Warwick and Warwick

[2008] FamCA 388

FAMILY COURT OF AUSTRALIA

WARWICK & WARWICK [2008] FamCA 388

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – sole parental responsibility

APPLICANT: Mr Warwick

RESPONDENT: Mrs Warwick

FILE NUMBER: BRF 2166 of 2001

DATE DELIVERED: 22 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 19, 20 & 21 May 2008

REPRESENTATION

FOR THE APPLICANT: Applicant appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr George of Counsel

SOLICITOR FOR THE RESPONDENT: Derek & Dwyer, Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hogan of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice Family Law

Orders

1. That all previous orders be discharged.

1. That the children, a son born … July 1994 and a daughter born … March 1997 shall live with the mother.

1. That the mother shall have sole parental responsibility for the long-term care, welfare and development of the children.

1. That the children spend time with the father at all times as may be agreed between the parties and failing agreement:

4.1 The first weekend of every month with contact beginning after school Friday until 4:00pm on Sunday.

4.2 That the arrangements referred to in paragraph 4.1 hereof be suspended during school holidays and that, during school holiday periods and unless otherwise agreed between the parties, the children shall spend time with the father for the first half of all Easter, June/July, September/October and Christmas School Holiday periods in odd numbered years and the second half of all such school holiday periods in odd numbered years.

4.3 On the weekend of Father’s Day from the completion of school Friday until 4:00pm Sunday.

1. That for the purposes of the time the children are to spend time with the father pursuant to these Orders, changeovers shall be as agreed between the parties.

1. That the children shall be at liberty to communicate with their mother by telephone or other electronic communication at all reasonable times whilst spending time with the father and the mother may be at liberty to communicate with the children by telephone or other available electronic means of communication at all reasonable times.

1. That the children shall be at liberty to communicate with their father by telephone or other electronic communication at all reasonable times with such telephone communication to be via the children’s mobile telephones not via the mother’s mobile telephone.

1. That each party ensure that the children attend all educational and extracurricular activities scheduled while the children is in their care.

1. That each party shall provide 28 days notice of any proposed change of their residential address and home and mobile telephone number and shall advise the other of any change to these details within 48 hours of such change occurring.

10. That neither parent shall discuss with the children or in their presence or within their hearing, any adult issues and in particular shall not discuss any dispute between the parents nor shall the mother or the father tape record any telephone or other conversations they have with the children nor otherwise involve the children in this dispute or any further dispute.

11. That each party notify the other of any serious accident or emergency involving the child as soon as possible.

12. That each parent authorises any professional care provider of the child (for example: the child’s school, doctor or otherwise) to release any and all relevant information to both parents, and both parents shall be at liberty to obtain any relevant documentation from the care provider (including but not limited to school reports, school photographs and medical information) at that parties’ expense.

13. That the children’s schools and medical practitioners are hereby authorised to provide information about the children to each parent including all relevant school and medical reports relating to the children.

14. That in the event of a medical emergency or illness while the children are in the other parent’s care, then the parent who has the children shall ensure the children’s medical needs are attended to immediately and shall inform the other parent of the medical emergency or illness as soon as possible.   

15. That neither parent shall consume illicit drugs either while the children are in their care or for a period of 24 hours before the children enter their care.

16. That the parties do attend upon an appropriately qualified family dispute resolution practitioner in order to discuss any matters in dispute between them prior to filing any further application in relation to parenting matters.

17. That the Independent Children’s Lawyer shall be discharged from the date of these Orders.

18. 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.

19. The parties are released from all undertakings given to the Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2166 of 2001

MR WARWICK

Applicant

And

MRS WARWICK

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the father instituted in 2004 for orders in relation to two children of his relationship with the respondent, the children’s mother.

2. The parties first met in 1993 and a relationship commenced and the first child, a son, was born in July 1994.  The second child was a daughter and she was born in March 1997.  It is alleged by the mother and, to a lesser extent, agreed to by the father that this was not a marriage which one could say was made in heaven.

3. There were difficulties between the parties engendered by allegations and counter allegations of physical abuse, domestic violence, excessive consumption of alcohol and the use of drugs, in particular marijuana, and, it is alleged by the father, amphetamines.  This continued until in or about the month of January, 2001 when the parties separated and, if I may say so, from then on they have remained separated, save for the continuing war over the children.

