Noel and Sun

[2007] FamCA 772

FAMILY COURT OF AUSTRALIA

NOEL & SUN [2007] FamCA 772

FAMILY LAW - CHILDREN – Sole parental responsibility – Family violence - Alcoholism – Spending time with - Supervision

APPLICANT: MS NOEL

RESPONDENT: MR SUN

FILE NUMBER: BRF 11196 of 2003

DATE DELIVERED: 20 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 11 & 12 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane of Counsel

SOLICITOR FOR THE APPLICANT: Stephen Tester & Associates of Ballina

SOLICITOR FOR THE RESPONDENT:	The Respondent appeared on his own behalf
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER	Mr Burridge of Counsel
INDEPENDENT CHILDREN’S LAWYER	Trenches, Solicitors

Orders

1. The children B born in June 1995, J born in July 1997, T born in January 1999, L born in August 2000 and Y born in August 2002 live with the mother.

2. The mother have sole parental responsibility for the children.

3. The children T, L and Y spend time with the father at all such times as the mother and father agree and failing agreement as follows:

   (a)On the last Sunday in each calendar month at the M Contact Centre or such other contact centre in the vicinity of M that can be arranged for a maximum of two hours at times suitable to the Contact Centre.

   (b)After completion of nine (9) occasions at the M Contact Centre or such other Contact Centre and a report be prepared pursuant to Order 6 of these Orders.

   (c)By telephone at any reasonable time but on no more than three (3) occasions each week with the father to initiate such calls.

4. The father to meet all costs associated with the attendances at the Contact Centre.

5. The mother keep the father informed about all schools, doctors and other health professionals attended by the children from time to time and authorise such institutions or persons to release information in relation to the children to the father.

6. Before completion of twelve months of the children spending time with the father as set out in Order 3(a) a report be prepared by Mr H regarding the operation of these Orders and upon such report being prepared the Independent Children’s Lawyer be at liberty to relist the matter for further directions or orders.

7. The father is not to consume alcohol in the eight hour period leading up to or during the time the children spend time with him.

8. The mother and father keep each other informed of their telephone numbers and notify the other of any change of telephone number through the Independent Children’s Lawyer.

9. The father be entitled to attend any school or sporting function that the children are involved in and that it is usual for parents to attend.

10. 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 Noel and Sun

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 11196 of 2003

MS NOEL

Applicant

And

MR SUN

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Noel for certain orders in relation to children born as a result of her association with the respondent father, Mr Sun.  As appears from the lengthy material before me, the parties commenced a relationship in or about the month of July 1996.  At that time the mother had already a child named B who was born in June 1995, she now being about 12 years of age.

2. From the association of the relationship, as I said before, four children were born they being, J, in July 1997; T, in January 1999; L, in August 2000; and Y, in August 2002.  Subsequent to separation the children remained with their mother and have continued to remain in her primary care.

3. At this stage I might indicate that I am aware of the substantive amendments made by the politicians to, I think it was the 73^rd substantial amendment, made to the Family Law Act last year which came into force and effect on 1 July in which I am faced with a presumption of joint parental responsibility and care, and I am to base such order, unless the requisite reasons are set out in the Act are in the evidence to indicate that such presumption should not apply.  And I say, so it will relieve the angst of any of the parties, that I have no intention of being bound by the presumption since I am more than satisfied that the poor attitude of the father whilst he, as he says, was under the influence of liquor, is such that no person, not even an Appeal Court could order that there be joint responsibility in relation to these children, particularly where I have evidence which I accept from Mr H, that J has been physically assaulted by his father on several occasions to such an extent that J no longer wishes to see his father and has great difficulty in even seeing his paternal grandparents.

