Jasper and Montrose

[2009] FamCA 83

FAMILY COURT OF AUSTRALIA

JASPER & MONTROSE [2009] FamCA 83

FAMILY LAW – CHILDREN – death of applicant mother – application by family friend to intervene granted – family report – who involved in process – interim residence and orders for time with intervener and another family member – referral of child for grief counselling and to CAMHS

Family Law Act 1975 (Cth)

FATHER: Mr Jasper

INTERVENER: Ms Montrose

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9578 of 2007

DATE DELIVERED: 14 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 14 January, 2009

REPRESENTATION

THE FATHER: In person

SOLICITOR FOR THE INTERVENER:

Ms. Jenkinson

Macgregors Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Dr. R. Alexander

INDEPENDENT CHILDREN’S LAWYER Marshalls & Dent

Orders

1. That MS A MONTROSE have leave to intervene in these proceedings and leave to file an application for final orders, an affidavit sworn by her on 13 January, 2009 and an affidavit sworn by E Montrose on 13 January, 2009.

2. That until further order the child … born … December, 1994 live with the father at B PROVIDED THAT :

   (a)the father be in substantial attendance at all times;  and

   (b)the father’s friend, Ms G, be in substantial attendance during weekends on which the child is with the father and, in addition, at such other times as she can arrange and this order is made with the consent of Ms. G.

3. That until further order the father undertake random supervised drug screens as requested by the independent children’s lawyer and undergo a drug screen within 48 hours of a request and provide the results to the independent children’s lawyer as soon as practicable thereafter. 

4. That as soon as practicable the father arrange for the child to see a grief counsellor at Mercy Western Grief Services or another grief counsellor nominated by the independent children’s lawyer  AND THE COURT NOTES  the independent children’s lawyer has obtained a referral to Mercy Western Grief Services. 

5. That until further order the child spend time with her maternal step-grandfather Mr P on each fourth Sunday from 10:00 am. until 5:00 pm., commencing on 25 January, 2009 and Mr. P collect the child from and return her to the father’s residence in B or such other place as the father and Mr. P agree. 

6. That the child spend time with the intervener, MS A MONTROSE, on each third weekend from 10:00 am. Saturday until 5:00 pm. Sunday, commencing on 31 January, 2009, and changeovers be at McDonald’s Restaurant in B or such other place as the parties agree. 

7. That the independent children’s lawyer arrange an urgent referral from the child’s general practitioner at B Medical Centre for a psychiatric assessment at Child and Adolescent Mental Health Service (CAMHS) and the father do all things reasonably necessary to ensure the child attends for assessment and any subsequent treatment or therapy recommended by CAMHS. 

8. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released by 26 June, 2009 and IT IS REQUESTED :

   (a)that Ms. G be included in the Family Report process, in addition to the parties;

   (b)the family consultant speak with Mr. P (the child’s maternal step-grandfather) and Mr. S (the child’s maternal grandfather) and it be in the absolute discretion of the family consultant as to the role Mr. P and Mr. S play in the family report process;  and

   (c)the family consultant be at liberty to speak with L and/or E Montrose and involve them in the family report process and decisions as to this be in the absolute discretion of the family consultant.

9. That pursuant to s.91B of the Family Law Act 1975 the Department of Human Services Victoria be requested to intervene in these proceedings.

10. That the independent children’s lawyer is requested to provide to the Department of Human Services :

    (a)copies of all affidavits filed in these proceedings;

    (b)copies of the two Family Reports prepared in the earlier proceedings;  and

    (c)the transcript of evidence given by Ms. K and the father on 24 December, 2008;

    (d)the reasons for judgment of the Honourable Justice Young of 24 March, 2008;  and

    (e)the reasons for judgment delivered this day. 

11. That each of the parties be and are hereby restrained by themselves, their servants and agents from denigrating the other or members of the other’s family in the presence or hearing of the child, and from allowing any other person to do so.  

12. That the hearing this day is deemed to be the first day of a less adversarial trial, as described in Practice Direction No. 2 of 2006.

13. That all extant applications be otherwise adjourned to 10:00 am. on 6 July, 2009.

14. That either party have liberty to apply on short notice to the other party.

15. That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

16. That the reasons for judgment this day be transcribed and copies made available to the parties.

17. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9578 of 2007

MR JASPER

Father

And

MS MONTROSE

Intervener

REASONS FOR JUDGMENT

1. This case concerns a child, who was born in December 1994.  Everyone involved in the case calls her T and I will do likewise.  T’s parents were in a relationship for some time prior to her birth.  They married in 1994, separated in 2003 and were divorced in 2006.

2. There have been earlier proceedings and family reports prepared in them give a flavour of the litigation which, with some stops and starts, has continued through the child’s life. The child’s living arrangements have altered not infrequently.  Since separation she has lived with her father in a number of places, sometimes with other members of his family, and also lived with her mother.

3. In proceedings between the mother and father, which resolved on 8 May, 2007, significant allegations were made by both parties.  The mother alleged that the father had been sexually abusive of the child – “sexually inappropriate” was a descriptor she gave to an expert preparing the family report in those proceedings.  The father expressed concern about the mother's psychiatric state of mind, she having been diagnosed as bipolar many years earlier.  Many other allegations were made in those proceedings and a lengthy family report was prepared.  It was an unhappy time for the parties. 

4. On 8 May 2007 Bennett J made final orders, by consent, in those proceedings.  The mother and father were to have equal shared parental responsibility for the child.  The child was to live with the mother and spend time with her father on Sundays (from 10:00 am. to 5:00 pm.), on special days like Fathers’ Day and birthdays, and at such other times as were agreed.  There also was to be contact by phone and email, letters, gifts and cards.  It is notable that there was no provision for overnight or lengthy time with the father. 

5. From May 2007, the child lived with the mother and saw her father.  That arrangement broke down in contested circumstances but the court can find an argument about arrangements for New Year’s Day 2008, and the child’s movement between her parents, led to the father not spending time with the child, who stayed living with her mother.

6. In October 2008 the mother was hospitalised, probably as a result of psychiatric illness.  She arranged for the child to live with the Montrose.  Earlier, I granted an application by Mrs. Montrose to intervene in these proceedings and I will not repeat what I said then about the relationship between the Montroses and the mother, save that they were trusted and supportive friends of the mother.  The father knew nothing of the mother’s hospitalisation or the child’s placement with the Montroses.

7. When the mother came out of hospital, she went to live at the father’s home.  They were no longer in an intimate relationship, and the evidence suggests they had not been at all close earlier in the year.  Nevertheless, on her discharge from hospital on 24 November, she went to the father’s home, where she stayed until about 12 December. 

8. On 26 November the father sought a recovery order, to take possession of the child (from the Montroses) and orders for her residence.  That was heard ex-parte at Sunshine Magistrates’ Court.  An interim order was made for the child to live with the father and a recovery order issued to take possession of her (from the Montroses) and deliver her to the father.  It must be said the material before that court was extraordinarily scant.  It included a handwritten note, said to be written by the child’s mother, in which she said that she wanted the child to live with the father.  It also included a letter (a copy was tendered before Young J. in this court, on 24 December) which, on its face, is signed by the mother and father.  It is written in what might be called quasi-legal language as if its authors are striving to sound formal, and official.  The addressee is a named Department of Human Services worker, but the postal address for her is the Montroses’ home address.

9. It is clear that DHS has been involved with the family in the past.  There is mention of it in earlier documents.  Evidence given by the father before Young J, on 24 December, and submissions made to me today is of DHS having ongoing involvement with the family until very recently;  by that I mean involvement since the child went to live with the father in November 2008.

10. Members of the Australian Federal Police executed the recovery order.  The child was taken from the Montroses’ home to the father’s home.  It is probable she had had little or nothing to do with him in the preceding eleven months. 

11. The mother left the father's home on 12 December.  Presumably, until then, the child lived in that home with both of her parents.  On 17 December the mother filed an application in this court, naming the father as the respondent.  In that application she sought that a recovery order issue to collect the child and that the child live with her.  The application sought that the father spend time with the child as set out in the earlier orders. 

12. With that application the mother filed an affidavit sworn by her, in which she deposed that she had been pressured by the father into writing the note and the letter shown to the magistrate.  She deposed to attempts to arrange for the child to live with her after she moved out of the father's home and of the father’s refusal to agree.  She raised, again, the allegation of sexual abuse made in the earlier proceedings.

13. Sadly, in late December, within a few days of swearing that affidavit, the mother died.  She was a few days short of her 43^rd birthday.  There is no death certificate before the court.  Counsel for the independent children’s lawyer has made inquiries of the State Coroner's office.  The circumstances of the mother’s death are being investigated, but this court can say nothing more than that.  

14. The mother’s application came before Young J on 24 December, three days after the mother’s death.  Without her, there was no application and the court granted the father leave to make an oral application for an order that the child live with him.  Young J ordered that, until today, the child live with the father at B.  He was to be in substantial attendance at all times and was to encourage or facilitate contact, by telephone or in person, between the child and her extended maternal family, who reside in the Gippsland area.  A note to the order stated that the order which provided for the child to live with the father until the adjourned date was made on the basis that the father’s partner, G, would at all times remain with, and reside with, the father and the child. 

15. His Honour heard evidence from the father that day.  He also heard evidence from Ms K, a family consultant employed by this court.  Both sets of evidence were to be transcribed.  Inquiries made at my request have shown that transcripts were ordered but are not yet available;  no doubt the transcript service, like much else, slows down in early January.

16. The father was directed by Young J. to bring the child to court with him today, and he was also asked to bring Ms G with him.  He did so.

17. It is put by counsel for the ICL that at the hearing before Young J. the father told the court that Ms. G was living with him.  “Living with” may mean different things to different people.  Ms. G has now sworn an affidavit which is filed in the proceedings and deposes to living with other family members.  The father now says she spends a few nights a week, and/or “sometimes the weekend” with him.  It is clear they do not live together as Young J. envisaged, his order being premised on them sharing one home. 

18. Since Young J’s orders, Ms G has spent a lot of time at the father’s home.  She has deposed to some of the things she does with the child.  Importantly, the evidence before the court on the last occasion, and today, is that the child has a very good relationship with Ms G.  It is a warm, affectionate and appropriate relationship.  It is an important relationship for a child of this child’s age and particularly important given the turmoil in her life and the recent loss of her mother.

19. Despite that turmoil and loss, the child is lucky that a number of adults care about her and want what they think is best for her.  That said, they do not agree on what is best for her.  Amongst these are members of the Montrose family : Mr. Montrose, who is now separated from Mrs. A Montrose, but still supports the child, his wife, who was granted leave to intervene today, and their adult daughter, Ms E Montrose, who has known the child since she (Ms E Montrose) was in grade 6 and appointed the child’s “buddy” when the child started prep.  Another is Mr. P, who has also sworn an affidavit.  He is the child’s de facto maternal step-grandfather;  he lived in a relationship with the child’s maternal grandmother for about 12 years.  The child also has a maternal grandfather.  Ms. K’s evidence was that the child has good relationships with both maternal grandfathers and the relationships are important to her.  The child also valued her relationships with members of the Montrose family. 

20. It is often difficult for adults who are grappling with the aftermath of a tragedy such as the loss of the mother, to focus on the child and see the world through the child’s eyes, rather than their own.  A child can have strong and important relationships with a range of people.  The child can be loved, supported and nurtured by a range of people.  Blood connections may be important but they are not everything. 

21. The parties have been able to agree on a few things today, although there are a few complicating matters.  The ICL has tendered a minute of orders sought, which she went through in some detail.  In broad terms, Mrs. Montrose agreed with most of it. 

22. The order proposed by the ICL would have the child living with the father, pending further order, at the property in B, a home with which she is familiar as it was the family home until her parents separated.  I understand the father now rents the property from the mother’s uncle and it has been his home for some time. 

23. The ICL sought an order that Ms. G remain with and live with the father at all times the child lives with him.  Alternatively, she sought an order that the father’s time with the child be conditional on Ms. G’s presence.  That order is supported by the intervener and discussion about it has consumed a lot of this hearing time. 

24. The father is content, as I understand it, to be in substantial attendance when the child lives with him.  In a note that he handed up in response to the ICL’s proposal, he said it was his aim, “as it always has been, to be with [the child] and provide a safe and loving environment”. 

25. The child has expressed the wish (to Ms. K and the ICL) to stay with her father but see the Montroses and other members of the extended maternal family.  If residence with her father is conditional on Ms. G living with them, the condition will fail.  It is not for the court to order a person to live with another person, to precipitate Ms. G into a relationship with the father neither sought nor offered.  It would be different if the evidence were of the father and Ms. G living together in an ongoing residential domestic relationship.  The child is 14 and weight needs to be given to her wishes.

26. If Ms. G consents, interim residence orders will provide that she be in substantial attendance during weekends when the child lives with the father and at such other times as she can arrange, consistent with her work and personal commitments.  That will offer a measure of support and security to the child and allow her to stay in her father’s home for the moment, as she wishes.

27. The father has said today that he is prepared to undertake random drug screens.  His evidence about drug screens has caused the ICL concern.  An earlier order required both parents to undergo drug screens.  The father undertook one, recently.  Giving evidence before Young J., he said the screen was negative but that he had left the result in his car.  His evidence today is that the screen was positive, which he attributes to passive ingestion of marihuana when the mother smoked at his home in November and December.  According to him, he has not smoked for some years.  Ongoing testing can put that matter to rest.

28. The father is now prepared to arrange for the child to see a grief counsellor.  The ICL has obtained a referral.  It is easy for adults to think children are getting enough support from family and other people they trust and love, and do not need assistance from an expert, who is not a family member and does not know them.  The skill of a professional grief counsellor is in providing a safe space in which a bereaved person can explore emotions.  I am satisfied the child should have that opportunity. 

29. The ICL is very concerned that a referral from the child’s GP was obtained on 18 November, to see a psychologist.  The referral noted the relevant issues as suicidal ideation and suicidal intent.  The court cannot know what the child’s time with her mother was like, in the period just prior to her mother’s hospitalisation.  It does not know what gave rise to that referral. 

30. The father has told me that he discussed this referral with someone at DHS who, he said, told him they did not think it was necessary.  One would want a worker or psychologist to know a lot more about the child before offering an opinion, in the child’s absence, that would be persuasive.  From the DHS file inspected by the ICL there is no indication the child has spoken with a worker or other professional since her mother’s death and no note of any such discussion with the father. 

31. The DHS file has been subpoenaed and I am told there is no reference in it to any DHS involvement since August 2007.  That is inconsistent with the father’s evidence.  It may be that there is another file, in another DHS office.

32. A DHS worker was subpoenaed to attend court today and it is a cause of concern that the worker took (on what the court is told) a cavalier attitude towards that subpoena, contenting herself with telling the ICL that as she had done nothing in respect of a notification he made on 23 December, there was no point in her attending.  I was persuaded not to issue a warrant to bring her before the court but the failure to attend may need to be taken up elsewhere.

1. I will ask the ICL to arrange the implementation of the GP referral.  The court has a deal of respect for CAMHS, and staff will not implement therapeutic intervention unless necessary.  If a preliminary assessment satisfies them that intervention is not necessary, that will be the end of it.  If the child does need assistance, she will get it. 

2. I stress – to the father – the importance of ensuring the child sees the grief counsellor and attends for psychological assessment.  His actions in this regard will be one measure of his parental capacity. 

3. Dr. Alexander has been sufficiently silver-tongued to prevail upon the court counselling section to provide a family report.  Given the history of this matter, I am satisfied today’s hearing should be considered the first day of what is often called “a less adversarial trial” and a family report should be the next step. 

4. The father would like the family reporting process to include only him and the child and, possibly, Ms. G.  He said, as he said to me earlier, that Mr. P and the Montroses are “not family”.  They are not biologically related to the child but that is not the point.  The Family Law Act 1975 requires the court to take into account a child’s relationship not only with his or her parents but with other people of importance to him or her. As Mrs. Montrose has been given leave to intervene, it is obviously vital that she is part of the family reporting process.

5. The family consultant will see the parties (the father and Mrs. Montrose) and Ms. G.  She will speak with Mr. P and Mr. S and then determine what further role, if any, they should play in the process.  The family consultant may speak with Mrs. Montrose’s husband and daughter, but that is a matter for her.  If the family consultant thinks it appropriate to observe any or all of the four named adults with the child, that will be arranged. 

6. That brings me to the question of the time the child should spend with Mrs. Montrose and Mr. P in the meantime.  This is obviously a stressful time for the parties and their families.  The father has expressed a number of concerns about the Montroses.  He alleges they did not send the child to school when she lived with them and did not advise him when the mother was hospitalised.  He is aggrieved that he had to get federal agents to retrieve the child.  While he said he would let the child see the Montroses if and when the child saw fit, it is clear he does not support an order for any structured time with Mrs. Montrose and it is unlikely he would foster the relationship, absent an order. 

7. The child has made it clear to the ICL that she wants to live with her father.  She also made it clear she wants to see the Montroses and she wants to see Mr P.

8. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents and others of importance to them; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

9. When deciding what parenting orders to make it is the best interests of the child which are the paramount consideration.  In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

10. Amongst the additional considerations set out in s.60CC(1) are the views of the child and I am satisfied weight needs to be given to the child’s views.  She is fourteen.  She is a teenager and it would be contrary to law to ignore her expressed views.  They are not determinative but they are important.  The child wants to see the Montroses and Mr. P;  she has told the ICL and Ms. K this.  Orders will allow her to do so and to spend time at weekends with her father, as well.  She will be at school during the week, once the holiday finishes, and school will take up a lot of her time.  She may be seeing grief counsellors or psychologists and those appointments will need to be scheduled in.  I am satisfied orders should ensure she has plenty of time with her father. 

11. For those reasons I will order that, until further order, the child spend each third weekend with Mrs Montrose.  I see the order proposed by the ICL refers to E Montrose as well, but as E is not a party to the proceedings, the order will refer only to Mrs. Montrose.  Mr. Montrose and E and their family and friends can spend time with the child on the weekends when she is with Mrs. Montrose but they will not be named in the orders.  I will fix a starting date which will allow the father to have the holiday with the child and Ms. G that they have arranged. 

12. In relation to Mr. P, I have heard the father’s submission but I am satisfied the child should spend time with him on one Sunday a month, and the time should not be at the father’s home.  If the child is to live with him he will need to recognise her need for autonomy as she advances through her teens. 

13. The first weekend with Mrs Montrose will be the weekend of 31 January, from 10.00 am on Saturday until 5.00 pm on Sunday.  Changeovers will occur at McDonalds in B or such other place as the parties agree.

14. In relation to Mr P, the first Sunday will be 25 January and each fourth Sunday thereafter. 

15. The father’s address for service on the last order was S.  The sealed copy of these orders will be sent there, the father confirming it remains his address for service.  I have made it clear that it is his obligation to ensure correspondence sent to that address is read swiftly;  it will not be open to complain that, as he doesn’t live there, he didn’t receive documents or advice about court appointments for days or weeks after they were sent.

16. I propose to act on Dr Alexander’s submission that a family report be released by 26 June, and adjourn the case for mention before me (in court parlance, a LAT continuation) on 6 July. 

17. I will restrain both parties from denigrating the other in the presence of hearing of the child, and from allowing anyone else to do so.  I make no finding it is occurring but I am aware of the allegations in these and the earlier proceedings.  The child needs to live in an environment where the people dear to her put her interests ahead of theirs and desist from embroiling her in their conflict. 

I certify that the preceding
49  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.