IWD and JAD - [2005] FMCAfam 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IWD & JAD

[2005] FMCAfam 206

FAMILY LAW – Children – where mother has residence orders – children living with father – mother applies for recovery order – recovery application dismissed – wishes – mother has serious mental illness and refuses treatment – mother fails to attend family report and final hearing – residence orders and injunctions made in father’s favour.

Family Law Act 1975

B and B: Family Law Reform Act (1997) FLC 92-755

Applicant:

IWD

Respondent:

JAD

File Number:

PAM2598 of 2001

Judgment of:

Ryan FM

Hearing date:

9 March 2005

Delivered at:

Parramatta

Delivered on:

9 March 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr D. McKay

Solicitors for the Applicant:

Malouf Solicitors

Respondent

No appearance

ORDERS

All prior parenting orders discharged.
The children Jacob (not his real name) born 1989 and Samuel (not his real name) born 1995 reside with the father.
The father have sole responsibility for making decisions about the long term care, welfare and development of the said children.
The father have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
The mother is restrained from approaching the children or communicating with them unless the children initiate that contact. This is an order for the children’s personal protection.
I stay the operation of orders 3, 4 and 5 for 6 weeks from today.
The parties have liberty to apply to vary or discharge orders 3, 4, and 5 on giving 14 days notice. Liberty pursuant to this order expires 6 weeks from today.
The solicitor for the applicant to serve a sealed copy of these order by ordinary pre paid post to the mother’s mailing address in Penrith. Service to be effected in 7 days.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2598 of 2001

IWD

Applicant

And

JAD

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

These proceedings started when JAD (“the mother”) filed an application for a recovery order at Katoomba Local Court in August 2003. The mother was seeking to enforce parenting orders made in February 2001. Essentially those orders provide that the parties' two children, Jacob, born in 1989, and Samuel (not their real names), born in 1995, live with their mother and have liberal contact with their father. These orders have been registered in this court[1], and the court thus has jurisdiction to vary them.
[1] Exhibit B
Although the orders provided that the children live with their mother, from about September 2002 the children lived with their father. Attempts made by both parties to maintain the children in their mother's care failed. Central to her failure to keep the children in her care is her inability to manage her mental illness.
The mother has been hospitalised on a number of occasions after the consent orders were made. Sadly, the situation from the children's point of view was reached where neither child could cope living with their mother.
After the children moved to their father, the mother left Australia in November 2002 for England, her country of origin. She returned to Australia in February 2003. After limited contact with the children, mainly by telephone, she commenced the recovery action. Her actions were a shock to the father and children. At no stage had the mother indicated that she wanted the children to again live with her full time. Not surprisingly, the learned Magistrate declined to make a recovery order, and the proceedings were transferred to this court.
Because the application for a recovery order has not been formally discharged, it will be dismissed.
Shortly after the application for recovery order was filed, the father applied to this court for parenting orders, basically seeking to reverse the 2001 orders.
By consent, in October 2003, when both parties were represented, interim parenting orders were made. The orders made were as follows:
1.That the children, Jacob born in 1989 and Samuel born in 1995 reside with the father.
2.That the mother have contact with the children at such times as agreed.
3.That the mother have telephone contact with the children between 7     pm and 7.30 pm each Tuesday, Thursday and Sunday evening.
4.That for the purposes of telephone contact the mother telephone the    children on the home landline telephone number provided by the    father and the father ensure that the children are available at the above times to the land line telephone number for the phone contact.
5.That for the purposes of telephone contact the father provide to the mother his home landline number and in the event of any change to this number the father forthwith provide the mother with his new home landline telephone number.
6.That each party is restrained from denigrating the other party in the presence of the children and is restrained from allowing any other      person to denigrate the other party in the presence of the children.
7.That the mother and father each forthwith notify the other parent if     either of the children are seriously ill or injured, requiring hospitalisation.
8.That the father provide to the mother as soon as practible after they    are received copies of all school reports, any other reports on school    progress and behavioural issues and other school circulars in      relation to the children.
In summary, the orders provide that the children continue to live with their father, have contact with the mother at agreed times and a structure for telephone contact. The parties were restrained from denigrating each other.
The mother was unable to maintain telephone contact or abide by the order that she not denigrate the father. Not only has she denigrated him, she has decided that she would also denigrate his partner and the children. Her calls were irregular and increasingly the children avoided her.