4. The parties have been in Court for a period of approximately seven years.  There have been orders made on frequent occasions, as early as Joske J who ordered that the children reside, as it then was, with the mother and that the father have some contact.  This was reinforced by an order of Dittman R, then it was varied by Dittman R and then it was varied again by Dittman R who put the children into the possession of the father where they stayed for about eight to nine months.

5. The matter was reviewed by O'Reilly J and on 28 July 2005 she ordered as and by way of an interim order, as I see, that the children reside with the mother upon certain undertakings as contained in the order drawn that day.  Since that time the children have resided with the mother at her parent's residences, either in the H area or at B.  The grandparents - I have seen one of them, the maternal grandfather - have indicated that they are only too happy to have the mother residing with them.  In fact after selling the properties which they owned at H, they moved to B and erected on a property of some one and three quarter acres, a house or cabin in which the mother and the children resided. 

6. There have been great difficulties up until the early part of 2007 in relation to the father exercising continuous contact, if I might use that word, or the father spending time with the children.  He complains bitterly of the fact that the mother did not comply with orders for contact and he says this in itself is a disentitling conduct on the part of the mother indicating that she does not advance the welfare of the children by endeavouring to foster the relationship between themselves and their father.

7. The father has seen fit to appear on his own.  As appears from the material he was indebted to his previous solicitors, the sum of approximately $13,000.  He is, as he said, not in a financial position to be able to seek legal advice.  I think that is quite a tragedy and naturally, of course, I would expect him to take it up with his local federal member that there should be more legal aid available to people.  I do not know whether he applied for it.  I would assume that if he did he obviously has been rejected because he has not appeared with counsel.

8. I say it is a shame because he did not advance his case by his conduct in this Court.  He did not advance his case by his attempts at cross-examination.  He did not advance his case by making statements.  On frequent occasions from the Bar table and, notwithstanding my frequent directions to him to ask questions, he ignored me and he became, with respect to him, exceptionally irritated.

   RECORDED  :  NOT TRANSCRIBED

9. He has an arrogant disregard, as far as I can see, for authority and has endeavoured once again to interrupt me.  I did not find him an impressive witness at all, however, because of the strictures placed upon this Court and myself by the politicians in the amendments to the Act, I have to look at the presumption that there is to be joint parental control and/or living with the children as well as shared parental responsibility.

10. I have to take into consideration those matters particularised in s.60CC, in particular, of the Act and those matters I am going to refer to only in relation to the matters of which I am concerned and which I consider are important in this case for determination.  It is quite clear, of course, children should have a meaningful relationship with both of the child's parents, that is the mother and the father, and I am assisted as usual by the in-depth reports of Mr P.  I will be referring to Mr P at a later stage with a little bit more detail.

11. The children love both their parents.  They wish to spend time with their father.  It is a question of quantum which, of course, is the most important, at a later stage.  I had to look at s.60CC(2)(b) - to protect the children from physical or psychological harm and from being subjected to, exposed to abuse, neglect or family violence.  The father has emphasised that in his belief, and I underline the word "belief" because that appears to be what he puts before the Court as supporting all his allegations, his belief that the children have, over a period of seven years been subjected to physical and/or psychological harm.

12. I must say up until about the year 2004 I am more than satisfied that the mother was under great difficulties as she was addicted to drugs, in particular marijuana and she was not putting the children's welfare first.  This has been recognised by at least two judicial officers who were concerned about her, as was the maternal grandfather.  He gave evidence that the mother was, up until about 2004, 2005 not a good mother.  He was very concerned and he did, as has been brought to my attention by the applicant father, complain bitterly to the Department of Child Safety, or whatever it was called at that time, about the mother's conduct.  Since that time he has alleged that the mother has improved considerably, that she is a new woman, she is a woman of whom he is proud and he has no hesitation in supporting her.

13. That, of course, was indicated by another piece of evidence put before me by the father in a report of Dr S, a psychiatrist who indicated that she was improving.  I am quite satisfied, and I find as a fact that the mother has improved, that the mother has taken hold of herself, if I can put it that way, and has now got rid of drug addictions and is a mother whom the children look up to and, obviously on the material from Mr P, are proud to be her children.

14. So far as the psychological abuse, there may have been some up until 2004 on the part of the mother.  I am more than satisfied that the psychological abuse of the father is such that it is still being perpetrated upon the children and I make it clear in two particulars:  He had eight audio tapes.  These were tapes of conversations between himself and the children by way of telephone which, as he said, he stuck something on the telephone.  That quite clearly breaches a Federal Act and if it had not have been for no-one seeking that I refer the papers to the Attorney-General I would have and he would have been charged with a criminal offence under that Act.  It does not seem to concern him at all.  His criminal history is such that he has had experience with Courts before and obviously it does not worry him.