4. At this stage the father does now concede that in fact any action of his, physical or otherwise, could cause J to become in fear of him.  He initially had conceded that he may have held J over a toilet bowl, but he appears in his evidence and, in particular, in cross-examination to resile from that statement and indicate that that was part of his ebullient nature and rough-house tactics with his children which he asks me to infer was a sign of love and affection rather than emotional and/or physical bullying.  I am more than satisfied on the evidence and, in particular, the conceded evidence of the father that during this time of cohabitation he was drunk.  I am more than satisfied that he was and is an alcoholic and, as such, he is a person who has to watch himself particularly closely, and he says he has not had a drink since April or March of last year, but that in itself is not the be all and end all.  He can never have another drink again.  He is a recovering alcoholic, as he says, and as a result of that with the assistance of AA he has remained alcohol free for a period of just over a year.  Mr H has some doubts about that.  Mr H, being a family reporter, a psychologist, upon whom I shall touch at a later stage.

5. Subsequent to separation there have been chequered periods of spending time with the children by the father.  There have been orders made.  There have been apprehended violence orders taken out against him, one of which I think is still in force and effect.  And as far as I can see, that those matters were adjudicated in favour of the mother and also were ordered in protection of the children.

6. The father comes to this Court with a view to saying he has recognised the error of his ways.  I have suggested to him he is probably the author of his own misfortune.  I am more than satisfied that he was, and that having changed, having seen the error of his ways, having become sober, recognising that he is addicted to alcoholic liquors, that he is a changed man.  He points to the fact that he has been living in a de facto relationship with a Ms X, who loomed large in this case initially.

7. Ms X is of Croatian extraction.  She has come to Australia and is now an Australian citizen.  She has an elder daughter who was, according to Mr H's report, living with her.  I think she is about 20 years of age or thereabout.  Ms X impressed me as an intelligent, articulate woman who was more than capable of making herself understood in the English language and is more than capable of understanding it, notwithstanding the suggestion on the father’s part that she was some poorly educated, ill equipped person to understand what was going on in Australia.  She impressed me as being highly intelligent.

8. Regrettably it was assumed by Mr H, albeit with a little difficulty, that Ms X would make herself available for supervision of any spending time with that the father may have with the children.  Regrettably, as a result of her occupation she is unable to confidently to say that she would be available at all times that may be ordered for the purpose of supervision, and as a result of thereof, as the father said, she is no longer a viable option and I must cast aside, with great regret, the proposition that Ms X might be able to supervise the children.

9. Why do I raise the question of supervision?  The father said it is unnecessary that he should spend time with his children as set out in his amended response, that is every alternate weekend and half the school holidays unsupervised.  He lives in N in Brisbane and the mother lives in M or G which is, I understand, a suburb of M.  There is a small tyranny of distance between them.

10. He now, he says, is employed in a transportbusiness and requests that if in fact there is to be any contact or if he is to spend time with his children, he wishes the turnover or the handover to be in a place approximately half way between, and I think it was faintly suggested by Burridge of counsel for the independent children's lawyer that such a handover place and/or a spending time with area could in fact be the O Contact Centre.

11. Should the father - and this is I think the whole basic case - the father does not, for one moment, suggest that the children should be removed from their mother's possession save for the purposes of him spending time with them.  I have particularised the fact that he wishes the certain hours, to which I have already referred.  Why should I order that or why should I not?  Perhaps we will make the positive approach; why should I?  First of all the children have spent little time with their father.  He says not because of his own fault but because he was completely and utterly sick and tired of the whole matter.  He had no legal support, that he was informed that the mother was pregnant.  That is the case.  She has a child to her present partner, whom I have seen and was quite impressed with, and he said the matter appeared to be escalating and he was hopeful that the matter will resolve.

12. As a result of that, subsequent to the interviews with Mr H, which took place in about June of last year, he has done little or nothing to spend any time with his children since then.  He is of course another person who has not paid any, or if some, a very minor amount of child support to his four children, but he sees fit to expend the property settlement which he received of some $16,000, according to his evidence, and as well to purchase a prestige motorcycle for the sum of $14,000 but did not see fit to make any substantial payments towards the maintenance of his children for whom he professes a deep and abiding love.  The children, I expect he considers, is to live solely  upon the earnings of the mother and he does not have the financial responsibility for such maintenance of the children for whom he expressed great love.