Procedural fairness

When the matter was listed for hearing in August 2004, the mother was represented by Lamrocks, Solicitors. They had acted on her behalf for about 12 months. Thus the mother knew that the matter was listed for trial and that she needed to file affidavits and attend the hearing.
Relevantly, she knew that the court had ordered that an earlier family report would be updated.
That is the last contact that the court has had with the mother. Her solicitors have subsequently filed a Notice of Ceasing to Act. Orders have been sent from the court to the mother at her last known address.
In the family report, Mr Sullivan details exhaustive attempts made to encourage the mother's participation for the second report. He called her mobile telephone, wrote to her at her last known address and contacted solicitors who he understood she may have instructed. None of these attempts resulted in personal contact with the mother.
In February 2005, the father's solicitors wrote to the mother at her last known address, providing sealed copies of his amended application and affidavit. The correspondence reminds her that the matter is listed for hearing at 10 am today.
Because the mother had not arrived at 10 am, I stood the matter down till 11.30 am on the off-chance that she may arrive late. The mother did not attend. I contemplated whether I should adjourn the hearing and give her another chance to participate however decided against doing so. The mother has had ample opportunity to present any case that she wishes to make in relation to the orders concerning her sons. Not only has she abandoned contact, she has also abandoned these proceedings. Adjourning the case will merely add to the father’s legal costs, to no purpose. I have no doubt that if I adjourned this hearing, the court would reconvene in exactly the same configuration as today. That is, with the father and his lawyers present, the court putting aside time to hear the case and no appearance by the mother. Notwithstanding her failure to attend, he matter must be brought to an end.

Relevant law

Residence and contact orders are parenting orders. The applicable law is well settled. Proceedings of this type are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.

Determining the child’s best interests

The evidence in support of the father's application for residence is overwhelming.
The parties separated in December 1999. After separation, the father attempted to assist the mother in her quest that the children live with her and have regular contact with him.
Until September 2002, the children lived with the mother. However, these arrangements broke down as a consequence of the mother's inability to recognise that she has a serious mental illness and abide the recommendations of her treating practitioners in order to manage its symptoms.
The children have lived with the father ever since. The arrangements the father has in place for the children are completely appropriate. He married his partner, S, in March 2004 and her two daughters, Kelly (not her real name), aged 11, and Claire (not her real name), aged 9, form part of their household. The father describes a happy and well settled family home in Springwood. The father and the children have lived with Donna and her children in that home for a number of years. The home is well set out, and the accommodation more than sufficient to meet the children’s needs.
Jacob is in year 10 at a local High School, and Samuel is in year 5 at a local Primary School. Both boys are doing as well as can be expected educationally. The only disruption to school results from their distress at from their dealings with the mother. I accept the father's evidence that telephone contact has been stressful for both boys and resulted in both of them having trouble coping at school. Indeed, the father received a letter from the Department of Community Services, suggesting that telephone contact between the children and their mother stop, as it was emotionally abusive of the children.
The father acted on this advice, and changed his telephone number. This means that the mother is unable to contact them. Since then the father has observed improved performance in both children at school, and that both seem much happier. Both boys have a mobile telephone number that they could use to call their mother, should they wish. Presently they do not wish to have contact with her.
When one has regard to the contents of the children's telephone conversations with their mother, it is not surprising the boys have been distressed and their education disrupted. I highlight only two of a large number of plainly inappropriate telephone calls. For example, on

9 September 2004 the mother left the following message on the home telephone answering service:
“Oh, hello. The home of IWD, Donna, Sarah, Jacob, Samuel, Itchy and Scratchy. How are you all going? It's really nice to know. What the fuck do you think you're doing, because you know what? You are going to lose in the end. You are going to lose. Go on, Donna, go on, IWD, clean the nits out of your son's fucking hair. Sarah, she doesn't live there. Guess Tony's spiking drinks with cocaine. Fine, darling, you know? Who the fuck do you think you are. You're fucking nothing but shit, you fucking pieces of shit”.
Another message left on the answering machine on 24th of September 2004. Jacob had already dealt with his mother twice that evening. The message is to the following effect:
“Well, slut, tell poofter boy he can have the boys. Don't fucking want them. Anything that comes from him isn't worth fucking having or fucking knowing, as well as his whole fucking family. As well as your fucking extended family. You dirty, fuckless, fucking useless slut. Fuck off. Don't want them. Not fighting in Court any more. Have them. Don't want to see them. This is not fucking worth it. Fucking have them. My daughter, she's nothing but a losing fucking junkie. Jacob is nothing but a foul mouth little piece of shit since he went to live with you. Samuel, live with it, mate. Have it, and fucking be on, you fucking cunt.”
No children should be exposed to this style of language. No children should be exposed to these sentiments, irrespective of the foul language.
The children talked to the court counsellor about their feelings about contact. The court counsellor reports:
“Jacob commented that he would like to motivate his mother to maintain her medication and for her to manage her life so that Samuel could have contact with his mother. He believes that Samuel wanted to have contact, but is always very upset and distressed by his mother's behaviour or statements, and he wanted to protect Samuel from the verbal abuse. He noted that since he has not had contact with his mother, he has not worried about the situation and has not felt so angry or guilty. He stated: "It has been such a relief not to hear her abuse."
He is concerned that since he has stopped talking to her on the telephone, his mother has started to say the same terrible things to Samuel. He commented that Samuel has started to tell her to stop, or when he gets too upset he would hang up, but then she would continue to telephone and leave obscene messages on the answering machine.
Jacob is saddened by the relationship his mother has with Samuel and himself. I note that he did not want to fight and be angry with his mother and be made to feel guilty. He commented that he is happy now that he is not hearing his mother: "Going off at me" and is glad that the telephone number has changed. He considered that when his mother is well he and Samuel could see her again, or with somebody else to supervise and monitor her behaviour.
He considers that Samuel misses his mother, but he is protective of his brother and does not want Samuel to be alone with his mother and exposed to her tirade of abuse about the family.”
Concerning Samuel:
“Samuel commented that he really did not want to think about negative things about his mother. He considered that he really did not want to have contact with his mother when she is abusive, and complained about everyone and blames everyone. He noted: "It feels weird and different" that he has not spoken to his mother for a long time, and would prefer not to talk to her while she keeps abusing them, and: "It gets pretty bad."
Samuel was asked to consider if contact could be supervised by an adult to assist with his contact with his mother. He commented that supervised contact would mean: "That someone would make sure that mum doesn't talk bad stuff about everyone", and it could be one of the ways for him to see his mother.
He considered that he does not care if Jacob does not see his mother, and does not expect him to contact him on contact if supervised, as his mother has said terrible things to Jacob. Samuel considered that if his mother was better with treatment, that he might consider some type of contact, but he would prefer it to be supervised.”
These children have a highly traumatised relationship with their mother. Jacob, at nearly 16, has drawn a line recognising that he cannot cope with his mother when she is not coping with her mental illness. For too long Jacob has been the focus of his mother's abuse, and it is understandable that this boy desires no contact with her. Jacob’s wishes are primarily driven by his own experience of her. At nearly 16 years old, Jacob is entitled to have his maturity acknowledged, and for the court to give his wishes significant weight. His wishes warrant more than relief from the prospect of contact with the mother. They warrant an injunction that restrains her from contacting him unless Jacob himself wishes to have contact.
The reality is that with her condition uncontrolled, unless there are clear constraints about contact with the children, the risk is too high the mother will approach the children at the school or elsewhere in circumstances that are likely to be highly distressing for both children.
Samuel wants to have a relationship with his mother. However he has begun to realise that a relationship with her when she is unwell comes at too high a price for him, and the family. He is unable to deal with her intimidating and abusive conduct and cope with the rest of his life. Contact with the mother is distressing for him and his family. The father often seeing Samuel retreat to his bedroom in tears after he has spoken with his mother.
The children’s schools observe that the children's contact with their mother was destabilising their ability to do well at school. Absent telephone or other contact with the mother and their school performance improves.
From Samuel's point of view, contact with his mother is emotionally abusive and damaging. Although the child yearns to have a relationship with his mother, he does not fully appreciate the damage done emotionally and psychologically of contact when she is not well. Although the vestiges of his desire for contact continue, Samuel’s desire is fanciful because it is predicated on contact when his mother is well. She has rejected assistance from the mental health professional for too long. Even when involuntarily admitted to a unit, she could not maintain compliance after her discharge. Samuel's aspirations for a relationship with his mother when she is well is highly unlikely to come to fruition.
The concern I have is that any form of contact between the children and their mother, unless there is the unequivocal evidence that she is medicated will result in chaos in the children's lives and seriously undermine the father’s capacity to meet the children's needs. It is plain from the recent records[2] from the Department of Justice and Health, that the mother presents a real risk of harm to the father. In addition he has received numerous threatening telephone calls, threatening harm to him and his partner.
[2] Exhibit D
As at 8 February 2005, notwithstanding that she has already been twice breached for failing to comply with apprehended violence orders for the father's protection, the mother continues to threaten to harm the father. There is a real risk that if contact is resumed that the mother will attack the father.
Before I would be prepared to order contact I would need to be satisfied that the children wanted contact and that contact could be resumed without exposing other family members to family violence.

I am far from satisfied that this is achievable.

The father should have an order for sole parental responsibility for the children. He needs to be able to make any necessary decisions without the difficulty inherent in obtaining the mother’s agreement. The children’s best interests require that the children live with him, and that the mother is restrained from approaching either child unless initiated by the children. This is an order for the children’s personal protection. This outcome gives the father more robust relief than he sought. Because the mother, to an extent, may be taken by a surprise by the order concerning long term parental responsibility and the injunction, I will give her the opportunity to apply to have those orders discharged. She will have six weeks from today within which to re-list this matter and show a basis why these orders should not become final. If she does not re-list the matter, then those orders will be final through the effluxion of time.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S Mashman

Date: 28 April 2005