15. I suggested to him he might like to consider his position in relation to the use of those tapes.  He ignored me.  The tapes are dynamite in so far as he is concerned.  He has on frequent occasions said that the children have told him certain things and in particular two occasions the children have said so on the tapes when he was recording, without their permission or the mother's permission, their conversation.  One is in relation to the alleged rubbing of the son’s face in urine by the mother and the other is, if my memory serves me correctly, and I may be corrected upon this, in relation to a gun being forced into the hand of the daughter by the maternal grandfather when he was taking them on a camping trip.

16. Mr P had the invidious position of hearing the tapes.  He went for five and three quarter hours listening to them.  He was of the opinion, and this is what I extrapolate from his evidence, that the father's attitude towards the children was inhibiting, to use his words.  He has referred me to at least two occasions when the father says, "I expect your mother is not going to let you come to see me."  Well that in itself shows total insensitivity towards the feelings of the child.  This was in relation to the son.

17. In so far as the urine is concerned, he said that the son explained to him that he did not have his face rubbed into poo but rubbed into urine and that this was on the tape.  It was not, according to Mr P.  What was said is:

    "Who rubbed your face in the urine?  Was it your mother?"

    And he said:

    "Yes, I think it was."

    Now, if that is an answer which indicates that the mother did it, I would doubt that any Court would accept it as being detrimental to the mother.

18. So far as the daughter is concerned, her having been forced to hold a slug gun, which I understand is a BB gun, the maternal grandfather denies ever having done this.  He accepts that he does have a licence to own a slug gun.  The child does not support the father.  When he put it to her she said "No."  I would have thought that if, in fact, he would have had any sense at all he would have not necessarily hidden these audio tapes, but he would not have used them and I would not believe that the other party would have known of the existence of them.  He put it forward.  People might be able to say that he is his own worst enemy and that he has caused the difficulties under which he is labouring at this stage.

19. A further item of his insensitivity towards the feeling of the children was a bold, brash request on the first day of the hearing that the Court ring the son, who was 13 and a half years of age, and let him tell us, not that he hates his mother but he is frightened of her.  Total insensitivity towards the children.

20. Insofar as s.60CC(3)(a) is concerned, i.e. the views expressed by the children, the son has made it quite clear to Mr P, Mr P has made it quite clear to the father, not only in his reports, outside the Court yesterday and in Court that the son does not want to move from B.  He is settled there.  He is at school.  He does not want it to be changed again.  To use his words:

    "I don't want to go back down there."

    That is to W where he was at school prior to his being taken to B.

21. This was put to the father.  He said, "Yes, I consider that's reasonable," but then he takes no notice of the boy.  He ignores the wishes and goes back, as I have said, being fixated on the years 2002 and 2001.  All - perhaps I am going too far - the greatest majority of his cross-examination dealt with 2002 and 2001.  He was unable to look to the future.  He was unable to recognise what had happened since, in particular, 2004 and Mr P told him so.  That unless he looks to the future, unless he recognises that things have changed, unless he shows some sensitivity, as I find, towards the children he is going to lose them.  Mr P told him that outside, as Mr P said, and here in Court.  He would not listen.

22. It is strange.  I have had Mr P before me on numerous occasions in my 32 years on this Bench.  Mr P is renowned as being a balancing family consultant.  He rarely says anything which could be suggested as being a determination.  He always has in all his reports before in this manner attempted to encourage the parties to put the children's welfare first.  I think it is the first time that I have heard Mr P, in my many years of hearing him, and he has had years of experience as well, coming out and saying, "Do something or you'll lose them."  And he said that, but of course that is a matter entirely for the father to determine whether in fact he is going to listen or take any notice of it or still remain back in 2002/2001. 

23. I do not believe that the nature of the relationship between the father and the children has been gravely affected, but it will be.  The children love him, it is quite clear, and they enjoy their times with him.  I must say in passing that the father feels unable to pay any form of meaningful child support.  I do not have anything before me, but he has been assessed at $10 per fortnight or something of that nature, yet he is able to purchase the children's motor bikes; he is able to purchase for the children riding gear, which I assume is somewhat similar to leathers; he is able to purchase for the daughter a violin, which is all very nice; but he is unable to support the mother who is on a pension and pays $100 per week as and by way of rent to the maternal grandfather; but he is unable to forward to the children, which is what the child system requires, moneys for their maintenance and/or sustenance.