13. J does not want to have anything to do with him and, on the evidence before me, I am more than satisfied that J as a young man has evidenced a proper decision since he would be afeared of his father, a terrible position for a child who is just over 10 years of age to be put in, as a result of the conduct of his father towards him.  Has this sloughed off onto the other children, if I may put it that way?  It appears not.  On the evidence before me, albeit this was only until June 2006 and the report of Mr H, the other three, that's T, L and Y do have a relationship with their father and enjoy it.  Mr H is aware of that and indicates, as at June 2006, that subject to the children - and I am not using any words of his, these are my words - the children being safe, subject to the mother being assured that the children will be safe, i.e. protected by way of some form of supervision, he could see no reason why the father should not spend time with his children.

14. He was somewhat doubtful as to the recovery of the father.  He was somewhat doubtful as to whether or not his violent conduct towards the mother - I find he was violent to the mother - his story about hitting the mother and her tooth falling out as by way of accident in the dark was pathetic in the extreme - may have been engendered not only by alcohol but by some personality problem.  He did see a Dr E, a psychiatrist, back in 2004 who indicated he had no psychotic problems at all.  Notwithstanding this Mr H, in his report of July 2006, was concerned that there may be some psychological underlay, and recommended that the father attend upon a psychologist with a view to receiving treatment.

15. He sent an e-mail to the independent children's lawyer who, acting in the highest standards required of the independent children's lawyer, made inquiries and offered to him, I think, four or five psychologists or social workers who lived within 25 kilometres of his then address at A with a view to his approaching them.  He was also informed by Mr H these people, not necessarily named, but people of this persuasion do in fact bulk bill.  His reply to this in Court was it was a waste of time.  That just, in my opinion, tends to show his whole attitude towards his children.  Anything that puts him out is a waste of time.

16. He did not view the fact that this Court would appreciate some evidence in relation to the suggestion made by Mr H that he should seek further psychological assistance, but he is sufficiently arrogant enough as I find to deny that that is necessary.  He is an ill man.  He has either an anger problem, which he says he has attempted to resolve and mouths platitudes to Mr H, see particularly the report at para.22 and I must say Mr H quite clearly doubted that in fact these platitudes mouthed by him are in fact being carried out by the father.  He was somewhat concerned after evidence was put to him of the things which took place subsequent to June 2006.

17. And here I must, once again - this has happened frequently this week - must say that this Court is put in a totally invidious position where in fact it has to determine a matter by reference to what is a most important document, that is the family report which is more than 12 months old.  It would not be so bad if the children were 13 or 14, but we have children of the age of Y, who at the time of the report was about four years old, he is now five.  He is probably going to school and children of this age develop remarkably quickly.  The Court is left partially handicapped with one arm behind its back but that, of course, will only be criticised by members of the press and/or people who have some association with this Court in this matter.

18. I am minded, of course, that my reasons have been criticised on frequent occasions in that I do not give sufficient.  If people do not understand the way I am feeling at this stage, I must suggest that they need some assistance themselves.  It has been said in the Court of Appeal that on appeal from a Judge who had 25 years experience, or thereabouts, in a certain section of the High Court of England, that it was impertinent for any person to appeal against the decisions of that Judge wherein they suggested that he did not find all necessary facts to support his judgment.  I feel as though I do and I incorporate in these, my reasons, particularly the view of Mr H in relation to the father’s general attitude towards life.

19. I must confess that I was at one stage almost persuaded not to order any spending time with the father with the children other than with it being stringently supervised.  Then of course the difficulty arises, who is the supervisor?  The paternal grandmother has had a relationship with the mother and she, quite properly, and I compliment her upon this, allowed the children to visit the paternal grandparents, I think it was about once a month, for weekends, and it appears as though the children enjoyed that, save I think J has now been withdrawing a bit.

20. The paternal grandparents were at one stage parties in this case but they withdrew in November of last year and at that stage indicated they were no longer interested in either spending time with the children or, in particular, being supervisors of their son spending time with the children.  I can understand that.  As was pointed out by the father, his mother is an elderly lady of 69 years of age and I think she has been injured recently.  That is very difficult for her to carry out what I consider to be the very onerous duties of a supervisor.  Consequently one supervisor - well, one section, that is the paternal grandparents, are out.  Ms X is out.  And I make it quite clear I could not, in any way on the evidence before me, which I have incorporated in my reasons, order unsupervised spending time with at this stage.

21. Who do we have left?  The contact centre which should no longer be called a contact centre, it should be called a spending time with centre, but that is a matter for the politicians to clean up their act in relation to the naming of contact centres.  It is not for me to do anything about that.

22. So I will have to look now at the s.60CC factors.  I am aware that it is important for the children to have a meaningful relationship with both of the parents, but meaningful is the word.  J is getting no meaning out of his relationship.  I must say if it had not had been for Mr H’s evidence, and to a lesser extent, the mother's wherein she concedes that the younger children love their parent, I would not have thought there could have been any meaningful relationship between these children and a drunk, and a person who has been violent, not only to the mother but also, in particular, to J, and also of course I think it was Y who he says accidentally was involved in the fracas in which the mother lost a tooth only at one occasion by mistake, I think because the lights were out or something.

23. I am protecting the child, J, from physical or psychological harm by refusing to make any order in relation to him to spend time with his father.  So far as the other children are concerned, there does not appear to have been any physical violence offered to them, but I am more than satisfied that the conduct of the father during such time as cohabitation took place and, on occasion, subsequent thereto, has caused them psychological harm.  I also refer, of course, to the statements made by the children to the mother in her lengthy affidavit.

24. J has expressed his view and he has been listened to by me and no order will be made.  The others, I think, are a little bit too young, but it appears on the evidence that they are enjoying the time spent with their father so long as, of course, they are protected.  I must say that the willingness of the mother to facilitate contact is on one hand somewhat doubtful and, yet, on the other hand she is more than willing for the children to have contact with the paternal grandparents whom, I understand since May have come back in the scene and are having some periods of time with the children, but she is more than willing for the children to have contact or to spend time with the paternal grandparents, I think for the period of a similar nature, that being a Saturday and Sunday about one weekend a month.  And I understand that subject to the paternal grandparents undertaking to supervise, that she would have no objection to the father seeing the children at that time. 

25. He does not wish to take that option and, as I infer from his evidence, if there is any supervision ordered, the children will not see him.  It may be that a person less charitable than myself would say that would be a benefit to the children, but the children come first and I have to consider what is in their best interests, and it appears that they are entitled to know their father, something which politicians found out about last year, that they are entitled to the support of their father which has not been given because he buys motorbikes, and they are entitled to know their father and to grow up with, we hope, some respect for him.  I will not touch upon other matters in relation to separation of the child from the primary caregiver in this case and I do not believe that they could be removed from the mother.  It would be disastrous and catastrophic.

1. There will be some expense for the father in his spending time with the children at a contact centre.  That will necessitate his perhaps using the prestige motorbike or some other form of transport to travel from N, which is a southern suburb of Brisbane, to M.  I would think that would take approximately an hour and a half.  He is very close to the freeway, he says, to get to the contact centre in M. I do not believe that the mother should be forced to drive from M to O.  She indicates that financially she is somewhat bereft.  That it could cost her a considerable amount of money by way of petrol expenses that she does not have, and there is no offer from the father to pay for such running expenses. 

2. The children are not of Aboriginal or Torres Strait extraction.

3. I have touched upon the violence, towards J in particular, and towards a member of the family, the mother, and I am satisfied that there has been psychological violence impacting upon the children during cohabitation between the father and the mother.

4. For the matters that I have touched upon which I hope is sufficiently, patently clear, I do not believe that the welfare of the children would be advanced by their having unsupervised spending time with the father and I think that the only way that we can allow them to develop respect for their father is so long as they, themselves, are protected from his previous, and we hope no longer, drunken, alcohol-fuddled behaviour and his anger, which we hope also has been improved.

   ORDERS DELIVERED

5. In so far as the other orders are concerned, the father has sought orders in relation to schooling and things of that nature.  They seem to be pretty well covered by the minutes of the proposed order forwarded to me by the independent children's lawyer.  I refer in particular to order sought 3.  I have amended the draft, Ms Hazan, so you will have a look at it, will you?  Three and nine. I do not believe there are any other matters which should be inserted therein.  It may be brought to my attention by either Mr Tester or the father.

   ORDERS DELIVERED 

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: