Moose and Moose
[2007] FamCA 714
•12 July 2007
FAMILY COURT OF AUSTRALIA
| MOOSE & MOOSE | [2007] FamCA 714 |
| FAMILY LAW - CHILDREN – With whom child lives – Sole parental responsibility – with whom child spends time with – Supervision of spending time with – Contact centre |
| APPLICANT: | MRS MOOSE |
| RESPONDENT: | MR MOOSE |
| INDEPENDENT CHILDREN’S LAWYER: | MS LOVELL-JONES |
| FILE NUMBER: | BRF | 7403 | of | 2001 |
| DATE DELIVERED: | 12 July 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | BELL J |
| HEARING DATE: | 9 & 10 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Smart of Counsel |
| SOLICITOR FOR THE APPLICANT: | Jensens Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Shoebridge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Theobald of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Commission of New South Wales |
Orders
The children J and S both born in December 1997 live with the mother.
The mother have sole parental responsibility for the children.
The children are to spend time with the father under supervision at the L Contact Centre on the last Saturday or Sunday of each calendar month for a period of two (2) hours and to facilitate such time each party must:
i.Comply with any appointment made by the L Contact Centre;
ii.Comply with all reasonable rules of the L Contact Centre;
iii.Comply with all reasonable requests or directions of the staff of the L Contact Centre.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Moose and Moose
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF7403 of 2001
| MRS MOOSE |
Applicant
And
| MR MOOSE |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother for various orders relating to two children of her marriage to the respondent husband. I am mindful, of course, that in cases such as this it is a requirement that I give adequate reason in coming to my decision and I will be referring to various documents, which I will be partially including in my reasons for judgment and some which I will include totally.
But very briefly the history of the matter, and I emphasise that this is brief, the parties met in February 1999 or about that time. They married on 9 September 1995. Two children were born, J and S, twin sons, in December 1997. The mother had previously had an association whereby she had a son namely, B, who was born in October 1987. The parties separated in or about August of 1999.
RECORDED : NOT TRANSCRIBED
For a comparatively short period after separation the father saw a lot of the kiddies - and by "kiddies" I refer to his twins - being at the former matrimonial home on frequent occasions.
Thereafter there have been a litany, if I might use that word, of applications to this Court. I think there has been at least two applications for contravention, one of which the mother has been convicted of and was sentenced to 80 hours community service but such sentence was suspended.
I am of the opinion that in all probability there has been before me at least one contravention, which has not even been mentioned by any of the legal practitioners in this case, and consequently I assume that that matter is no longer for my determination. If it is for my determination it means that I should not have embarked upon the hearing in relation to the substantive matter, and that being the matter in relation to either the father or the mother having the residence of the children and the opposite party spending time with the children. I make that quite clear in case this matter goes to another place.
It concerns me intensely that I am not fully informed and have not been adequately informed as to the existence of these contravention applications. I refer, in particular, to the one before Barry J which I understand was adjourned for further mention, it may have been, when this matter came on for hearing; it may not have. No one has mentioned it to me and it really irritates me that this Court is put in the invidious position of having to do the work for legal practitioners. I am not going to do it. The matter that was before me is the matter of the residence of the children and the spending time with and I am doing that.
If, in fact, there is one, two, three or more contraventions still in existence, they can fall into a black hole as far as I am concerned. I am not going to do the work for legal advisors. I am not paid to do so. I am paid to sit here, listen to matters, adjudicate upon it and give a decision, notwithstanding the decision will be unacceptable to one or either of the parties before me. As I have always said in this Court it appears to me that we are always 50 per cent wrong and never 50 per cent right. However that has got nothing to do with this case, the matters and complaints in relation to the contravention have. And I sincerely hope the respective legal advisors will take that to heart and come to Court better briefed.
