Boston and Jold

[2008] FamCA 997

FAMILY COURT OF AUSTRALIA

BOSTON & JOLD [2008] FamCA 997

FAMILY LAW – CHILDREN – Interim – Mother seeking to suspend father’s time with children - Refused

APPLICANT: Mr Boston

RESPONDENT:  Ms Jold

FILE NUMBER: PAF 1819 of 2005

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 1 August 2008, 22 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wynn

SOLICITOR FOR THE APPLICANT: Robinson & Robinson

COUNSEL FOR THE RESPONDENT: Mr Stewart

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Kenny

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of NSW

Orders

1. That the orders made on 20 July 2007, as varied by the orders of 5 November 2007, continue pending further order.

2. That the children’s next period of time with their father take place at a time nominated by the manager of the Interrelate Centre at R. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAF1819 of 2005

MR BOSTON

Applicant

And

MS JOLD

Respondent

REASONS FOR JUDGMENT

the proceedings and background

1. These proceedings concern interim arrangements for the children of the parties:

   L born in January 1999 (9) and

   C born in August 2002 (6)

   to spend time with their father.  Mr Boston (“the father”) and Ms Jold (“the mother”) have a third child, E born in July 1991 and now 17.  Appropriately in light of her age, neither parent seeks orders in relation to E.

2. On 20 July 2007 interim orders were made by consent, which provided for L and C to spend two hours per fortnight with their father at the Interrelate Contact Centre in R.  These orders, and a subsequent variation on 5 November 2007, provided that the father undertake screening for alcohol, prescription medication and illegal drugs.  Further, he was required to continue to attend his treating psychiatrist and act upon his recommendations.

3. These interim orders were expressed to expire after six months or upon the receipt of a report from Dr M, the single expert.  Dr M’s last report was dated 15 May 2008.  The orders of 20 July 2007 are thus no longer operative. 

4. The present application arose from a most regrettable incident.  These events were described in detail in an affidavit sworn by the mother on 27 July 2008, which I have read carefully.  I will not repeat the details of this incident in these reasons.  In summary, the mother and E were accosted in R by four men from a media organisation.  The reporter made repeated references to allegations by “[Mr Boston]”, of dishonest behaviour on the part of the mother and a refusal to allow him to see the parties’ children.  As the mother and E tried to leave, these people followed closely while photographing and recording them.  They went so far as to pursue the mother and E into a government agency.    

5. Later that afternoon the mother and the children saw the same men outside their home.  It may have been that the father was also present, as the mother claims that she saw a car similar to his at the scene.  Not surprisingly, the mother maintained that she and the children were very frightened by these events. 

6. These events were triggered by an act of almost inconceivable foolishness on the part of the father.  When contacted by a member of staff of the media organisation, he agreed to participate in an interview.  He made numerous remarks about the mother in relation to her lack of honesty and integrity.  Further, he complained about difficulties in spending time with the children, which he attributed to her opposition. 

7. This interview took place and, apparently, the reporters then travelled to R to confront the mother with these allegations.  The only reasonable inference which can be drawn is that the father assisted them in locating her.  As noted, he may have been in R with these people and present outside the mother’s home.

8. The interview was released by the media organisation in 2008.  The father maintained that he tried to prevent the release of the interview.  It may well be correct that he realised how ill-advised was his conduct and that he tried to stop the release. 

9. Following this incident the mother sought to suspend all of L and C’s time with their father.  For his part the father sought to continue the interim orders made on 20 July 2007.  Essentially, the father’s position was supported by the Independent Children’s Lawyer.  This dispute came before me on 22 August 2008 when, by agreement, I treated these proceedings as an application by the father for continuation of the interim orders made on 20 July 2007 and 5 November 2007. 

