “get him out the door”, “you have to go” and “these two have poisoned your mind, just get him out the door”. I accept Mr Martel’s evidence on these matters. It seems to me to be consistent with the attitude displayed at the hearing by both Mr P and Ms Martel.
Ms Martel said that she had arrived at the police station 15 minutes early and been told that Mr Martel had telephoned to advise that J did not wish to attend. Mr Martel denied this and said that the first he knew of J's reluctance was when J said he did not wish to go with his mother at the police station. I prefer Ms Martel's evidence. Again, it seems to me to be consistent with Mr Martel’s attitude displayed at the hearing.
Ms Martel also said that Mr Martel did not encourage J to go with her. Mr Martel said that he had done everything he could to encourage J to go with his mother. However, that is contrary to Mr Martel's own evidence that he “stood back and observed”. I do not accept that Mr Martel on this occasion did encourage J to spend two hours with his mother, contrary to his legal obligation to do so.
J did not visit Queensland
Contrary to the orders made on 1 August 2007, J did not spend time with his mother from 29 September 2007 to 6 October 2007 or from J
22 December 2007until 12 January 2008. Apparently, J said that he did not want to go.
J's telephone communication with his mother
Ms Martel said that she spoke to J on the telephone on 7 August 2007. However, Ms Martel said that she could hear D speaking in a clear voice as if the telephone was on speakerphone. Ms Martel said that she would buy J his own mobile telephone and D immediately interrupted and asked if Ms Martel could buy him a new telephone as well. I accept Ms Martel's evidence on this matter. The orders of 1 August 2007 prohibited Mr Martel from allowing Ms Martel's calls to be broadcast on speakerphone or interrupted.
Ms Martel also said that when she telephoned J on 14, 16 and 21 August 2007, he said, “Mum I don't want to talk, goodbye” and hung up the telephone. Ms Martel said she kept a record of her attempts to speak to J by telephone. She said that she was able to speak to him on nine occasions between 9 August 2007 and 20 December 2007 but was unable to speak to him on 28 occasions between those dates. On five occasions, Ms Martel said that Mr Martel sent her a text message asking her to ring D's telephone instead of his own. Ms Martel said on 20 November 2007, she repeatedly rang D's telephone only for the call to be diverted to message bank until D finally answered. He said that if the telephone cut out it was not his fault and then the call was disconnected. Ms Martel rang back twice and the call went through to message bank. Ms Martel said these events were typical of the occasions when she needed to ring on D's telephone. I accept Ms Martel's evidence on these matters. It indicates a very poor effort on Mr Martel’s part.
During a telephone conversation with J on 20 September 2007, J asked Ms Martel why she had “kicked D out” of her home and then yelled at her to “just answer the question”. J then accused Ms Martel of lying to him about buying him a mobile telephone.
On 27 September 2007, Ms Martel had a good telephone conversation with J. Ms Martel thought this was because neither Mr Martel nor D was present. Mr Martel claimed that he was present during this telephone conversation. He said that he was in the passenger seat of his truck while J was in the driver's seat. I do not accept Mr Martel's evidence on this matter. In view of all the evidence, I consider that Mr Martel has obstructed J’s telephone and other communication with Ms Martel and has merely pretended to facilitate it. I accept Ms Martel's construction of the events on 27 September 2007, that is, that the telephone conversation proceeded well because J was not being overheard by either his father or D.
Ms Martel said that D repeatedly interrupted her telephone conversation with J on 2 October 2007. She said that J after a while began to echo D's phrasing and said, “just answer the question mum”. I accept this evidence.
J said that he wanted a Nokia black slide camera telephone like D's. Ms Martel discovered that they cost $400. Ms Martel considered this to be excessive for a nine year old. Instead, Ms Martel sent J a Samsung black slide camera telephone for his birthday on 20 October 2007. J sent the telephone back saying that it was not exactly the same as D's. Mr Martel maintained that he had encouraged J to keep the Samsung telephone. However, Mr Martel conceded that he had physically assisted J to send the telephone back to Ms Martel.
I consider that $400 is an excessive amount of money to spend on a telephone for a nine year old child. I also consider that Mr Martel did not sufficiently encourage J to keep the telephone and use it to communicate with his mother. I also consider that Mr Martel should not have assisted J to return the telephone to his mother and that doing so tended to undermine J’s relationship with her.
S's visit to Melbourne: December 2007, January 2008
On 15 December 2007, S went to Melbourne to spend time with Mr Martel. The plan was that she would return on 22 December 2007 with J. Ms Martel booked tickets accordingly. Ms Martel said that she telephoned the airline to vary J's ticket and discovered that S’s and J's tickets had both been cancelled by Mr Martel. Ms Martel said that after S's flight had been due to leave, she received a text message from Mr Martel stating, “Sorry S missed her flight”. I accept Ms Martel's evidence on these matters. Mr Martel’s text message was simply deceitful. He had no right to cancel the tickets. The fact that he did so indicates that he made no attempt to encourage J to get on the aeroplane on 22 December 2007. On the contrary, I consider that he actively discouraged J from doing so.
Ms Martel said that she telephoned S but could not get through so telephoned Mr Martel. He said that S was at her friend O's house. Ms Martel said she telephoned the Dandenong Police Station and a police officer telephoned Mr Martel and was again told that S was at O's. Ms Martel said that she eventually spoke to S later in the afternoon and S said that she had been at her father's house the whole time. I accept Ms Martel's evidence on these matters.
It was put to Ms Martel that she should not have called the police on this occasion because they may have attended Mr Martel’s house and further traumatised J. That is true, but equally, Ms Martel would not have thought of ringing the police if Mr Martel had let her speak to S. It is obviously in J’s best interests for his family to reduce their involvement with the police. J is likely to have less involvement with the police if everyone concerned behaves honestly and reasonably and promotes a good relationship between each of the children and each of their parents.
While S was in Melbourne, she developed a relationship with a
17 year old boy named M. There was a family New Year's Eve barbecue attended by Mr Martel, S and M among others. Mr Martel at one point mistakenly thought M was smoking marijuana. Mr Martel grabbed M by the throat. Mr Martel said that he apologised when he realised his mistake. Mr Martel denied that he had ever been violent. When reminded that he had grabbed M by the throat, Mr Martel persisted in his denial that he had ever been violent and sought to excuse his behaviour on the grounds that he had mistakenly thought M was smoking marijuana.
At the same barbecue, S told Ms Martel that Mr Martel pushed M off a chair and he ended up with a deep gash on his foot. Mr Martel conceded that M’s foot was cut, but said that it had just happened when M was walking around the backyard. Mr Martel conceded that M had fallen off his chair when Mr Martel was walking towards him but claimed that he had not pushed M. In view of Mr Martel’s false denial that grabbing M by the throat constitutes violence, I do not accept Mr Martel’s denials that he pushed M off a chair with the result that M gashed his foot. On the contrary, I accept S’s account of this matter.
It is most concerning that Mr Martel does not recognise that grabbing a
17 year old boy by the throat is an act of violence. It is also most concerning that Mr Martel pushed M off his chair with the result that M was physically injured. Mr Martel denied that J personally witnessed these incidents, claiming that J was inside watching a DVD. However, I daresay J has heard about them. J’s understanding of proper human conduct could be seriously distorted by his father behaving so atrociously at a family gathering.
Mr Martel exhibited to an affidavit sworn on 11 February 2008 an email sent by S to Ms Martel on 3 January 2008. Mr Martel said that he “came across it” on his computer. However, I have no doubt that he looked for it. This was clearly an invasion of privacy and a breach of trust. Mr Martel sought to justify his behaviour on the grounds that, as a parent, he needed to know what his children were doing on the computer. It might be appropriate to use filtering software to prevent children from accessing certain web sites. However, it is not appropriate to look through a child’s emails, read a child’s email that is clearly addressed to her mother and then annex it to an affidavit. The fact that Mr Martel sees nothing wrong with this behaviour suggests that he has lost sight of proper boundaries and will take unacceptable steps to succeed in this litigation.
S's email said, among other things:
I have been asking and confronting family about … why they think you are such a bad person … they said things like Mr P hits you, and your going to leave him, and you chose him over us three kids … I have even been told you slept with X when you were with Mr P, and when you were with dad u called up G and asked to sleep with him.
i said you were not a bad person and that you would never do these things EVER and i said Mr P would never hit you because he isn't like that.
…
now that you can believe Mr P and think im a lying cow and a slut coz yes he has called me those things but I know you're better than that and I know you would never choose Mr P over me .. or would you?
Mr P admitted calling S a lying cow but denied calling her a slut. I consider it to be likely that Mr P called S both of those things. Whatever S may have done, it is completely unacceptable to describe anyone in those terms, especially a 15 year old girl.
I also consider that the statement in the email to the effect that Mr P would never hit Ms Martel is powerful evidence that Mr P has never hit Ms Martel in S's presence and that S has never seen any indication that Mr P has hit Ms Martel or might be inclined to do so.
The email also provides evidence that Ms Martel is being denigrated in Mr Martel's household. Notwithstanding Mr Martel's protestations to the contrary, I consider that it is very likely that J has overheard sustained and savage disparagement of his mother while in the presence of Mr Martel and D. This of course puts J in a very difficult position. As a nine year old boy, J should be allowed to feel loyalty to both of his parents and should be allowed to feel proud of both of them. The denigration of his mother would undermine his right to have those feelings and would tend to make J feel that he must choose between his parents. It is, of course, very distressing for a child to lose a close and loving bond with either of his parents.
Mr Martel also exhibited to his affidavit sworn on 11 February 2008 an email sent by S on 11 January 2008 to both her mother and her father. In that email, S explained that she missed Melbourne and was staying on of her own free will but that she had not made a final decision to remain in Melbourne. I accept that that email accurately stated S's views at the time.
The interviews for the second family report occurred on 20 January 2008. When S was about to return to Queensland on 21 January 2008, Ms Martel said that S told her that she had approached Mr Martel to give him a hug, and Mr Martel said, “Don't even bother S”. Mr Martel conceded that he did say those words, but claimed that meant that S did not need to apologise for returning to Queensland. However, he did not claim that he had actually given S a hug.
I do not accept Mr Martel’s evidence on this point. In my view, he was hurt that S had decided to return to Queensland and he rejected her attempt to hug him. This was very immature behaviour on Mr Martel’s part. He was obviously attempting to make S feel bad for choosing to return to her mother. He was also attempting to force S to choose between her parents. Children should never be put in that situation. Children are entitled to have a good relationship with both of their parents. They are entitled to have each of their parents encourage them to have a good relationship with the other parent.
Ms Martel also said that S had asked her father to book her a flight so that she could return to Queensland with her mother on 21 January 2008. Ms Martel said that Mr Martel replied that Ms Martel should do it. Mr Martel did not deny these claims and I accept Ms Martel's evidence on these matters. Mr Martel had cancelled S and J’s flights on 22 December 2006 and caused Ms Martel to lose the fares.
Mr Martel should at least have arranged and paid for S’s return on
21 January 2007. The fact that he refused to do so shows again that he was obstructing a meaningful relationship between S and her mother.
Ms Martel said that S told her that J had said how naughty his mother had been for kidnapping him. Mr Martel denied that he had ever said such a thing in J's presence. However, I accept Ms Martel's evidence on this matter. Ms Martel’s decision to relocate with S and J to Queensland in defiance of court orders was unlawful and foolish. However, as explained later in these reasons, J needs to have a meaningful relationship with his mother. To describe her relocation with J as kidnapping undermines the development of such a relationship.
Ms Martel was in Melbourne from 18 to 20 January 2008 for the family report interviews. S stayed with her during that time. S sent
Mr Martel an SMS text message on 19 January 2008 asking if J could spend time with S and Ms Martel for dinner. An SMS text message was received from Mr Martel's telephone saying it was from J and D saying, “thanks but no thanks”. Mr Martel did not deny this and I accept it. Again, Mr Martel demonstrated that he was not taking available opportunities to encourage and facilitate a meaningful relationship between J and Ms Martel.
Lunch on 20 January 2008
On 20 January 2008, J, S and D all had lunch with Ms Martel after the family report interviews. This occasion apparently went well.
The second family report
Mr G provided a second family report dated 30 January 2008. Since the previous report, Mr G saw J alone on three occasions, and saw J on one occasion with Ms Martel, D and S. Initially, J stated that he did not wish to go to Queensland and “no one would make him, not even the judge”. He was also clear that he did not wish to speak to his mother on the telephone but said he had recently told her that he wanted to be her pen pal. J was unable to articulate why he found it difficult to speak to his mother on the telephone. Mr G expressed the view that J may be unwilling to speak to his mother on the telephone because he felt pressure from her during telephone conversations to go to Queensland to see her.
J talked about how worrying it was for him when the police executed the recovery order when he was last in Queensland. J also talked about other incidents where there had been police involvement. Mr G said that:
It is clear that these incidents have had an almost traumatic impact on this young boy and they appear to have become embedded in his thought processes around time in Queensland.
Mr G said he had little doubt that J still misses his mother and mentioned the grief that J experiences. I take this to be grief that J feels for the loss of a warm, loving and close relationship with his mother.
J remained adamant about not going to Queensland. It seems that he was asked what he would do if he were required to go. He said, “I would just keep screaming.” However, J was unable to articulate his reasons for not wishing to go to Queensland.
When the meeting with Ms Martel took place, J was initially tearful, angry and defiant with his mother and said that he did not wish to be there and did not wish to see her. However he later settled and became talkative and excited. Mr G considered that it was clear that J wished his relationship with his mother to be repaired and after some time in her company he “lightened” with what appeared to be a great burden being lifted.