I have, fortunately, had put before me a family report dated 19 December 2006 by one Ms P. I have found great assistance in this report and it has convinced me that insofar as I am concerned, my opinion and my judgment of this case is the correct one. It is necessary as I have said, and I emphasise this, for me to give adequate reasons in relation to my decision. I would like to say in passing however that - and I will track this down - a Judge in the Court of Appeal on an appeal from a High Court Trial Judge in England of, I think, some 20 or 30 years experience, said that it ill-behoves anybody to come to Court and submit that a person who has had 20 to 30 years experience as a trial Judge has not, by inference, found every necessary fact to support his judgment. But that, of course, is not a matter for me to be persuaded by at this stage. But I must find that authority.
I am mindful of the provisions of the amendments to the former Act and that there is a presumption that there should be shared residence, if I may use that word, of the children. In fact, it is shared parental responsibility and also residence. I have to find that unless I am satisfied of the matters that are referred to in the Act, in particular the question of domestic violence and/or the overall finding, whether it is in the best interests of the children. If I may put it this way, I am more than satisfied as a result of the allegations which have been particularised in the evidence of Ms P contained in her report of 19 December 2006, exhibits 1 and 2. I am more satisfied as a result of the evidence contained in those documents, which are files from various departments, that no order could be made in this case for shared parental responsibility and/or residence.
In particular, I am of the opinion that where it is said in the material that the children believe - as I say the "children" and I emphasise the "children" - believe that they have been sexually abused would, in itself, be sufficient for me to find that the presumption has been discharged and I discharge it. Therefore as far as I am concerned the matter is open.
But I, naturally of course, have to consider the provisions of s 66C which indicates that the Court must take into consideration those numerous sub‑sections of that section. I am also mindful of statements made by the Court of Appeal wherein they have indicated that it is not necessary for the Judge to go through every one of the sub-sections but to emphasise the ones which persuade him that his judgement is necessary. However because it is necessary for me to give adequate reasons, I will go through every one seriatim.
Insofar as s 66CC(2)(a) is concerned I am more than aware that a meaningful relationship between both of the children's parents and the children is of great advantage to the children of any relationship. Regrettably in this case it cannot be said that there is a meaningful relationship with both of the children's parents because of the matters that I have briefly touched upon and which I will now incorporate as being particularised in exhibits 1 and 2. The children have, over a period of five years or thereabouts - they are only 9 now and will be 10 in December - have complained to various people on a consistent basis of sexual abuse and emotional abuse and physical abuse upon their person by their father. Consequently I do not believe that, on that fact alone, there could be a meaningful relationship where the children - and I emphasise that once again - the "children" - believe that they have been assaulted or abused by the father.
Naturally, of course, what I have touched upon comes within the province of s 66CC(2)(b) wherein it is necessary to protect the child, or children in this case, from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. There has been some allegations of family violence during the period of cohabitation. But, in particular - and this is a question of going to credit - the mother has indicated that she looked upon the father as being uncaring. The father denies that.
It is necessary, unfortunately, in a case such as this, for me to determine the question of credit. I do not think, notwithstanding the findings of former, Fogarty J, that It is essential to make findings of credit. I believe that this matter is such a sensitive matter, that is the question of residence of a child, that parties should not have their credit destroyed by a Judge who, perhaps, does not know as much as he should, he being, for instance insofar as contraventions are concerned, not fully briefed on the matter. But he should not hop into parties and make them look foolish or stupid in their own eyes. There are to be continuous relationships between the parties because of their children and I do not believe that one should be sent from this Court with the appellation of being a liar or anything of that nature.
I, also, am generally of the belief, after having 31 years experience on this Bench, that parties generally do not lie intentionally. What they tend to do is they emphasise their good sides but perhaps to extremes, and denigrate the other side and emphasise the bad points of the other side to extremes. I do not, as I said, believe that they intentionally lie, although I have found some witnesses, in my 31 years experience on this Bench, have lied and purposely lied. They went so close to be charged, but unfortunately I could not bring myself within the required standard. This is not the case here.