The Allegations of the mother in Support of Suspension of Time

1. The mother resisted any ongoing arrangements for L and C to spend time with their father for a number of reasons, which can be summarised as follows:

   ·she can no longer cope with any form of contact with the father

   ·since the media interview, the prospect of a 120 kilometre round trip on a sparsely populated road makes her feel panicky

   ·she finds the car trip from her home at T to R with the children very difficult and stressful, because of her health problems and their behaviour

   ·the children repeatedly tell her that they do not want to see their father

   ·she and the children have been embarrassed in their community since the interview was released, with L and C blaming their father for sending the reporters to their home

   ·the children’s behaviour has improved since time with their father has ceased

2. In my view, the mother’s affidavits of 27 June 2008 and 20 August 2008 create the impression that she is searching for every possible justification to prevent the children from spending time with their father.  Of course, the reporters coming to the mother’s home must have had a significant impact on the mother and the three children but the clear impression from her affidavits is that her opposition to the children’s spending time with their father existed long before these events.  Dr M’s report of 15 May 2008 creates a similar impression.

Section 60CC Considerations

The Primary Considerations

·    section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents 

1. In his report dated 15 May 2008 Dr M identified positive aspects of the children’s relationship with their father.  For example, he observed: 

   “[L] was enthusiastic in greeting her father.  [L] showed off her new dental work to her dad and then returned to play with her mother” and

   “Although [L] asked if it had been 6 hours yet (the time frame of the assessment) continued comfortable play was observed between the children and their father.  When [C] was taken to the toilet by the mother, [L] happily stayed with her father.  Numerous excited and playful interactions were observed.  [L] joked about being scared that her father was going to tickle her and ran back playfully, jumping on to his back.  She agreed that she had a good time playing with him”  and

   “Both children were asked about their experience at the play centre.  Both agreed that they enjoyed it and would like to see their dad more often.  [L] however emphasised that she would not like to go to his house because she would not feel safe without someone being there.  Both children indicated that they did not like [G], their father’s girlfriend, because she wasn’t a nice person”  and

   “At the conclusion of the children’s time with their father, they farewelled him with great enthusiasm.  [L] in particular stated ‘I love you, miss you!’”  and

   “[C] in contrast was seen to actively enjoy his contact with his father.  His stated views that he did not wish to see his father and that he was scared of his father, were based on the strong view expressed by his mother and older sister.  It was my impression that [C] would benefit from more contact with his father.”

2. Dr M supported the father’s proposal for a gradual introduction of unsupervised and lengthier periods of time with L and C.  Although he wrote his report prior to the reporters attending at the mother’s home, it was clear that he was acutely aware of the mother’s opposition to the children’s spending time with the father and of her hostility towards him.  I do not infer that Dr M would withdraw his support for ongoing supervised time on the strength of the reporters coming to the mother’s home, given the other considerations which he addressed in his report.

3. The reality is that there will be a significant interruption to the children’s relationship with their father, if the present application of the mother is successful.  There may well be a significant impact on the log-term quality of the relationship.

   ·    section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

4. In my opinion the father’s conduct in relation to the media interview, although extraordinarily ill-advised and indicative of self-focus, does not amount to abuse of the children.  I accept that he sincerely regrets his actions but the consequences were entirely predictable.  It may be that his remorse is driven partly by self-interest, in terms of his ongoing time with the children.

Section 60CC(3)

The Additional Considerations

·    section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views

1. I approach with caution any evidence from the mother as to views allegedly expressed by the children to her, in relation to spending time with their father.  Clearly she wishes that L and C have nothing more to do with their father and they would certainly be aware of her attitude.

2. This dynamic was observed by Dr M, who reported: 

   “The mother’s ongoing opposition to the father’s contact with the children was clearly evidenced during the assessment.  This was seen in her own statements and the children’s descriptions of her response to them having contact with their father.  I did not share her view that the children were currently at risk.  I would support the father’s application for ongoing regular contact with his children.  It should however be recognised that unsupervised contact at the father’s home in [X] would continue to be difficult, given [L’s] evident emotional insecurity.  She declared a clear and consistent wish for this not to occur.  [L] was highly aware of her mother’s emotional response to such issues.  [L’s] insecurity is likely to be exacerbated by her mother’s opposition to such an arrangement.  As such, further opposition is likely to be seen in [L’s] behaviour, should such an arrangement be enacted.  [E’s] behaviour and hostility towards her father also provide a model for [L].”

   ·    section 60CC(3)(b): the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child)

3. There is no doubt that the children have a close and loving relationship with their mother.  She has always been their primary carer.  They appear to be developing a positive and loving relationship with their father, despite the mother’s hostility and opposition.

