Morena and Estella

[2013] FamCA 1045

FAMILY COURT OF AUSTRALIA

MORENA & ESTELLA

[2013] FamCA 1045

FAMILY LAW – CHILDREN – with whom the children live – parental responsibility – where father seeks orders for the three subject children to live with him and for the parties to have equal shared parental responsibility – where the mother seeks orders for two of the subject children to live with her – where father alleges that mother is unable to adequately care for the children – finding of domestic violence – s 60CC considerations – MRR v GR – views of the child – mother and father to have equal shared parental responsibility for the child who is to live in the primary care of the father – mother to have sole parental responsibility for the children who are to live in the primary care of the mother – one of the subject children to live with the mother – two of the subject children to live with the father – mother to spend time with the two subject children who shall not live in her primary care on alternate weekends and half of school holidays – father to spend time with the subject child who shall not live in his primary care on alternate weekends and half of school holidays – orders to ensure that the subject children all spend time together during weekend contact.

APPLICANT: Ms Morena

RESPONDENT: Ms Estella

INDEPENDENT CHILDREN’S LAWYER: Ms D. Awyzio, Solicitor

FILE NUMBER: BRC 10237 of 2007

DATE DELIVERED: 11 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 9 December to 11 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: The Respondent Husband appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Linklater-Steele of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER DA Family Lawyers

Orders

IT IS ORDERED:

1. That all previous Parenting Orders be discharged.

1. That the child, N born on … 2000, shall live with the Father.

1. That the child, N shall spend time with the Mother at all times as agreed between the parents, and subject to the child’s wishes, but not less than:

   a.   each alternate weekend from after school on Friday until 5.30 pm on Sunday, to be the same weekend that the children, E born … 2001 and M born … 2006, are in the Mother’s care; and

   b.   half of the school holiday periods, to be the same time that the children E and M are in the Mother’s care.

1. On each Thursday prior to the weekend that the child, N is due to spend time with the Mother, the Father will encourage N to spend time with the Mother that coming weekend, by having a positive discussion with N about the upcoming weekend.

1. That the Mother will only attend to collect the child, N for the purpose of spending time with  him in the event that N sends an SMS text message to the Mother indicating his desire to spend time with her.

1. That the Father do all acts and things necessary to ensure that the child, N has access to a mobile telephone for the purposes of sending an SMS message to the Mother.

Parental Responsibility

1. That the Mother and Father have equal shared parental responsibility for the “major long term issues” of the child, N born on … 2000, as defined in the Family Law Act1975 (as amended).

1. That the Mother shall have sole parental responsibility for the “major long term issues” of the children, E born on … 2001 and M born on … 2006, as defined in the Family Law Act 1975 (as amended).

1. That the parents each have, during all such times that the children are in their respective care, sole parental responsibility in respect of issues that are not “major long term issues”.

Where the children shall live/with whom they shall spend time

1. That the children, E and M shall live with the Mother.

1. That pursuant to section 67Q(f) of the Family Law Act 1975 the Father shall be prohibited from again removing or taking possession of the children, E and M save for as set out in these Orders.

1. That the children, E and M shall spend time and communicate with the Father as follows:

   a.   during school terms, from after school on Friday until 5:30 pm on Sunday each alternate weekend commencing on 31 January 2014;

   b.   from 9:00 am to 5:00 pm on Father’s Day;

   c.   from 10:00 am on Good Friday to 5:00 pm on Easter Saturday;

   d.   for the Christmas period as follows:

i.in odd numbered years, from 2:00 pm on Christmas Day to 10:00 am on Boxing Day;

ii.

in even numbered years, from 10:00 am on Christmas Eve to

2:00 pm on Christmas Day;

e.   for the first half of all Queensland gazetted school holiday periods with such time to commence from after school on the last day of the school term and conclude at 5:00 pm on the Saturday which falls half way during the school holidays; and

f.   by telephone between 6:30 pm and 7:30 pm on Tuesday and with the Father to initiate the telephone call to the Mother’s mobile telephone.