But, for instance, I do accept the evidence of the mother where it differs from that the father because, in particular, of one thing during the time that she was pregnant with twins, the parties initially slept in the same bed together. But, the father was of the opinion that because - I think these are his own words - because he worked and the mother worked and they had children, the mother's uncomfortableness, which caused her to talk a lot, was too much for him and as a result thereof he removed himself from the matrimonial bedroom and took up sleeping on a divan, I think it was or something of that nature.
He has a bad back, as has B, to whom I have already referred. B was sleeping in a double orthopaedic bed and the father, himself, slept on what appears to be a somewhat uncomfortable divan or sofa lounge or something of that nature. He, on occasions, slept in the same bed as B. And the mother's counsel attempted, partially, to suggest there may be something sinister in this because the father massaged B, who has a bad back. And I think there was an inference that they were hoping me to draw that this showed that he was of either a homosexual or paedophilic persuasion. I make it quite clear I do not accept there was anything sinister in what the father was doing in relation to B.
I would be surprised that, in fact, he supplied him with Scotch, as B has said on frequent occasions. Scotch was, I think I am able to take judicial notice of the fact, a not inexpensive drink and I would have thought the father would be foolish to ply a young boy with Scotch as frequently as has been indicated by B. He may have said something, "Here have a Scotch" and it was Gingerale or something of that nature. But I am satisfied he did not ply him with Scotch either, for an inference which may have been drawn that he wished to make him semicomatose so he could have his way with him. I do not accept that at all.
As I have said, subsequent to separation there have been a litany of applications to this Court; there have been various orders made; there have been allegations; the orders have not been complied with - and I refer to the case management document, the outline of facts and argument of the independent children's lawyer to set out the plethora of cases that have come before.
The father complains bitterly that he has not spent time with his children of a nature that would advance the welfare, not only of himself but particularly the welfare of his children as they get older. But I have that need to protect them from physical or psychological harm. The physical harm has been set out in the documents to which I have referred, that is the family report exhibits 1 and 2. Further, the psychological harm is particularly emphasised in the relationship to Ms P’s report, and I refer to paragraphs 89 where she, herself, is concerned about the psychological harm which has been and will be perpetrated upon the children by what she generally says is the inability of both parents to submerge their own feelings and advance the welfare of the children.
The questions which initially arises are these - insofar as sub-s (a) and (b) are concerned the questions are really three in number:
(1)Did the sexual abuse take place?
(2) If no, is there a fear that sexual abuse could take place? And
(3) If it has not taken place:
a)is the mother endeavouring to alienate the affections of the father; or
b) is it such that the mother believes that such sexual abuse has taken place, notwithstanding there is not sufficient evidence to support such a finding.
Insofar as (a) is concerned the sexual abuse has to have been developed over a comparatively short period, as I find, subsequent to separation that I have referred to. The father has not had that much spending time with his children. He has had a period, as I was quite properly corrected by Theobald of counsel, it was towards the end of 2004 and for most of 2005 wherein he had unsupervised contact with the boys. Since that time he has had six or thereabouts, unsupervised times with the boys. One would have thought that this comparatively short period since separation, which was in 1999 was it not, when the boys were some 20 months old, would have been somewhat intensive in nature. And whilst I do not wish to go into it in depth, I have grave concerns as to any Court being satisfied, on the evidence that has been put before me, notwithstanding the statements of the boys, that it in fact took place.
Secondly, is there an unacceptable risk? There is not an unacceptable risk, I feel, of the father sexually abusing the boys. He does act in a most inappropriate manner with the boys. The boys - I think S worse than J - suffers from speech impediment, and he does talk to them in very baby-ish tones, notwithstanding the children are growing up. The last period was towards the end of 2006. And it has stopped, according to the father, since he received a letter from the independent children's lawyer which was dated in December - - -
RECORDED : NOT TRANSCRIBED
- - - last year. I do not wish to repeat them in my reasons, but they were in the type of language that would not have assisted in the advancement of the speech deficit, the difficulty that the boys are suffering from.