J spoke openly of his wish that his family would be back together and that he could have a relationship with both of his parents and his siblings. After the meeting, J, D and Ms Martel had lunch together. Apparently, this went reasonably well.
Mr G saw J a few days after the joint meeting with his mother. J at this stage was somewhat less defiant about time with his mother but was clear that he would not go to Queensland and still struggled with the idea of telephone communication. Mr G reported that J remained very much divided and wished most for everyone to be together or at least not be so distant.
Mr G considered that J's reluctance and reported terror about going to Queensland was not simply manufactured by Mr Martel but had a much deeper causation, including:
(a)the divisions in J's family;
(b)his fear of not being easily returned from Queensland;
(c)loyalty to his father and D and extended family (other than Mr P); and
(d)feeling rejected by his mother who was many miles away.
Mr G said that the preparation of this report had been concerning for him because of the depth of this family's distress, the continuation of the dispute and the continuing chaotic nature of events. Mr G said J is “in the centre of this storm”. In general, Mr G considered that J was “doing relatively okay but the ongoing distress concerning his mother overloads at times”. Mr G considered that J uses a cut-off mechanism to deal with the pain he was feeling.
Mr G concluded that there was little to suggest that it was in J's best interests to live with his mother in Queensland at this time and said that:
there is little to be gained in forcing him (if such is possible) onto a plane at this stage. … J craves time with his mother but will not go to Queensland. … J wants/needs his mother's input, [but] it is unlikely to be managed from Queensland at this stage and in fact may provoke further trauma for J at the present time.
…
… J having time with his mother in Melbourne … would appear to be more workable … . it would allay many of J's fears and also gather further support from the father and even D. … such a plan is likely to achieve open support and be one that J will be able to manage.
J’s time with his mother
Since December 2006, J has spent time with his mother as follows:
(a)an hour or so on 29 January 2007 at Fxxx Shopping Centre McDonald’s;
(b)a meal at Ms Martel’s mother’s place on 6 March 2007; and
(c)a lunch after the family report interviews on 20 January 2008 with S and D being present.
The paternity issue
At the commencement of the hearing, Mr Martel said he was withdrawing his application for S to live with him because he doubted his paternity of her. He claimed that:
(a)Ms Martel’s sister Ms V had indicated in July 2006 that he may or may not be S’s father;
(b)he had since then worked out that he and Ms Martel were not living together at the time of S’s conception;
(c)S’s appearance made him suspicious; and
(d)S called him by his first name rather than Dad.
Ms Martel said she had never doubted her children’s paternity and, until the announcement in court, had never heard any allegation that Mr Martel was not the father of her children.
I find it extraordinary that Mr Martel could so recently, and on such slender evidence, have begun to doubt his paternity of S. I consider that Mr Martel does not in fact have any significant doubts about his paternity. Instead, I consider that Mr Martel recognised that it was unlikely that the court would order a 15 year old girl to live with a parent against her wishes and, rather than simply withdrawing the application, decided to slander Ms Martel’s reputation. Mr Martel said that he did not want J to become aware of the allegation, and thus displayed some recognition of how damaging such an allegation could be. However, he made the allegation regardless.
Additional allegations against Mr P
At the hearing, Mr Martel raised for the first time four incidents which he said were J’s reasons for not wanting to spend time in Queensland with his mother. The four incidents were:
(a)J had caught Mr P and Ms Martel having sex during the day;
(b)Mr P had screamed abuse at J for not knocking on the door and interrupting them;
(c)Mr P crashed the car at a roundabout while S and J were in the car; and
(d)Mr P, while sitting on the toilet, waved at J when he walked past.
Mr P and Ms Martel admitted that there was a minor car accident at a roundabout in which no one was injured. Otherwise they denied the allegations. I do not accept the other three incidents occurred and I do not accept that J was so troubled by the minor car accident that he nominated it as a reason for not spending time with his mother in Queensland. J did not mention these incidents to the family report writer as reasons for not wanting to go to Queensland. In my view, they are late inventions to bolster Mr Martel’s case, and to try to give a reason for J’s reluctance to go to Queensland other than Mr Martel’s undermining of J’s relationship with his mother.
The prospect of further relocations
Mr Martel was asked whether he would be able to move to Queensland to be near S and J, if the court decided that it was in J’s best interests that he live there with his mother. Mr Martel said he could not move to Queensland because he has extended family in Melbourne.