1. That following school holiday periods the Father’s alternate weekend time with E and M as per Order 12(a) shall recommence from after school on the first Friday of the school term and continue each alternate week thereafter.

1. That notwithstanding Order 12 hereof, E and M shall spend time with the Mother as follows:

   a.   from 9:00 am until 5:00 pm on Mother’s Day;

   b.   from 5:00 pm on Easter Saturday to 5:00 pm on Easter Monday;

   c.   for the Christmas period as follows:

i.in odd numbered years from 10:00 am on Christmas Eve to 2:00 pm on Christmas Day;

ii.in even numbered years from 2:00pm on Christmas Day to 10:00 am on Boxing Day; and

d.   for the second half of all Queensland gazetted school holidays with such time to commence at 5:00 pm on the Saturday which falls half way during the school holidays and conclude at 9:00 am on the first day of the school term.

1. That following the children, E and M spending time with the Mother the children’s time with the Father shall resume on the next scheduled occasion in accordance with the usual arrangements pursuant to Order 12.

1. That the child, N spend time with the Mother at all times as agreed between the parents, subject to the child’s wishes, but not less than:

   a.   on N’s birthday;

   b.   on the following special occasions when E and M are spending time with the Mother:

   i.on Mother’s Day;

   ii.for the Easter period; and

   iii.for the Christmas period.

1. That the parent who is not spending time with either E or M on their birthdays shall be at liberty to spend telephone time with the child, with the parent not spending time to place the call to the other parent’s mobile telephone between 5:00 pm and 6:00 pm if a school day and between 10:00 am and 11:00 am if a non-school day.

1. That the parents shall notify the other parent as soon as possible if they are unable to spend time with the children in accordance with these Orders.

Changeovers

1. That changeovers shall occur as follows:

   a.   at school when they are due to occur at school; and

   b.   at all other times at the McDonald’s at the C Suburb Shopping Centre.

2. That the parents shall be at liberty to arrange for a third person who is known to the children to attend at changeover on their behalf provided that they give advance notice to the other parent in writing (including by text message).

Specific Issues

1. That the parents be, and hereby are, restrained from:

   a.   denigrating the other parent or that parent’s partner or spouse either directly to or in the presence or hearing of the children;

   b.   discussing any court proceedings involving the parents or any parenting issues in dispute between the parents either with or in the presence or hearing of the children;

   c.   physically disciplining the children; and

   d.   allowing any other person to do any of the above with the parents to promptly remove the children from the presence of the person who is doing so.

1. That the parents shall keep each other informed of their current residential address, postal address and mobile telephone number.

1. That the Mother shall be permitted to communicate with the Father about matters concerning the children in the G language.

1. That the Father shall be permitted to communicate with the Mother about matters concerning the children in the G language.

1. That the parent responsible for the care of the children is to contact the other parent by telephone (including by text message) as soon as practicable if the children:

   a.   become seriously ill;

   b.   are hospitalised; or

   c.   are involved in an accident; and

   i.are to inform the other parent of the name and address of any medical doctor and treating facility.

1. That by these Orders, the parents irrevocably authorise the children’s treating medical practitioner/s and educational provider/s to provide information about the children to both parents, with the parent making the request for such information to be responsible for any costs incurred.

Family Dispute Resolution

1. That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these Orders, before making any further application to a court the parents shall either:

   a.   attend counselling or mediation with an organisation recognised under the Family Law Act1975 or by the Commonwealth Attorney-General; or

   b. participate in family dispute resolution with a Family Relationship Centre, Legal Aid Queensland Family Dispute Resolution Conference or a person authorised under section 10G of the Family Law Act1975.

1. That in the event that the parents participate in further counselling, mediation or family dispute resolution then they shall be at liberty to provide a copy of the Family Reports by Mr Paul J to the counsellor, mediator, Conference Organiser or Family Dispute Resolution Practitioner.