24. He prefers to buy material things.  Perhaps one would suggest that in fact he is endeavouring to make their time with him much more attractive and I think that that, in itself, does show, once again, a question of insensitivity to the welfare of the children, notwithstanding the fact they enjoy it, why not?  They have fun with their father.  I am pleased to see that.  In fact I must make it quite clear, I have already in argument said that if it had not have been for the wishes of the children, particularly the son, if it had not have been for the sensitive investigation set out by Mr P, I probably would have made no order for the children to spend time with the father.

25. The other matter is the attitude of the children and the responsibilities of parenthood demonstrated by each of the child's parents.  I have touched upon that, the insensitivity of the father; the inability to recognise that the son’s wishes should be considered; the inability to recognise that six years has gone past since when he considers the most important thing in the children's lives have been.  The children have grown up, he has not.  He has not recognised that the future is more important than the past, albeit, it can be said that history is suggestive of the future.

26. So far as family violence is concerned, I briefly touch a bit upon this.  I am more than satisfied that the father has exhibited violence towards the mother.  I am more than satisfied that he has consumed alcoholic liquors to excess.  The reason why I say that is that there has been corroboration in relation to the confrontation about the Xbox by the maternal grandfather, by the mother and to the son and from the son.  His conduct on the first day of the trial also indicated to me that he has great difficulty in controlling his temper and it appeared to be as though he was almost like a volcano, ready to erupt at any stage.  He did maintain his composure and, as I find, improved on Tuesday.  He apologised for his conduct on the Tuesday morning and, as I said, he was much better that day than he was the day before.  He has lied to the Court as has the mother.  He has lied in relation to his criminal charges and he apologised for failing to recognise that he should have told the truth.

1. It is quite clear, in my opinion, that these children should not be removed from their present situation.  I am, as I have said somewhat doubtful as to whether I should make an order for the father to spend time with the children at all.  I do not know whether his attitude is such that he would advance the welfare of the children but the children love him.  They love their time with him and I think it is important, and I am directed by our political masters to ensure that it is the children's right that I have to emphasise.  Parents do not have any rights, they only have duties.  It always has been so in my Court, notwithstanding the view of the politicians which as expounded what, two or three years ago.

2. I am disappointed in the father.  I believe that he has not taken into consideration the statements of Mr P, the recommendations of Mr P and has not listened to Mr P.

   ORDER DELIVERED

3. Should there be shared parental responsibility?  I do not believe that there is, in this case, and I refer and incorporate in these, my reasons, the evidence of Mr P where he says that they cannot agree.  And if they cannot agree it is very difficult for shared parental responsibility to remain in being.

4. The next question is the spending time with.  The father, of course, in his application sought an order that the mother have supervised contact with the children.  Naturally, of course, I will be dismissing that application.  Mr P has said in his report and in Court that the father initially considered that perhaps spending time with the children for one weekend a month would be preferable and acceptable.  He, of course, does not accept that now.

5. Mr P has put forward the reason why he recommends that the spending time with be lessened and that is because the son is interested in extra curricular activities.  He is a northern Queensland boy now and he should have his weekends not interfered with. He also refers to the fact that it is a considerable distance for the father to drive, I expect some four or four and a half hours between Brisbane and B each alternate weekend.  Taking those matters into consideration I find that the spending time with the father by the children should be limited to once per calendar month, once in every four weeks if my memory serves me correct.

6. I have called upon Ms Hogan, counsel for the independent children's lawyer, to put before me a draft order, and having looked at that draft order, I am going to amend it in two particulars.

   ORDERS DELIVERED

   RECORDED:  NOT TRANSCRIBED

7. It has also been sought that in particular the mother be released from an undertaking whereby she undertook before O'Reilly J that she would reside with the maternal grandparents.  I think that that area of her life has been most beneficial in that the overall supervision, perhaps not in particular, but general supervision of the maternal grandfather has been of a benefit to her.  I was most impressed with the maternal grandfather, …, I consider the mother has now shown that she is a responsible adult and that she should not be required to remain there if she is able to find other reasonably adequate accommodation.  I would recommend that she remain there.  I will not require her to comply with her undertaking and release her from it.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: