Choate and Raymond
[2012] FMCAfam 1441
•11 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOATE & RAYMOND | [2012] FMCAfam 1441 |
| FAMILY LAW – Parenting – order for no contact with mother – enmeshed relationship. |
| Applicant: | MS CHOATE |
| Respondent: | MR RAYMOND |
| File Number: | SYC 2546 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2012 |
REPRESENTATION
| Ms Choate in person |
| Mr Raymond in person |
| Independent Children’s Lawyer | Ms Power |
ORDERS
The mother be restrained from having any form of communication with the child [X] born [in] 2000.
[X] is to spend time with the maternal grandmother as proposed by the father.
Any further evidence upon which parties intend to rely be filed and served no later than 24 August 2013.
The Independent Children’s Lawyer be granted leave to re-list on seven (7) days notice.
The Independent Children’s Lawyer be granted leave to issue such further subpoenas as the Independent Children’s Lawyer considers appropriate.
IT IS NOTED that publication of this judgment under the pseudonym Choate & Raymond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2546 of 2007
| MS CHOATE |
Applicant
And
| MR RAYMOND |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This case is about [X], born [in] 2000. [X] is 12 years, heading towards 13. The applicant is her mother, the father the respondent. [X] is represented by her own solicitor, Ms Power. The matter relating to [X] has a very, very long history, going back to 2007. The Independent Children’s Lawyer has filed a case outline document containing a short chronology, which goes for four or five pages. It is a short chronology because the matter has a very long history and I daresay the long chronology would take at least twice that long.
The history of this matter was well known to the parties, but for the purposes of these ex tempore reasons I will simply incorporate into these reasons the chronology that is contained in the case outlined. By way of recent history, the application came back before me as a result of the father’s application that was filed on 13 July 2012. He was, in effect, seeking a discharge of the final orders I made on 17 November 2011. The father’s application is supported by a number of affidavits sworn by him. In fact, there are three filed 24 October 2011 and 13 July 2012.
The mother’s response to that application is, in fact, contained in a contravention application that was filed 3 July 2012, supported by her affidavit sworn 2 July 2012. Whilst the mother’s opposition to the father’s case was by way of a contravention application, I am satisfied that for all practical purposes the issue in this case has been joined in the technical sense and the issue that I had to decide was whether to restrict [X]’s time with her mother and, if so, on what terms.
By the time the matter came before me for interim hearing yesterday, the Independent Children’s Lawyer and the father proposed in their respective minutes of order that the orders for contact and communication be discharged. There is a slight difference in the position between Mr Raymond and the Independent Children’s Lawyer and that is about whether the mother should be restrained from all forms of communication with [X] or whether the restraint should simply be about telephone communication.
Another issue that arose fairly late in the piece related to [X] spending time with her maternal grandmother and the basis of that. Ms Choate’s proposal yesterday was on the basis that she be allowed to have an ongoing relationship with [X]. She wants to spend time with her; she wants to be able to communicate with her and ideally she would like [X] to live with her. Ms Choate was, for a short period, represented by Mr Donnelly but, ultimately she made her own submissions yesterday.
During the course of the current interim proceedings, a report was prepared by Dr M. Dr M was the Part 15 expert appointed at earlier stages in these proceedings. It is his fourth report in the matter so Dr M is intimately acquainted with the circumstances of this family and has worked very closely with the family since the matter first came before the Court. In terms of history, I think the other history that I should give is to incorporate the background and history given in my previous reasons for judgment in this matter.
The other relevant evidence, of course, is the evidence provided by
Ms B, a clinical psychologist who has been working with [X]. Ms B’s reports are referred to in the chronology and in Dr M’s reports. In any event, I think that the salient facts are that there has been a tremendous amount of involvement by Ms B, by Dr M and by the Court in this matter.
Final orders were made in November 2011. Reasons were published. Within a few months of the contact referred to in those orders taking place, problems arose. Contact apparently ceased from 30 June. As I said, the mother filed a contravention application, the father filed an application seeking to discharge orders. Ms Power was urgently reappointed as the Independent Children’s Lawyer and back in August I made orders suspending the mother’s time and contact and communication. In October, Dr M was re-appointed. His report was released at the end of November and that’s what brings the matter before the Court today.
By way of brief summary, the father’s concerns are set out in his affidavits. I will refer to them very briefly. He raises concerns in his affidavits about the mother breaching orders of the Court; the mother having inappropriate contact with [X], as well as behaving in an inappropriate way with [X] and her friends. He raises concerns about the mother’s denigration of the father to [X] and he raises concerns about [X]’s self-harm.
Many of the father’s concerns, whilst not tested in cross-examination as yet, seem to be corroborated by admissions made either by the mother or [X] to Dr M or so far as the mother is concerned, to the Court. For example, the mother in Court has more than once acknowledged that she has had regular telephone contact and other contact with [X] contrary to the orders that I have made. Dr M’s report, to which I will go into detail, highlights a number of other concerns quite apart from those raised by the father.
To be fair, the mother raises concerns about [X]. Obviously the concern of not being able to have the relationship with her that she feels that [X] needs. She’s concerned about whether the father is adequately supervising her, given an occurrence that happened at a party. She is very much concerned about [X]’s self-harm, an uncontested fact which is referred to in the affidavits in the report.
Dr M’s report highlights a number of other concerns. He was concerned about [X]’s deteriorating mental health, about her self-harm, about her reticence to speak with him in what he described as her highly reactive mood. In his report, there were a number of very significant paragraphs that I will simply incorporate into these – my extempore reasons. For example, paragraphs 38 to 45 which are both quite insightful about [X] but quite disconcerting as well. He expresses an opinion at paragraphs 47 to 52. Again, I incorporate that. And then, of course, he makes his recommendations at paragraph 54. He recommends that all contact and communication between [X] and the mother be discontinued.
He described the relationship between [X] and her mother as remaining enmeshed and, in particular, he was quite concerned about this. He was concerned about [X]’s deteriorating mental health and linked this, at least in part, not just to developmental issues relating to [X]’s age and the separation but to the contact with her mother. Dr M also expressed concern about the mother’s mental health as well, particularly in circumstances where the mother had completed her DBT program in February. And in any event, he described her as lacking insight into her own actions, that her parenting capacity was impaired and that clearly she was personality disordered.
The significance of this is that clearly it is events that have happened between the final orders made last year and the report that caused Dr M to have second thoughts, both about whether the mother was, in fact, personality disordered and, secondly, in relation to the appropriateness of the recommendations that he made and which clearly informed the basis of the previous orders. Dr M clearly acknowledged, as does this Court, that [X] has expressed views about wanting to spend time, indeed, wanting to live with her mother but urged that weight not be given to them. And that, in any event, because of the nature of [X]’s relationship with her mother, that is an enmeshed relationship, she is not in a position where the views ought to be given weight to.
He is clearly deeply concerned in his report about the absence of any capacity of the mother to change, despite the DBT therapy that she has undertaken. Dr M recommends that all contact be suspended to the extent that it is possible. From reading his report, I think he made this recommendation on the basis that there is simply no other alternative. He was, indeed, somewhat sceptical about the ability of orders to be made that would stop all communication between [X] and her mother, particularly in terms of communication by electronic medium.
When the matter came before the Court, and by way of submissions, the Independent Children’s Lawyer’s proposal and, indeed, that of the father, is that the most important thing for the Court to do was to protect [X] from the risk of further psychological harm. It was put that this was the main consideration and on the evidence before the Court, as untested as it is, the Court agreed that is the main consideration. The evidence of the communications between the mother and [X], for example, annexed to the father’s affidavits, are clearly indicative of an immature and inappropriate relationship between mother and child. The incidents that happened during contact at the shopping centre are also indicative of concerns about the mother’s parenting capacity, lack of insight into the effect of her own actions.
By contrast, it would seem, that as a result of Ms B’s therapeutic intervention and continued support of [X] that she continues to do as well as is reasonably possibly in her father’s care. There is no doubt that this is a difficult case and can I acknowledge that there is a certain degree of futility in all of this. And I think that is in effect, what
Mr Donnelly was trying to say when the matter first came before the Court a few days ago, and that is a recognition based, indeed, on what Dr M says that at some time in the future, possibly as early as 16, that [X] will make her own decisions, that she will exercise her autonomy and decide for herself where she is going to live and what communications she will have.
But Mr Donnelly’s submission was, troubling and is not accepted by the Court from the perspective that whatever may be the case when [X] is old enough to exercise her own autonomy, the fact is that at the moment there is a clear risk of psychological harm that stems from spending time with her mother. The evidence of the experts is overwhelmingly clear in this regard. The mother’s inability to realise this and to respond appropriately to it is one of the great tragic circumstances of this case. Nobody can change, indeed even predict what [X] is going to do when she gets older.
So, Ms Choate, what I am going to do is I am going to make orders in accordance with the minute of order that was proposed by
Mr Raymond. In other words, I’m going to discharge the orders for communication and contact.
I have made certain orders. I should explain that I have preferred the father’s restraint on communication over that the Independent Children’s Lawyer and, indeed, to some extent even over that of Dr M. I do so on the basis that there does need to be some accountability. We live in a world where communication between people is both increasingly easy but complex and fraught with potential risk. If the mother is not restrained from all forms of communication, it’s highly likely on the facts of this case and having regard to the history of this case that the mother will see it as an opportunity for her to continue to communicate with [X]. And that, of course, is at the heart of the risk of psychological harm that’s identified by Dr M.
Accordingly, even though there is the possibility – indeed, some would say the likelihood that the order may be breached – there needs to be some accountability for this. To the extent that it is the mother that is initiating the contact, she needs to understand that she may be held accountable for that.
I have also made the order proposed by the father for contact between [X] and her maternal grandmother who I understand, and it seems to be uncontentious, is unwell. It would seem, at least according to the mother, that the family relationships are in a state of flux and, perhaps, fraught with difficulty as, indeed, they seem to have been throughout the life of this case. Nonetheless I’m satisfied that the father will do everything he can to facilitate [X] spending time with her grandmother. In the circumstances those orders are appropriate. The orders I am making are interim orders. I appreciate that they are final in their nature. Nonetheless, the lengthy history of his matter warrants the fairly extreme measures being taken in this case.
It is appropriate, however, that I set it down for a final hearing to give the mother, if she so chooses, the opportunity to test the evidence of both the father and of Dr M. To this end, I’m proposing to set this matter down for final hearing on 12 and 13 September 2013.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Altobelli FM.
Associate:
Date: 18 February 2013
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