Ms Martel said she could not come back to Melbourne to face the threats and harassment she had experienced previously. However, she also said that, if it were ordered that J remain in Melbourne, she would probably be able to come back to Melbourne for three to six months, live with her mother and seek to repair her relationship with J.
Ms Martel said it would be hard for S to come too, because she has a life in Queensland now. However, Ms Martel also said that, in view of what J was going through, she may need to sacrifice some other things to further her relationship with J.
When asked whether he could move to Melbourne, Mr P said, “Absolutely not.” He said that he has no ties here, he is entrenched in Queensland and he likes the lifestyle there. Mr P also said that his sons would not move to Melbourne. He said, if Ms Martel moved to Melbourne for three to six months, their relationship would continue but would be strained.
“Bound and gagged”
At the hearing, Mr G was asked how one would go about actually getting J onto an aeroplane to go to Queensland. Mr G replied:
I’m not being flippant, but almost bound and gagged I think. Like, J was really clear that he would have to be dragged screaming on to the plane.
Mr G also said that, with counselling, J might eventually be persuaded to go to Queensland to spend time with his mother. Mr G was asked about the benefits of intensive counselling, in say, two blocks of one week during the term 1 and term 2 school holidays in 2008, as opposed to three to six months of less intensive counselling. Mr G said that intensive counselling was not recommended for children and the less intensive option would be much better for J and more likely to succeed.
Mr G in oral evidence said that J is carrying a lot of
deep-seated fears, has disturbing nightmares and has been “almost traumatised”. Mr G said that the fact that Ms Martel lived so far away made it difficult for her and J to gradually rebuild their relationship. Mr G also emphasised that J has a lot of networks in Melbourne, being his extended family, school, friends and football, and referred to the detriments in taking children out of their established networks.
Ms Martel’s and Mr P’s attitudes
Ms Martel and Mr P were both asked how they imagined it would work out if it were ordered that J lives with them in Queensland. Mr P thought that J would be fine after a few days. He said that, in his honest opinion, if J could just spend one hour in a room alone with
Ms Martel, their relationship would be repaired.
Ms Martel said she did not accept any responsibility for the deterioration in her relationship with J, because of what J had been told about her and Mr P. She said twice that she thought it was as simple as that and said that there were no other factors at work. She said she had not thought about how she would actually get J onto the aeroplane. She said that she would repair her relationship with J by talking to him and perhaps taking him to counselling in Queensland.
In my view, Ms Martel’s attitude is staggering. She has completely failed to appreciate her role in J’s present predicament. She and Mr P seem to think that J does not have a real problem, and that an hour together will solve everything. That view is contrary to the expert evidence of Mr G which I accept. Having said that, in my view, both sides of this family need to acknowledge that they have made serious mistakes that have resulted in an appalling downward spiral for J. The reality is that J is torn between his parents and he needs both of them to focus on his needs rather than their own.
Authorities concerning relocation
Ms Martel wants J to relocate to Queensland to live with her. Accordingly, it is necessary to consider the authorities relating to relocation matters.
AMS v AIF
The relevant principles in relocation matters were explained by Kirby J in the High Court in AMS v AIF (1999) 199 CLR 160; FLC 92-852 as follows (citations omitted):
142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approachhttp://web2.westlaw.com/result/result.aspx?cite=199+CLR+160&cxt=DC&fcl=False&rp=%2fFind%2fdefault.wl&ss=CNT&docsample=False&cnt=DOC&n=1&rlt=CLID_FQRLT363923118&service=Find&ReferenceSDU=214&ReferencePositionType=T&ReferencePosition=FN%3BFFN%2E140&AP=&fn=_top&rs=WLW6.07&mt=WestlawAustralia&vr=2.0&sv=Split&sp=famcourt-2004.
143 Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144 Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146 Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the “feminisation of poverty” resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147 Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148 Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149 Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court’s discretion.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility, s.65daa of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
If it were not for Mr Martel and Ms Martel living a long way apart, and if it were not for J having spent minimal time with his mother since December 2006, it could well have been in J’s best interests to live with each of his parents in alternate weeks. Ms Martel has been J’s primary carer for most of his life. On the whole, she has been a good mother to him. Equally, Mr Martel has demonstrated that he is capable of being J’s primary carer. For the same reasons, it could well have been in J’s best interests for J to spend substantial or significant time, as defined, with each of his parents.
However, Mr Martel has made it clear that he will not move to the Sunshine Coast. Ms Martel has made it clear that she will not move to Melbourne for more than a few months. Mr P made it clear that he would not move to Melbourne permanently. It was implicit in his evidence that he would not accompany Ms Martel to Melbourne if she lived here for a few months to engage in therapeutic counselling with J. There is also the complicating factor of S now being established at school and in her social life in Queensland.
The result is that there are physical barriers to J spending equal, or even substantial and significant time, as defined, with each of his parents. Those barriers, at present, appear to be insurmountable. Assuming that the court has the power to do so, I do not consider this to be an appropriate case to order one parent or the other to move interstate against his or her will. The relations between J’s parents are difficult enough already. Forcing one or the other of them to move interstate would make communication between them, in all probability, impossible. That would not be in J’s best interests.
As a result, in this case, it is not reasonably practicable to give J equal or substantial and significant time, as defined, with each of his parents. His time with one of his parents will need to be confined to school holiday times, and such occasions as the parent who lives interstate is able to spend in the state where J lives.
Where J should live
In considering where and with who a child is to live, there needs to be a weighing up of the relative merits of the prospective proposals, bearing in mind the matters mentioned in s.60CC of the Act and the legislative requirement to consider the child spending equal or substantial and significant time with each parent.
As explained above, I consider that it is virtually imperative for J to have a meaningful relationship with his mother. I do not consider that J would be at any appreciable risk of being subjected to or exposed to abuse, neglect or family violence if he were to live with Ms Martel and Mr P. I do not consider that either parent is more likely than the other to facilitate a close and continuing relationship between J and the other. I consider that removing J from his present familiar environment and familial and social networks could be very damaging for him. Whoever J lives with, and whether he lives in Melbourne or Txxx, there are going to be practical difficulties and expense in J spending time with the other parent. Both of J’s parents are capable of providing for his emotional and intellectual needs, although both of them need to be more mindful of his need for a relationship with his other parent. With that exception, both parents have displayed a mature and responsible attitude towards their obligations as parents. There are no relevant family violence orders. In the context of the extremely litigious history of these parties, I am unable to predict what order might be the least likely to lead to the institution of further proceedings so I am unable to consider whether it would be preferable to make that order.
The only other relevant matter, in my view, is J’s wishes. In the context of this case, it seems to me that J’s wishes, and the consequences of not deciding the matter in accordance with those wishes, need to be given very great weight. That is so, even though J is only nine years old, and, as such, his views would not normally be a major factor in determining where he should live.
Mr G gave evidence that J will not board an aeroplane to travel to Queensland without being “almost bound and gagged” and without being “dragged screaming” onto the aeroplane. I accept that evidence. The evidence overall indicates that J is in a delicate emotional state at present. I do not accept the view of Ms Martel and Mr P that everything with J would be alright once Ms Martel is able to spend a bit of time with him. I find that, as matters stand, J could not be persuaded to voluntarily board an aeroplane to go to Queensland. I consider that compelling J to board an aeroplane to go to Queensland would be traumatic for him. It is not in J’s best interests that he be traumatised. Accordingly, as things stand, it is not in J’s best interests that he lives in Queensland.
Neither of the parties nor the independent children’s lawyer sought an adjournment of the final hearing to enable therapeutic counselling to take place before final orders were made. That position was understandable, given the protracted history of this matter. The result is that the court must make orders based on the circumstances as they exist at present, and as they can be foreseen with reasonable confidence. I cannot predict with any confidence that therapeutic counselling will result in J voluntarily going to Queensland on a permanent basis.
In all of the circumstances, it is very clear that it is in J’s best interests that he remains living in Melbourne. As Ms Martel is unwilling to live in Melbourne, except possibly on a temporary basis, it is in J’s best interests that he lives with his father. There will be orders accordingly.
J’s time with Ms Martel
It was agreed that if J were to continue living in Melbourne, he should spend half of school holidays with Ms Martel. She was agreeable to J spending the second half of the 2008 term 1 and term 2 holidays with her at her mother’s place in Melbourne. I consider that that arrangement is in J’s best interests.
The independent children’s lawyer, with the support of Mr Martel, proposed that J’s time with his mother commence when a therapeutic counsellor said that J was ready to start spending time with his mother. Ms Martel suggested that J’s time with her should commence without restriction.
I note that J’s most recent time with Ms Martel, on 20 January 2008, took place without any untoward incidents. S and D were present. That may have helped J feel comfortable. Mr G’s evidence was that J had major difficulties at present with travelling to Queensland.
J has been reluctant to talk on the telephone with Ms Martel. However, Mr G thought this was connected to Ms Martel pressuring J during telephone conversations to go to Queensland. It might also have been that J’s telephone conversations were being overheard or that J, out of loyalty to his father, resisted the telephone conversations. In any event, J’s reluctance to speak to Ms Martel by telephone does not, in my view, mean that he is presently reluctant to spend time with her.
In my view, it is in J’s best interests to spend time straight away with Ms Martel in Melbourne at her mother’s house, without first consulting a psychologist. J has successfully spent time with Ms Martel in the recent past. Interposing a psychologist’s assessment and permission, in my view, will unnecessarily protract and complicate matters.
However, to maximise the chances of J’s time with Ms Martel proceeding smoothly, I consider that it is in J’s best interests that his time with Ms Martel until at least the 2008 term 3 school holidays take place without Mr P being present, and, if possible, with S being present.
The parties made no proposals for changeover during 2008 term 1 and term 2 school holidays. J has had distressing events occur at a police station and at a McDonald’s. I do not consider that either of those venues would be appropriate. In my view, at the commencement of J’s time with Ms Martel, Mr Martel should deliver J to the shopping centre nearest to Ms Martel’s mother’s house and at the conclusion of that time, Ms Martel should deliver J to the shopping centre nearest to
Mr Martel’s house. I will hear the parties on the names and whereabouts of those shopping centres.
I should add that the court expects Mr Martel to deliver and collect J on time and after giving him genuine encouragement to spend time with his mother. I trust that Mr Martel by now does truly appreciate that it is fundamental to J’s well-being that he has a meaningful relationship with Ms Martel. It is necessary, for J’s benefit, that Mr Martel rises above whatever hurt he feels and genuinely encourages J to fully engage with his mother.
As far as subsequent school holidays are concerned, the independent lawyer, with the support of Mr Martel, suggested that J continue to spend time with his mother in Melbourne unless and until a therapeutic counsellor considered that J was ready and willing to travel to Queensland. Ms Martel proposed that J spend time with her in Queensland from the 2008 term 3 school holidays onwards.
I suspect that J will be ready to spend time with Ms Martel in Queensland by the time of the 2008 term 3 holidays. However, making orders to that effect now will pre-empt the process of therapeutic counselling that the parties agree is appropriate if J is to continue living with his father. Making the orders sought by Ms Martel now would signal that the therapeutic counselling will necessarily result in J being ready and willing to go to Queensland within a particular timeframe. It seems to me that following such a course could undermine the benefit of therapeutic counselling. Accordingly, I accept the independent children’s lawyer’s submission that J’s time with Ms Martel should continue in Melbourne unless and until the therapeutic counsellor states in writing that J is ready and willing to travel to Queensland to spend time with his mother.
If and when J is ready and willing to travel to Queensland to spend time with his mother, Ms Martel sought orders that:
(a)J be permitted to travel unaccompanied to and from Mxxx airport;
(b)Mr Martel pay J’s first two return airfares; and
(c)thereafter, Ms Martel and Mr Martel pay alternately.
The reason that Ms Martel wanted Mr Martel to pay for the first two return airfares was that Mr Martel had cancelled S’s flight on
21 December 2007and caused Ms Martel to lose the fare, and then made Ms Martel pay for S’s return on 21 January 2008. I think
Mr Martel’s behaviour in relation to S’s flights was very poor. However, in the interests of ensuring a good start to J spending time with his mother in Queensland, I consider that the safest course is for Ms Martel to organise and pay for J’s first two return flights to Queensland, Mr Martel to pay for the next four and Mr Martel and
Ms Martel to pay for J’s flights alternately thereafter.
Ms Martel also sought orders that, if she comes to Melbourne after the 2008 term 3 holidays, upon giving Mr Martel seven days notice, J spend at least 48 hours with her, and, if Mr Martel and J should go to Queensland, J spend at least 48 hours with her. I consider these proposed orders to be in J’s best interests. It maximises the time that J is able to spend with his mother and promotes a meaningful relationship between them.
Telephone communication
The independent children’s lawyer and Mr Martel did not make proposals for telephone communication between J and his mother. The mother proposed that there be such communication between 6.30 pm and 7.00 pm each Tuesday and Thursday to Mr Martel’s landline.
Mr Martel has declined to give Ms Martel his landline telephone number because he says he fears that Mr P will ring him up and abuse him, D or J. I think that is a very unlikely scenario. The reality is that Mr Martel’s landline is also J’s landline. As is customary in these matters, the consequence of an order that communication take place on a landline is that Mr Martel needs to ensure that J is at home at those times. It is in J’s best interests that he is able to speak to his mother on his home telephone at set times.
However, telephone communication in the past has been very vexed. I consider that it should not commence until the therapeutic counsellor states in writing that J is ready and willing to have telephone communication with his mother. Additionally, I consider that the restraints previously imposed on the telephone communication between J and his mother being taped, overheard or put on speakerphone should be continued. From an abundance of caution, and to give some comfort to Mr Martel, I also consider that Mr P should be restrained from telephoning Mr Martel’s landline number.
Therapeutic counselling
It was agreed that if J were to remain living in Melbourne, there should be therapeutic counselling. There were some differences between the parties in the details. Ms Martel sought orders that there be therapeutic counselling without specifying any duration or time for the counselling. The independent children’s lawyer, supported by Mr Martel, sought orders that:
(a)if the mother returns to Melbourne within four weeks of the date of this order, and remains living in Melbourne for at least three months, then as soon as practicable the mother, the father and J attend upon Mr V, or another psychologist agreed to by the parties, as soon as practicable for therapeutic counselling concerning J's relationship with his mother and his reluctance to spend any time in Queensland, such counselling to take place throughout the three or more months of the mother’s residence in Melbourne;
(b)otherwise, the therapeutic counselling take place in the second half of the 2008 term 1 and term 2 school holidays.
The independent children’s lawyer relied on the evidence of Mr G to the effect that less intensive and longer term counselling would be more likely to be effective for a person of J’s age. I accept that evidence. Accordingly, there would be benefits in Ms Martel living in Melbourne at her mother’s place for three months while the therapeutic counselling was taking place. Among other things, it would send a strong signal to J that Ms Martel was placing a high priority on her relationship with him. This may help to overcome any feelings that J may have that Ms Martel chose Mr P over him.
However, Ms Martel also needs to consider S’s well-being and her schooling. S, in my view, should not be left in Queensland for three months with Mr P while Ms Martel is in Melbourne. It may not be feasible for Ms Martel to spend three months in Melbourne, even if she wanted to. It may be more workable for Ms Martel, although more expensive, if she came to Melbourne for a week in each of the term 1 and term 2 school holidays, and the occasional long weekend. For this reason, I consider that the orders should be more flexible than the independent children’s lawyer has suggested.
The independent children’s lawyer has also suggested that the therapeutic counsellor determine when J may begin spending time with his mother in Queensland. In my view, that is in J’s best interests. It would also be helpful, in my view, if the independent children’s lawyer had a supervisory role in relation to the appointments for therapeutic counselling. Consequently, I consider that the independent children’s lawyer should not be discharged immediately, as he has suggested, but should remain involved with the family for a period of six months. Otherwise, the parties were in substantial agreement about the orders for the therapeutic counselling. There should also be liberty to apply, in case there are any issues about the mechanics of the orders for therapeutic counselling.
In my view, it is in J’s best interests that there be orders for therapeutic counselling as follows:
(a)as soon as practicable Ms Martel, Mr Martel and J attend upon Mr V, or another psychologist in Melbourne nominated by the independent children’s lawyer, at such times as are directed by the independent children’s lawyer, after consultation with the therapeutic counsellor, Ms Martel, Mr Martel and J, for therapeutic counselling concerning J's relationship with his mother and his reluctance to travel to Queensland;
(b)Ms Martel and Mr Martel shall bear equally the costs of the therapeutic counselling;
(c)the independent children’s lawyer shall forthwith forward to the therapeutic counsellor a copy of the family reports by Mr G dated 24 July 2007 and 31 January 2008 and a copy of these reasons for decision;
(d)Ms Martel and Mr Martel follow all lawful directions of the independent children’s lawyer and the therapeutic counsellor in relation to the therapeutic counselling; and
(e)the therapeutic counsellor shall be at liberty to discuss with Mr G, Ms Y and any of J’s nuclear or extended family members any matters relating to J’s welfare.
S
In relation to S, Ms Martel seeks orders that there be equal shared parental responsibility, S live with her mother and S spend time and communicate with her father at times to be agreed and subject to S’s wishes. I understand Mr Martel and the independent children’s lawyer to be in broad agreement with that with proposal. There will be orders accordingly.
Conclusion
It would clearly be in the best interests of J, as well as S and D, and everyone else involved, if Mr Martel and Ms Martel could establish a workable relationship for the future. To achieve that, it may be necessary for Mr Martel, Ms Martel and Mr P to all acknowledge the mistakes they have made in the past and to apologise to the relevant people. Hopefully, any apology that is made would be accepted with good grace.
I am very concerned that the estrangement between Mr P and his siblings appears to be being repeated in the next generation, with D being estranged from Ms Martel, and L and A, at least for some time, being estranged from each other. The strategy of cutting people off when differences arise is destructive of relationships, and provides a very poor role model for children. It is preferable to address differences respectfully and seek to resolve them fairly. I would urge those involved in the present case to seek to do that, or risk continuing fractures in their family in future generations.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 19 March 2008
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