He also shows, and I believe that this is some psychological problem for the boys, little caring for them insofar as child support is concerned. He has been ordered to pay a comparatively minimal amount and has not done so, or if he has, he is paying $30 or $20 per calendar month. And yet he sees fit to purchase a motor bike for the boys for their birthday in December 2006 which cost him $800. Some little time before, I think 12 months before or at the maximum two years before, he purchased another bike, a pee wee 50 cc for some $500. He has not complied with child support. He has not, as far as I am concerned, assisted in the maintenance of the children, notwithstanding he may believe that the mother will spend it upon herself. There is no evidence to that effect.
I must say in passing that I am impressed with the mother. I think she will do everything she possibly can. She gave me the impression of being a lioness protecting her cubs to support her children.
I am sorry - the child support - I was wrong it was $150 or thereabouts per calendar month. He is employed as a boat builder or boat painter at the Gold Coast. He has just put his brother on as an extra employee and it appears to me, notwithstanding there is no evidence that he is unable to afford the child support because he is funding his Court cases here, it does not gel when some little time ago he goes off and enrols the boys in private medical cover, which is very good health care, for some $150 per calendar month, but then he does not tell the mother that, in fact, the children are covered for private health care. As a result thereof it could be that the mother was put in the position of having to expend considerable amounts of money, which she has done in relation to one of the boys' orthodontic problems, up to $4000, she pays it out and does not know that she may recover something from the health care. He concedes that that was a mistake. I do not believe that he is thinking of his children in relation to that as much as he should, rather he is endeavouring to take it out on the mother.
I touched upon the two. I am still in the second, the children clearly believe that they have been sexually abused. I think I touched on this before. That is unfortunate. I think the father concedes they might think that, but he definitely says that there is no reason why they should. He points to the mother brainwashing the children. There is no evidence that she is doing that, no acceptable evidence and no evidence upon which I could find that she is doing that. The children have got this idea from somewhere. And it may be that what they gave done, and this has happened on frequent occasions before, but I do not take it into consideration because there is no evidence before me. Children who are subject to a most unfortunate relationship between their separated parents make a choice. They decide whom they will attach themselves to and will do everything in their own little way to ensure that the relationship between the person that they have accepted as their primary care giver and themselves will not in any way be affected and they maximise the relationship between, in this case, the mother and themselves.
I make it quite clear the mother has been their primary caregiver all their life and it would be extremely difficult, I would have thought, for the children to, unless there was very good reason and there is not, ignore that relationship and I believe that they are endeavouring to ensure that the relationship between themselves at this young age, and their mother, is not going to be in any way affected by their father.
The next battle which arises is if I am satisfied:
a)that there is no abuse; and
b)that there is no likelihood or risk of it coming about,
what happens next? As I said there are two things: I touched upon the fact the boys believe it; secondly I am satisfied the mother believes. Now we get into the question of Ryan and Close as to whether the mother, notwithstanding the fact there is no, or no sufficient, evidence upon which she could come to the conclusion that this has taken place, and time after time she has ceased, as it was, in those days, contact because she alleges - she has made, at least, I think, seven complaints to respective child protection authorities. She is of the belief that it took place. And as I have said it does not matter whether in fact there is sufficient evidence or not, these people are somewhat similar to what is known as hysterics. But notwithstanding there is no, or no sufficient, evidence, they genuinely - and I am quite satisfied that the mother does genuinely - believe that these children have been assaulted. Her belief is that she wishes these children to be protected. Naturally, of course, so does the father. She sees the only way that these children could be protected is by their not having spending time with their father at all.
On the contrary, however, it is quite clear on the evidence before me - and now I am moving on to s 60CC(3)(b), unless of course it is not patently clearly which sub-section I am referring to - the relationship between the boys and their father is, as he has said and is supported by reports from the local contact centre - it should not be referred to as a contact centre it should be spending time with centre, rather than contact centre because it no longer exists in the Family Law Act the word "contact" - they get on well with their father when they are at the contact centre. Why? It is because, in my opinion, they feel safe, that they do not feel as though they would, in any way, be interfered with by their father because they have the protection of the contact centre.
The mother has grudgingly, I would say, conceded that the children should have contact with their father so long as it is at a contact centre. She is concerned that such supervised contact will lead to unsupervised contact and that is her great concern. She has this fear which, to an outsider, to a person standing on the sidelines, to the man on the bus, may seem wrong. But she has it and I believe it is genuine. She must realise that, in fact, it will not move from supervised contact to unsupervised contact without either:
a)her consent; or
b)the approval of the Court,
and I would sincerely hope that that is conveyed to her by the legal advisors.
Insofar as 60CC(3)(c) is concerned I believe that there is little chance of the mother facilitating and encouraging close and continuing relationship between the child and the other parent. And I have touched upon the reason for that, it is her belief that the children have been sexually abused by their father and that she wishes to protect them.
Insofar as 60CC(3)(d) is concerned, the likely effect in the changes of the child's circumstances and including the likely effect on any separation from his or her parent, I make it quite clear that the application of the father, wherein he submits that the interests of the children require their being removed from the mother and placed with him, that the mother have supervised contact for a considerable period and that the children undergo counselling is, with respect to the father, farcical. There is no way, on the evidence - and I can only act on evidence - that I could be convinced, on the evidence before me that these children should be removed from their mother. I would think that I would not be doing my job properly if I did so. The children would suffer enormous trauma. There is already evidence that strong separation anxiety - more so with S than with J and that is referred to by the kindergarten director, and this is referred to in exhibits 1 or 2. I could never do it.
I make it quite clear that the children are not from Aboriginal or Torres Strait extraction as a result thereof. I do not direct my mind to it.
I have touched upon the attitude to the children of the parties, but particularly the father's where I used the example of his using baby-talk to children who are 8 years of age. There has been, on the evidence, family violence towards the child. There has been - I am not finding that that has taken place between the father and the children.
Ryan and Close is a principle which was enunciated some considerable years ago in a single judgment. It was for a considerable period, as far as I am concerned, overlooked. It is a particularly important principle applicable in this case and if I may just generalise upon it, it is that if, in fact, I am satisfied that a belief of - as it was in those days - the custodial parents as to the safety of the children is such, notwithstanding there may be no evidence as I have touched upon before, such that she cannot comfortably comply with any order of the Court, or that such compliance will cause her to be less of a parent, I could not make an order that will increase such a risk. In this case I am satisfied that she comes within the principle of Ryan and Close, though that is not necessary for my decision.
I make it quite clear, however, that the children do have a relationship with their father and such relationship, in my opinion, should not be severed, should not be cut off, should be allowed to develop in a manner which will enable them, as they get older, to be able to have more and more time with their father and look upon him as a person who can advance their welfare. As a result therefore I am persuaded that there should be some time spent by the father with the children in accordance with the provisions of Ms P's report. I think that once every two months is not enough. I think it should be once a month. I recognise that, of course, there is a comparatively small tyranny of distance, with the father living at U and the mother living in Northern New South Wales. He has seen fit to be able to purchase motor bikes for his sons.
I say in passing this is another sign of his total lack of caring for the children, the children have seen that new pee wee bike, the $800 bike on one occasion at the contact centre - and I use "contact centre" advisingly. And since then they have not seen it again. I am quite satisfied that it has been indicated to the children by him that they will get the bike when they get to live with him. I am quite satisfied of that and I think it is absolutely appalling. It is like an Indian-giver.
However that is something that I have taken into consideration.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
Currently two hours, that is regrettable. But it is to take place there.
ORDER DELIVERED
I will call upon the independent children's lawyer to put before me a draft order.
RECORDED : NOT TRANSCRIBED
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell
Associate:
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