1. The Independent Children’s Lawyer be discharged.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an Order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10237 of 2007

Ms Morena

Applicant

And

Mr Estella

Respondent

REASONS FOR JUDGMENT

1. This matter commenced as early ago as 2007 and as a result of an application made, an order was made by the then Wilson FM who has since resigned, and that order was made on 1 November 2007.  It refers to the children, the result of a relationship between the applicant mother and – it referred at that time to an application by the applicant father against the respondent mother in relation to parental responsibility of three children.  The three children at that time being N, who was born in 2000, E, born in 2001 and M, born in 2006. 

2. This order was made by consent and I read it and incorporate it in this my reasons for judgment.  Since that time, the parties have complied with that order up until towards the end of 2011, when the father, without any excuse, as far as I can see, retained the children from contact that he was having and kept the children away from the mother for a period of approximately two months.  He removed the children from their then schools and placed them in another school which was called H School, as I said for a period of about two months which cost him $2000 and it has fallen from him that he has no money and as a result thereof he is still paying off that amount.

3. Two orders were made subsequent to that which returned the children to the father and made further orders in relation to contact.  The mother instituted another application and that application is the one that is before me today.  The orders as sought by the mother are set out in her application, but also in a summary of argument document which was filed on 5 December 2013 in which she sets out the orders which she seeks and I refer to and incorporate these in my reasons for judgment commencing at page 1 of the document headed summary of argument.

4. The respondent, the father to this application, has sought orders that there be, in effect, joint parental responsibility for the three children.  That the children reside with him and that the mother has certain contact on alternate weekends and things of that nature.  I refer to his response.

5. However, as a result of what took place, particularly as a result of Mr J’s evidence, the mother has withdrawn her application in relation to N who is now 14 years of age and is willing for N to live with his father and she seeks certain orders in relation to that and that is a document which has been placed before me which has not been identified other than by a document which was signed by the mother and an interpreter, a G Language interpreter, the mother being not completely literate in English, but the interpreter has, as I have said, signed the draft and put before me and I would indicate that that is now marked annexure C so we do not lose it.

6. I discussed this matter with the respondent whose English is not the best, but he continued and persevered and he agrees with all of it, except, if my memory serves me correctly, number 2.4 and number 2.3.  I will make orders in relation to N at a later stage.  Regrettably it is no longer by consent.  The issues in this case are, in effect, comparatively simple.  The parties commenced a relationship in either Country I or Country A in or about 1999.  They came to Australia in about 2005 and shortly thereafter they separated under the one roof and subsequently separated permanently in 2006.

7. Since that time they have lived in Australia, particularly in the southern suburbs of Brisbane and the parties have gone their separate ways.  The father, if I may say, is the father of at least, 10 children, three of which being the children in dispute here.  He has also accepted the paternity of two children of his present wife and there are another two or three wandering around, no, another five, wandering around in Brisbane somewhere or other.  He alleges that the children should live with him that is the children to which I have hereinbefore referred, because the mother is cruel to them. He alleges the Mother does not adequately look after them and that these have been particularised in Mr J’s reports, the first of which being dated, being filed on 23 August 2012 and the second on 17 April 2013.  I refer to paragraph 3.4 in his first report the allegations made by the father and 3.2 in the second report.

8. Each of these matters has been ventilated in full by the respondent father and I will say briefly that I am more than satisfied, taking into consideration not only the evidence of the applicant mother, the lack of cross-examination by the father in relation to his allegations, he seems to be more interested in what her maiden was or what her name was in G Language and where the children were born.  It appears at the last gasp he put before me a birth certificate of both E and N, two of the children who were born in Africa, which indicate that they were born in Country I.

9. I do not know why he was cross-examining the wife very strongly on the fact that she should produce the birth certificates when he had them in his possession at all times as far as I can understand.  I found Mr J’ reports of great assistance to me.  He was the one who indicated to me the difficulty with N.  N ran away from his mother in around about September, I think, was it not?  He was found at about 12 o’clock at night by the police and the police took him back to his mother.  It is alleged by the father the child ran away from the mother because she had been cruel to him.  She had been abusive to him.  She had beaten him unmercifully.  She had hit him with a broom handle.

10. The police acting, one would have thought in their proper duties, did not, in any way, were not in any way as it appears on the evidence before me and the police reports concerned that the child had, in fact, suffered any severe abuse and returned the child to the mother.  Approximately a week later, the child, when going on contact with the father, refused to return.  Shortly thereafter, I think some 10 days thereafter, the father left the child with what we understand is his present wife, we have seen or heard nothing from her, his present wife and he went to Africa for a month.

11. I would have thought this would have shown very little concern for the welfare of this child and also I would have thought that if, in fact, he was going to suggest to me that this was fair and proper in all the circumstances, he would have put before me his present wife who is, as I understand, the mother of either two children of him or one of him and one of some other person.  He gave evidence that this lady in the early stages, subsequent to being delivered of the child, as somewhat ill, but she is all right now.  She has been in Australia for a period of about 18 months.  His last child is 11 months of age or thereabouts according to his evidence.

12. I was disappointed in his view there that it was more important for him to go to Africa notwithstanding the fact it may have been his mother’s funeral than to adequately look after his child whom he said had been severely beaten by the wife.  I do not accept his evidence thereby.  I do accept the evidence of N as he said to Mr J that his mother, on one occasion, had slapped him or hit him with her hand on the arm.  There is no evidence before me, particularly from Mr J, who was a disinterested expert; there is no evidence before me that any of these children have, in any way, been abused by the mother.

13. People will say that a slapping is an assault and it should not be other than frowned upon, that may be the case, but the evidence of the father and his whole case, either this mother is not a fit and proper person to look after these children whom she has been the primary care giver of since birth and that was for some period in a refugee camp in Africa and for the rest of the time here in Australia.  He has indicated to me that he is unemployed at this stage, that he is studying, I think he said business on one account, but I see in another account by I think what he said to Mr J that he is in marketing. 

14. So I do not know what he is doing, but he does say that he works and studies until at least 4 o’clock each day.  There is quite clearly before me evidence of domestic violence.  Not only is there evidence of domestic violence from the father to the mother, but it appears to me as though there has been some domestic violence by the mother to the father.  There are two temporary AVOs in existence which expire or are returnable on 18 December, anyway about mid-December and that matter will, of course, be prosecuted properly in the State Magistrates Court.

15. As I have said, I do not accept his evidence in any way whatsoever.  He was a person who would not listen to questions.  He was a person who would ramble on, doing his own thing, and it cannot be said that he does not understand what took place since he, himself, has seen fit to present his case without the assistance of an interpreter or to call upon the G Language speaking interpreter who is present in court and has been present for the last three days.  I am quite disappointed in his general attitude towards the court and his failure to act properly in relation to not only to me, but to counsel.  I must confess on one occasion I had to raise my voice to him to endeavour to get him to answer a question and I do apologise for that.  I should not have done it.

1. He has changed his view.  He does not believe at this stage that the order that the court should make is that he have the three children.  As I understand from his submissions, his oral submissions, and I confess I found it very difficult to understand him on occasions, he is now seeking week and week about.  As I have said, the mother has conceded that N can remain with the father and that she has put annexure C before me and, as I said, I will be making orders in relation to N separately to the other two children.  I have to, of course, consider the matters as set out in section 60CC and those matters which are referred to in MRR v GR (2010) 240 CLR 461.

2. These have been, I consider, succinctly done by McGregor of counsel who has put before me annexure A which is a submission on behalf of the mother in which she sets out the matters which I should consider and further he has set out in his summary of argument, which was filed on 5 December 2013, instead of the one I meant to refer to, the requirements of section 60CC and I refer to incorporate in these, my reasons, the matters which he has set out in paragraph 6 onwards.  I do not say that I am accepting everything he says there as being correct, but broadly I indicate that I am satisfied that the mother has been the primary care giver, that she has, by far, the interests of the children at heart rather than what appears to me on the father’s case to be wanting the children because he needs extra money which he thinks the government should pay him.

3. I recognise N and I note, of course, in the school reports that he is perhaps not the brightest boy, he has some problems, has made his mind up.  He is 14 years of age and I incorporate in these, my reasons, the reasons of the evidence of Mr J who indicated notwithstanding his view is that all the children should be with the mother.  He recognises that, in fact, N at 14 should he be forced to return to his mother, would do nothing else but run away again.  That, in itself, is tragic and it does tend to suggest to me that there is not sufficient support for the child perhaps by both parties.

4. I have no hesitation in saying that those matters which have been referred to by Mr McGregor in his submissions as contained in the document of 5 December are highly persuasive.  I have considered all those matters and I am of the view that notwithstanding Mr J’ view in relation to N, that the children, the other two children, that is E and M, should remain with the mother.  Insofar as N is concerned, the draft order put before me, annexure C, by Mr McGregor is opposed, as I have already ascertained by the father, on, correct me if I am wrong, please, I think you said 2.3 and 2.4.

RECORDED  :  NOT TRANSCRIBED

1. I would have thought that it is absolutely essential that the mother have some contact with N on his birthday.  I am also of the view that the mother should have contact with the boy on Mother’s Day, the Easter period and for the Christmas period, but, of course, a great difficulty here is whether, in fact, N wants to do it or not.  Mr McGregor has quite properly, on instructions as I understand, put before me, particularly at paragraph 4 of his draft, which says that the mother will only attend to collect N for the purposes of spending time with him in the event that N sends an SMS text message to the mother indicating his desire to spend time with her. 

2. It appears to me that what has happened is that the mother recognises that he has made his mind up at this stage.  She wants to keep the door open for him to come back, should he wish to.  And he being 14 years of age, he appears to me to be the person who is going to determine whether he has contact with his mother and with his siblings, that being E and M.  I am sure that the close relationship that has been referred to therein will overcome any doubts that he may have, and I am sure the father will support his seeing M and E on times other than the times which I will order the father has contact with the children.

3. The question of contact with the other two, to which I have immediately hereinbefore referred, is not easy.  The draft orders suggested by McGregor of counsel, as I understand accepted by the children’s representative, is set out in the summary of argument document filed 5 December, commencing at page 1.  I award in favour of every one of these, save order 22 and 23 which McGregor concedes is incapable of being – he could not argue in favour of them.  I will delete them.

4. There is the question of the children being picked up.  The respondent endeavours to insist that the children should be delivered and picked up by friends of his and by the mother at her address and being dropped off at his address.  The amount of domestic violence in this case, which has not been much in the last four or five months, does not, to any great extent, concern me, other than it is better for the children not to be put in the position of having to see the friends of the father come up and pick them up or the mother having to drive the children over to the father’s residence. 

5. These parties obviously do not get on.  There is a great deal of acrimony in it.  The father has indicated that they have not spoken for some considerable time about anything.  As a result thereof I am more than satisfied in my discretion that the children should be picked up, as far as possible, from school and dropped back there, and other times would of course take place, at the McDonald’s at C Suburb.  We make a lot of money for McDonald’s.

6. There is another question which arose.  The Independent Children’s Lawyer counsel Linklater-Steele submitted that, in fact, the contact should cease not at the beginning of school on Monday mornings, but at 5.30 in the afternoon of Sundays, that is, for the younger two children.  In my view, I am quite in support of such submission since it is quite clear on the evidence that has not been suggested to the contrary by the father that on occasions he is late, that on other occasions the children do not have food.  He is saying he does not have sufficient money.  On other occasions, the children turn up without their school uniforms, necessitating the mother to return to her house to get extra school uniforms to dress them for school.  This would obviate the pressure that would be brought to bear upon the children in the matters referred to immediately here and before.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 11 December 2013.

Associate: 

Date:  11 December 2013