   ·    section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent     

   ·    section 60CC(3)(f):     the capacity of:

   (i)each of the child’s parents;  and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs

   ·    section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

   The evidence relevant to these considerations overlaps considerably.

4. Dr M had real reservations as to whether the mother has the capacity or willingness to facilitate the children’s relationship with their father.  When discussing the prospect of a gradual introduction of unsupervised contact, he wrote: “the mother’s hostility to such contact is likely to be the primary impediment”. 

5. The father is not in a position to facilitate or encourage the children’s relationship with their mother in the short, unsupervised periods of time which they spend with him.  His involvement in the media interview, however, must call into question his attitude to the mother and his capacity to allow the children to maintain a positive image of her in a less formal setting.

6. Since 27 May 2008 the mother has consulted a psychiatrist, Dr B.  In a report dated 16 August 2008 Dr B referred to the day of the media interview with the mother and offered the following opinions: 

   “In my opinion [the mother] has suffered an acute adjustment disorder with mixed anxiety and depressed mood (DSMIV 309.28) and is at risk of developing a major depression or post traumatic stress disorder given the protracted and high levels of stress she has encountered to date.  The events of [that date] and the airing of her family’s private and deeply distressing conflicts [in the media] finally overwhelmed her coping resources, which resources [the mother] had begun subjectively to experience as fragile in the previous month.  As a result, I would advise [the mother] against further contact with [the father] in any setting where this can be avoided, specifically in regard to contact visits between the children and their father.”

   I have no reason to doubt this evidence although it is as yet untested.

7. The father began to consult a psychiatrist, Dr Z, in 2007.  He has seen Dr Z on 9 occasions between 27 August 2007 and 9 July 2008.  In an affidavit sworn 29 July 2008 Dr Z offered the following opinions: 

   “There is no specific psychiatric diagnosis for which I am treating [the father].

   From my professional observations of [the father] during our consultations I say that [the father] is stable.

   Further from my professional observations of [the father] during our consultations I say that there is no substance abuse or gambling and no formal mood disorders.

   I do not prescribe any psychiatric medication to [the father].”

   Again, I have no reason to doubt this evidence although it is untested as yet.

8. Dr Z’s assessment of the father’s current stability is consistent with the opinion of Dr M, who reported: 

   “The father was identified to have had a substantive stabilisation in his mental state.  This was based on his own self report, the observed mental state and behaviour during the assessment process and the observations of his treating psychiatrist and staff at Interrelate.  A discussion was held with his treating psychiatrist, who confirmed that there had been no evidence of any significant disturbance of mood or behaviour in the context of their regular review.  This was despite the father not currently being on any mood stabilising medication.  No recurrence of significant drug or alcohol use was identified. It should however be acknowledged that given the father’s longstanding vulnerability to emotional and behavioural problems and  previous diagnosis of bipolar disorder and substance abuse disorder, that he remains vulnerable to decompensation into the future.”

9. The effect of the change now sought by the mother would be an interruption of many months, at least, to the children’s relationship with their father.  As noted above, Dr M observed positive developments in this relationship in May 2008.  On the other hand, the proposals of the father and the Independent Children’s lawyer would allow the relationship to continue in a safe setting.

   ·    section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

10. The mother maintained that it is difficult for her to drive the children to and from the contact centre at R.  She pointed to her ill-health, her anxiety since the day the reporters came to her home and the children’s allegedly difficult behaviour during the trip.

11. There is nothing to prevent the mother from obtaining help with the transport from other people.  I appreciate that she claimed that no person is able to assist her.  This evidence, however, is untested and smacks of convenience.

Conclusion

1. I am most reluctant to take the step, at this stage, of completely severing the relationship of L and C with their father.  I am asked to continue the existing arrangements, which permit them to spend time with their father under safe conditions.  I would not countenance making any different interim orders.

2. I appreciate that the mother’s psychiatrist is of the opinion that any contact with the father will be detrimental to her psychological well-being. The mother will not be required to come into direct contact with him, however, if the children continue to attend the contact centre.  Ultimately, it is a question of balancing this weighty consideration against the very serious step of completely severing the relationship of L and C with their father.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson  

Associate:     

Date:              9 September 2008