Moreau and Brennan - [2007] FMCAfam 689

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOREAU & BRENNAN

[2007] FMCAfam 689

FAMILY LAW – Child aged 10 – interim arrangements for child to spend time with father – no relationship between father and child – observed interaction between father and child went poorly – whether order for supervised contact should be made or whether father’s application should be dismissed.

Applicant:

MR MOREAU

Respondent:

MS BRENNAN

File number:

ADC 3178 of 2007

Judgment of:

Brown FM

Hearing date:

20 August 2007

Date of last submission:

20 August 2007

Delivered at:

Adelaide

Delivered on:

20 August 2007

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Andrew Hill & Co

Counsel for the Respondent:

Ms Broadbent

Solicitors for the Respondent:

Moore Law

ORDERS

Each party within seven days register with the Axxx Children’s Contact Service and thereafter the father spend time with the child B born in December 1996 supervised by the Director of the Axxx Children’s Contact Service at times to be nominated by the Director and to be no more than two hours per fortnight.
This matter be listed for final hearing before Federal Magistrate Brown on 8 February 2008 at 10.00am NOTING 1 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 January 2008.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3178 of 2007

MR MOREAU

Applicant

And

MS BRENNAN

Respondent

REASONS FOR JUDGMENT

This case came before me in a duty list. It was appropriate that the reasons for judgment be delivered orally. At the request of the solicitors for the mother, the reasons for judgment have been transcribed.
The matter of Moreau and Brennan comes before me today. The applicant in the proceedings is Mr Moreau and the respondent is

Ms Brennan. The parties are the parents of a child, B, who was born in December 1996. So B is a few months short of her eleventh birthday.
The father commenced these proceedings some time ago now, on 17 November 2006. On a final basis he seeks orders that B live in a shared care arrangement with him and the mother. More importantly, on an interim basis, he seeks orders that the child spend time with him from 10 o'clock on Saturday until 7 pm the following Sunday evening. I am dealing with the interim aspect of the case at this stage.
I think legal proceedings often encourage parties to make the most ambitious possible claim that they can. I think sometimes lawyers forget that people who are involved in the applications lawyers prepare, read those applications and are shocked and frightened by them, whereas lawyers just regard it as another ambit claim.
In any event, it is common ground between the parties that, for several reasons, Mr Moreau has spent little, if any time, with B over the last few years. It is very difficult, if not impossible, to see how the arrangement that he wishes, on a final basis, can be brought into effect. I suspect that, from Ms Brennan's point of view, she is upset and worried about his application.
In any event the proceedings have been on foot for almost a year now. They came before Senior Registrar Kelly, as she then was, on 1 December 2006 and at that stage, given that B had not seen her father for some time, it was agreed that there should be a family assessment to investigate how B's relationship with her father might be restored, if appropriate.
Ultimately a report was prepared by Dr Bollard; he did that in June of this year. Dr Bollard is a very experienced child psychologist. Dr Bollard spoke with both the mother and the father, in depth. More importantly, he spoke with B herself and he observed B with firstly her mother and then her father.
The parties themselves have a poor relationship with one another. From the mother's point of view it is her belief that the father has been essentially disinterested in B ever since she was born, really. As a result, she is very suspicious of his application now. It is also her view that the father has a violent and antisocial disposition and in the past has killed some of B's pets, out of spite for her although she is not able to definitively prove these very serious allegations.
The father has strong views about the mother and about her background, of which he disapproves. It is his view that the mother, for reasons of her own, is determined to ensure that there is no relationship between B and him and so has endeavoured to paint him in as negative a light as possible with B.
All those matters make this a particularly difficult case to deal with. It is, I think, common ground between the parties that there is, as I say, little positive relationship between B and her father at the present time. The two do not know each other. Although the mother has said that she, in an ideal world, would want B to know her father, it is difficult to see how things can easily be advanced at this point in terms of B’s relationship with her father.
B was interviewed by Dr Bollard and when asked by Dr Bollard why the two were meeting she apparently said to him that "Daddy's trying to take me away from mummy." She, to Dr Bollard, was extremely negative in her views about her father and it seems to be the case that B believes that it is her father who killed a number of her pets, when she was younger.
It is incontrovertible, I think, that the mother has undertaken all of B's care responsibilities, up to this stage. Dr Bollard speaks, in his report, of B being a bright and chirpy child, in the company of her mother and as being a comfortable and relaxed child in her mother's presence. All of which demonstrate that the two have a close emotional bond.

Dr Bollard was complimentary of his impressions of what he described as the mother's excellent parenting skills.
It is I think clear from the report that the interaction between B and her father did not go particularly well. Ms Dickson, who appears for the father points to the obvious fact that B was coming to see her father in the unusual circumstances of a psychologist's rooms. She was obviously in a heightened emotional state and was aware, but perhaps did not fully comprehend the significance of the meeting, not only for her father but also for her mother. In any event, she was upset by the meeting, and, from Dr Bollard's perspective, Mr Moreau was unsuccessful in breaking the ice between him and B in these difficult circumstances.
In the preamble to his report Dr Bollard points out that family assessments are a snapshot. That is obviously the case. This was a brief moment in B's life, albeit one likely to be of great significance to her and one which was emotionally charged. Accordingly, it cannot always be guaranteed that every future interaction between B and her father will be similarly unsuccessful and stressful for her.
In any event, in these difficult circumstances, Dr Bollard put forward three options. The first one was that the application of the father simply be dismissed and that B and Ms Brennan be allowed to get on with their lives, free of Mr Moreau. The second option was that B continue to live with her mother and, if in future, she wanted to see her father, for whatever reason that may be - curiosity about him being the most obvious one – that that contact should happen.
The third option is perhaps the most controversial and the most upsetting, from the mother's point of view. That is, she be compelled to take B to the Axxx Children's Contact Service and there to be a supervised period of time between B and her father, which will be observed and a report written about it.
It is that option which the father wishes me to put into place today. His counsel, Ms Dickson, describes it as a cautious response to the difficulty. It is likely that the children's contact service will be able to accommodate B and Mr Moreau for about two hours a fortnight, which obviously is a fairly short period of time.
It is the mother's position that I should dismiss the application the father brings. In her affidavit she deposes as to the problems B has had and how upset she has been since she saw her father at Dr Bollard's rooms.
I have already alluded briefly to the legal principles I have to take into account. One of the objects of the part of the Family Law Act which deals with children is to ensure that children have the benefit of both of their parents having a meaningful involvement in their children's lives. It is a right that the children have to know both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
As I remarked to Ms Broadbent, it is a significant aspect of being human, I think, to know who your parents are. To know where one came from. This is a very difficult case. Whatever order I make today I have to be satisfied it is in B's best interests. I have to balance competing applications.
In determining what is the outcome likely to be in her best interests I have to consider two primary considerations, which are sometimes difficult to reconcile. They are set out in section 60CC(2) of the Family Law Act. Firstly, I have to consider the benefit of B having a meaningful relationship with both of her parents. I also have to consider the need to protect her from physical or psychological harm.
Clearly it is the mother's position that it will be too traumatic for B to be taken to Axxx. From the father's point of view, if I do not make any orders at this stage, it will mean that the possibility of B having a meaningful relationship with him and indeed with other members of her paternal family, and knowing about her paternal history, will be very much reduced.
I think in this case that the proposal the father puts forward will balance these competing considerations, in a way which will not have unacceptable implications for B's best interests. As I said to Ms Broadbent, I accept it is going to be difficult for B to go to the Contact Centre but there are things that the mother can do to reassure B about it. B will not be alone with Mr Moreau; others will be there. Mr Moreau will not be able to take B away from the children's contact centre. The period of each visit will be fairly brief. The visits will be interspersed. All those things can be told to B to reassure her
I think at this stage the considerations of her entitlement to know her father should be given some significance and I think I have to consider the benefit of her having a meaningful relationship with both of her parents at this stage as being important. I also think it is likely to be helpful that the matter be advanced prior to it coming on for final hearing, which will be in February of next year.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 20 August 2007