Jefferson and Bowe

[2014] FCCA 1583

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFERSON & BOWE [2014] FCCA 1583

Catchwords:
FAMILY LAW – Parenting orders – parental responsibility – time spent – whether the mother suffers from condition that requires her time with her child to be supervised.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Applicant: MR JEFFERSON

Respondent: MS BOWE

File Number: DGC 2609 of 2012

Judgment of: Judge Small

Hearing dates: 17, 18, & 31 March 2014 & 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Dandenong

Delivered on: 25 July 2014

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Counsel for the Independent Children's Lawyer: Ms Mary Stavrakakis

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders in relation to the child X born (omitted) 2011 (“the child”) are hereby discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The child shall spend time and communicate with the mother at a registered children’s contact centre, or supervised by a professional contact supervisor, on such terms and at such times as the contact centre or professional supervisor might stipulate.

5. The mother shall be responsible for all costs associated with her spending time with the child.

6. Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care, and the mother shall authorise any medical practitioner who treats the child to consult with the father.

7. The father shall authorise any child care centre, kindergarten or school in which the child is enrolled to provide to the mother at her expense all school reports, photographs, newsletters and the like.

8. The mother is hereby restrained from attending any child care centre, kindergarten or school in which the child is enrolled without the consent of the father first obtained in writing.

9. The appointment of the Independent Children’s Lawyer is hereby discharged.

10. All outstanding applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2609 of 2012

MR JEFFERSON

Applicant

And

MS BOWE

Respondent

REASONS FOR JUDGMENT

Introduction

1. X was born on (omitted) 2011. He is 3 years old. His parents, Ms Bowe and Mr Jefferson, separated in November 2011 and X lived with his mother until 20 July 2012.

2. On that date, the Department of Human Services (“DHS”) removed X from her care and placed him with Mr Jefferson, where he has remained ever since.

3. The reason for DHS removing X was that they had serious concerns about Ms Bowe’s emotional and psychiatric health.

4. Since orders were made by consent between the parties on 30 November 2012, X has been spending time with his mother for two hours each fortnight, supervised by a third party, and currently at a child contact centre operated by Family Life at (omitted) (“Family Life”).

5. Mr Jefferson wants the current situation to continue until Ms Bowe engages with a psychologist and can demonstrate that she is able to look after X appropriately.

6. Ms Bowe does not accept that she has, or has ever had, a psychiatric condition, and wants X to return to her care. Failing that, she wants more time with him, that time to be unsupervised.

Issues

1. The issues in this case are:

   a)Is it in X’s best interests for his parents to have equal shared parental responsibility for him?

   b)Does Ms Bowe suffer from any condition that would make it inappropriate for her to take care of X on a full-time basis?

   c)If the answer to that question is yes, what kind of time should X spend with his mother?

   d)If the answer to the second question is no, what kind of care arrangements are in X’s best interests?

Background

1. The parties met in 2003 in (country omitted) and married there in (omitted) 2004. Mr Jefferson had migrated to Australia in 2001 and Ms Bowe joined him on a spouse visa in 2005.

2. Their son X was born on (omitted) 2011.

3. On 7 July 2011, Ms Bowe called the police to the parties’ home after an argument between her and Mr Jefferson. The police told Mr Jefferson that they would be contacting the Department of Human Services (“DHS”) as they were concerned about X’s welfare. Mr Jefferson left the property.

4. Later that day, Mr Jefferson received a telephone call from DHS saying that if he did not return to the property to care for X, they would remove X from his mother’s care, as they had serious concerns about her emotional health.

5. Mr Jefferson returned to his home and spent the next couple of weeks looking after both Ms Bowe and X.  However, he considers 7 July 2011 to have been the parties’ date of separation.

6. After he took Ms Bowe to her local doctor in late July 2011, she was admitted to the mother and baby unit at (omitted) Medical Centre where she remained for five weeks. She was prescribed medication for depression.

7. On her release from hospital, the parties and X went back to (country omitted) for a six week holiday. However, on their return Mr Jefferson left the house on 7 November 2011 and found alternate accommodation for himself. X remained with Ms Bowe at that time. Ms Bowe stopped taking her medication on her release from hospital.

8. X spent time with his father after he moved out but Mr Jefferson was not happy with the arrangement that he says was at Ms Bowe’s whim.

9. When Mr Jefferson sought legal advice about parenting matters, Ms Bowe applied for an Intervention Order against him and X did not see his father between December 2011 and March 2012.

10. As a result of family dispute resolution in April 2012, the parties signed a Parenting Plan which provided for X to spend three hours on each of four days a week with Mr Jefferson.

11. However, Mr Jefferson continued to be concerned about Ms Bowe’s mental health and says that she often stated that she did not want X and that he should take him.

12. Mr Jefferson says that when Ms Bowe made similar statements to the maternal health and child care nurse, the nurse called DHS.

13. On 20 July 2012, DHS intervened and placed X in Mr Jefferson’s care. He has lived with Mr Jefferson and spent varying times with Ms Bowe on a supervised basis ever since.

14. The parties were divorced on 16 June 2013.

Procedural History

1. The proceedings first came before the Court on 22 August 2012 when the Father filed an urgent Initiating Application. In that application the applicant father sought orders that X live with him, that he have sole parental responsibility for X, that X spend time with his mother as agreed between the parties, and that the mother be psychiatrically assessed.

2. Time was abridged and the parties appeared before the Court on 29 August 2012 when the matter came before Federal Magistrate Curtain (as His Honour then was) in the Duty List. At that time His Honour ordered the appointment of an Independent Children’s Lawyer, the preparation of a Family Report and made an order under s.91B requesting DHS to intervene in the proceedings. Ultimately DHS did not intervene as they considered X to be safe in his father’s care.

3. The parties were able to enter into parenting orders by consent on that day providing that X live with his father, that he spend time with his mother supervised by a family friend, and that the mother be psychiatrically assessed.

4. The Family Report of Dr D was released on 30 October 2012, but unfortunately its findings were necessarily limited by the fact that Ms Bowe had not attended for assessment.

5. Further Interim Orders were made by consent on 30 November 2012 allowing for X to live with his father and for the mother to spend time with him supervised by (omitted) Community Services.

6. The mother filed her Response on 8 February 2013 seeking orders that X live with her and that the parties have equal shared parental responsibility for him.

7. On 5 August 2013 the matter came before His Honour again and a further Family Report was ordered. The proceedings were then adjourned before me on 11 November 2013 for a Directions Hearing.

8. On 8 November 2013 the second Family Report by Ms D was released to the parties. Unfortunately, Ms Bowe again had failed to attend upon the Family Report writer and thus, while the Report’s recommendations are clear, and provide for X to remain living with Mr Jefferson, they were made without input from Ms Bowe.

9. On 11 November 2013 the matter came before me with only the father, his solicitor and the Independent Children’s Lawyer present.  The mother failed to attend and an order was made for the father to have leave to proceed on an undefended basis if the mother failed to attend at the next hearing. The matter was set down for trial on 17 March 2014 with an estimated 2 day hearing.

10. The matter proceeded to trial on 17 March 2014 with both parents being self-represented, and was adjourned on 18 March 2014 with further hearing time being required. On 31 March 2014 the matter continued for a further two days with my decision being reserved on 1 April 2014.

The Evidence

1. There have been several incidents in the course of these proceedings which give rise to concerns about the mother’s parenting capacity.

2. Mr Jefferson originally arranged for friends to supervise X’s time with his mother at their home, but after she locked herself in the bathroom with X and refused to come out, they were unwilling to continue.

3. Ms Bowe says that X visited her while she was in the bathroom and she allowed him to come in. She denies having refused to leave the bathroom.

4. On 3 November 2012, Mr Jefferson had arranged for X to spend some time with his mother at the (omitted) Library supervised by him. He deposes that Ms Bowe tried to hide from him behind shelves while X was with her and that she gave him a drink which Mr Jefferson believes may have been contaminated.

5. Ms Bowe denies giving X anything but a soft drink on that day and denies trying to hide from Mr Jefferson. I note that there is no clear evidence of any attempt by the mother to deliberately harm X at any time.

6. On 25 November 2012, Mr Jefferson deposes that Ms Bowe came to his home unannounced and he asked her to leave. She then followed him and X to (omitted) Shopping Centre, and took X from his father by force, with X trying to escape from her and the police being called. She left without X after about an hour and before the police arrived.

7. Ms Bowe denies that she was trying to take X away and says that she just wanted to see him but that Mr Jefferson would not allow her to do so.

8. Ms Bowe then engaged (omitted) Community Services, a private child contact service, to supervise her time with X while the parties were waiting for a place to become available at the Family Life Children’s Contact Service in (omitted).

9. In a report attached to an Affidavit sworn 30 July 2013, Ms M sets out the time X spent with his mother during a dozen or so sessions over a period of four months between March and July 2013.

10. While Ms M’s report of Ms Bowe’s attention to X’s needs is positive and it is clear that X very much enjoyed spending time with his mother, the supervisor was concerned that the mother sometimes appeared unable to regulate her emotions if X became distressed or misbehaved.

11. In a letter from the Independent Children’s Lawyer to the mother’s solicitors dated 11 September 2013, the Independent Children’s Lawyer raised concerns about reports she had received from (omitted) Community Services about the mother’s behaviour during a supervised session on 8 September 2013. Ms Bowe’s behaviour was reported to have been “problematic” with the supervisor having to speak very firmly with her and she being reluctant to comply with the supervisor’s directions.

12. The DHS file, subpoenaed by the Independent Children’s Lawyer, is voluminous and contains consistent and significant concerns about Ms Bowe’s behaviour and emotional state.

13. The Family Life Children’s Contact Service provided a report dated 8 March 2014 which covers seven visits between X and his mother between November 2013 and February 2014.

14. That report sets out concerns about Ms Bowe’s expressions of frustration if X did not do what she wanted or respond to her as she wished.  Referring to the first visit at the contact centre, the report says:

    During the course of the visit Ms Bowe seemed to lack insight to (sic) X’s wish to lead in the activities that they engaged in. Ms Bowe presented as more focussed on fulfilling her own needs, for example, the need to embrace X, to take photographs of X and for X to sit with her and play.[1]

    [1] Report of Family Life Children’s Contact Service dated 8 March 2014 page 4

15. The Family Life report also records Ms Bowe becoming very emotional and weeping when the visit came to its end, although this did not appear to cause X any distress.

16. On other occasions Ms Bowe became upset and agitated that there were other families using the contact centre and did not appear able to respond to X’s need to play the way he wanted to. The report goes on:

    Whilst demonstrating affection and love towards X verbally, Ms Bowe was observed to be lacking skills of interacting with a child of X’s age as she did not engage in play with X except on a very few occasions, mostly sitting down and asking X to come over to her complaining that there were too many distractions. When the worker explained that Ms Bowe might interact with X through play, Ms Bowe made a few attempts, however it appeared that she lacked the skills as she would take the toys and say she didn’t know what to do with them.[2]

    [2] Ibid page 6

17. On another occasion when X asked his mother to stop kissing him, she replied that if he did not want her to kiss him she would go home, walking away from him as she did so. X simply went on playing as before.

18. Ms Bowe became agitated on another occasion when asked to stop filming X at Family Life in breach of the centre’s service agreement. She did however ultimately delete the recording, albeit reluctantly.

19. I note that both reports from the supervisors state clearly that Ms Bowe was able to care for X’s physical needs during supervised visits, providing food and drinks for him and ensuring his physical safety. She was always affectionate with X, perhaps more so than X felt comfortable with at times.

20. Both supervision reports comment that Mr Jefferson is supportive of X spending time with his mother and that he is a concerned and caring father.

21. At trial, Ms Bowe presented as a caring and loving mother, but one who has little insight into her own behaviour or its impact on her son. She was perhaps understandably defensive about her behaviour, insisting that she does not suffer from any psychiatric problems and that X is safe in her care.

22. Despite the mother’s protestations, the entirety of the evidence, from the father, from the private supervisor, from the DHS file and from the Family Life Children’s Contact Service, satisfies me that Ms Bowe’s behaviour is of serious concern when she is distressed or feels under pressure and that she is prone in those circumstances to behave erratically and in a manner that puts her three year old son at risk.

The Issues

Issue (A): Is it in X’s best interests for his parents to have equal shared parental responsibility for him?

1. S.61DA(1) of the Family Law Act 1975 (“the Act”) says that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

2. In this case, Mr Jefferson seeks sole parental responsibility for X, while Ms Bowe seeks an order for equal shared responsibility.

3. The presumption in s.61DA (1) does not apply under s.61DA (2) if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.

4. In this case, while it can be said that X is at risk of emotional abuse and some neglect while in the care of his mother, this is not a case where I believe the presumption does not apply.

5. However, the presumption is rebuttable under s.61DA(4) if the court is satisfied that there is evidence that it would not be in the child’s best interests for his parents to have equal shared parental responsibility.

6. Section 60CA makes clear that when making any parenting order, the court must consider the child’s best interests as its paramount consideration.

7. Section 60CC sets out the factors the Court must consider in discerning what orders would best promote a child’s best interests, and as several matters in this case hinge on what the court believes to be in X’s best interests, I address those factors here.

8. There are two “primary considerations” set out in s.60CC(2) and fourteen “additional considerations” set out in s.60CC(3).

9. I will address those considerations in turn.

10. Section 60CC(2)(a) states that the first consideration the Court must look at is the benefit to a child of having a meaningful relationship with both of the child’s parents.

11. Section 60CC(2)(b) states that the second “primary consideration” is the need to protect a child from physical or psychological harm as a result of abuse, neglect, or being exposed to family violence.

12. Where it might be said that those two considerations conflict, s.60CC(2A) makes clear that the need to protect a child takes precedence over the benefit to a child in having a meaningful relationship with both parents.

13. Therefore, in this case, I am bound to place the need to protect X from any harm he might suffer in the care of his mother ahead of the benefit to him of spending extended time with her.

Section 60CC(2)(a) – the benefit of a meaningful relationship

1. The definition of a “meaningful relationship” is has been considered in several cases.

2. It has variously been described as a relationship which is “healthy, worthwhile and advantageous to the child”[3], or one which is “important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one”[4].

   [3] Tait & Densmore (2007) FamCA 1383 per Cronin J

   [4] Mazorski v Albright (2008) 37 FLR 518 per Brown J

3. In this case, the evidence shows that X knows who his mother is, and that he enjoys his limited time with her. Importantly, the evidence shows that his father supports the development and maintenance of that relationship.

4. The word “meaningful” does not incorporate any idea of the quantity of time spent between parent and child, and a meaningful relationship can exist and prosper in circumstances where the actual time spent between parent and child is somewhat restricted.

5. In the current circumstances, X can be said to have a “meaningful relationship” with his mother, albeit one which is currently severely restricted due to the mother’s personal vulnerabilities.

Section 60CC(2)(b) – the need to protect a child from harm

1. There is no question that X, at three years of age, needs to be protected from harm. He is far too young to protect himself.

2. His mother’s attempts to take him away on several occasions must have been quite traumatic for him and he needs to be able to develop his relationship with her in a safe and secure environment.

Section 60CC(3) - additional considerations

1. The additional considerations are as follows.

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

2. X is three years old. His views about how much time he should spend with his mother are unknown and even if known, would have little weight because of his age.

   (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. It appears that X and his father have a close, loving and protective relationship. It is also clear that his relationship with his mother is of similar quality while it is supervised and time-limited.

1. However, there is evidence before the Court that the relationship between X and his mother can become strained if the mother feels stressed and under pressure, and that Ms Bowe is not appropriately attuned to X’s emotional needs.

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

2. Both parents have maintained X while he is their respective care since separation, and Mr Jefferson has paid Ms Bowe sums for X’s support when he is in her care. It is not known whether Ms Bowe currently pays any child support for X.

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

3. The orders I propose to make do not change X’s current circumstances. He will continue to live with his father and spend time with his mother. X has no siblings and will not be separated from anyone he has been living with.

   (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;

4. If I make orders for unsupervised time between X and his mother, there would be no practical difficulty or significant expense involved because the father and X live in (omitted) and the mother lives in (omitted).

5. There is some practical difficulty for the mother in the current arrangements, as they provide for any time to be spent between X and her to be supervised. The mother lives in (omitted) and the children’s contact centre the parties currently use is in (omitted), a distance of about 24 kilometres. Were she to use the services of a private supervisor that difficulty would be likely to diminish.

6. If I make orders requiring X’s time with his mother to continue to be supervised indefinitely, that will certainly create a practical difficulty for the mother, although for the period the parties were to use the Family Life Children’s Contact Service the difficulty is the same for the father in that he would have to travel to (omitted) or (omitted) with X each time. Again, such difficulties would diminish if she were to use a private supervisor.

7. If I were to make orders that time be supervised indefinitely, there would also be significant additional expense involved for the mother once the services of Family Life are no longer available as she will need to engage again the services of a private supervisor.

8. I am aware that supervision at the current venue cannot continue indefinitely and that private supervisors will incur fees for the mother. In that regard, the mother says she wishes to find work to be able to provide for X and it is to be hoped that she would be able to meet the costs of private supervision in those circumstances.

   (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;

9. It is this consideration that is of most concern to the Court in this case.  On the evidence before me I cannot be confident that the mother is able to provide for X’s emotional needs. There is also some evidence that at times she has been unable to provide for his physical needs, as the father’s evidence is that he often found her asleep when X was awake and in her care.

10. Mr Jefferson, in contrast, while sometimes expressing frustration at the mother’s behaviour, has consistently acted protectively towards X and has demonstrated that he is able to take care of all his needs.

    (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

11. X is an Australian-born little boy whose parents are (country omitted) by birth and upbringing. He needs the love and appropriate care of both his parents. His cultural heritage should be maintained through the contact he has with both parents.

    (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)  the likely impact any proposed parenting order under this Part will have on that right;

12. This consideration is not relevant in this case.

    (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

13. The father has demonstrated his commitment to X throughout these proceedings. He has encouraged his relationship with Ms Bowe while ensuring that X is safe at all times.

14. Ms Bowe clearly loves X dearly and wishes to be intimately involved in his life. When I asked her at trial to tell me about her son, her face lit up and she became more animated than at any other time, describing what she does with him during her supervised time.

15. However, her lack of insight into her own actions, particularly in attempting to remove X from his father’s care by force, indicates that her understanding of her parental responsibilities is less than optimal.

    (j)  any family violence involving the child or a member of the child's family;

16. Ms Bowe alleges that Mr Jefferson engaged in serious physical and emotional violence throughout the marriage. I note that when police were called in November 2011, it was Mr Jefferson who was asked to leave the property and that Ms Bowe obtained an Intervention Order against him.

17. However, there have been no further allegations of family violence since X was placed in Mr Jefferson’s care by DHS, and while any history of family violence is of concern to the Court, I cannot find a current risk of such violence to which X might be exposed at the hands of the father.

    (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

    (i)  the nature of the order;

    (ii)  the circumstances in which the order was made;

    (iii)  any evidence admitted in proceedings for the order;

    (iv)  any findings made by the court in, or in proceedings for, the order;

    (v)  any other relevant matter;

18. A Family Violence Intervention Order, with Ms Bowe named as the Affected Family member, and Mr Jefferson as Respondent, was made in late 2011. I note that that order was made in the context of the parties’ separation and that it has now expired.

19. On 2 October 2013, Mr Jefferson obtained an Intervention Order against Ms Bowe, that order to last for twelve months. Ms Bowe was not present when that order was made. Both X and Mr Jefferson are named as Affected Family Members on that order and it prevents Ms Bowe from attending within 200 metres of Mr Jefferson’s residence or any other place where he works or where X attends school or childcare.

20. I note that as Ms Bowe was not present when the order was made and no evidence was tested at the final hearing, no findings of fact were made in those proceedings. However, I also note that in order for a Family Violence Intervention Order to be made under the Family Violence Protection Act 2008 (Vic), a court must be satisfied that family violence has occurred and is likely to occur again.

    (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

21. The orders I propose to make will provide X with stability and security. However, he is only three years old, and it is impossible for the court to make orders now that will apply until he is 18.

22. Should Ms Bowe seek psychological assistance, and develop some insight into her condition while learning strategies to cope with her vulnerabilities, it is possible (and perhaps even desirable) that further arrangements might be made, either by consent or by court order, for X to spend unsupervised time with her.

    (m)  any other fact or circumstance that the court thinks is relevant.   

23. Ms Bowe’s mental health issues are significant. While she does not have a diagnosable psychiatric illness (see paragraphs 120 to 123 of these reasons), she does have what might be called personality vulnerabilities which greatly concern the Court and which must be taken into account when the court is considering orders that are in X’s best interests.

24. When all the issues under s.60CC of the Act are taken into account, I am not satisfied that it is in X’s best interests for his parents to have equal shared parental responsibility for him.

25. Ms Bowe’s erratic behaviour and personality vulnerabilities mean that she is not currently capable of exercising parental responsibility for X.

26. Therefore I find that the presumption in s.61DA (1) is rebutted and I will make an order that Mr Jefferson have sole parental responsibility for making decisions about X’s care, welfare and development.

27. However, it is clear that Ms Bowe loves X dearly and that he loves her and derives benefit from his relationship with her. In those circumstances I will make orders that allow Ms Bowe to receive information about X’s progress at school/kindergarten while protecting him from any possible attempt to remove him without the father’s consent.

Issue (B): Does Ms Bowe suffer from any condition that would make it inappropriate for her to take care of X on a full-time basis?

1. Section 65DAA of the Act says that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child then the court must consider whether it is in the child’s best interests to spend equal time or substantial and significant with each parent.

2. However, having decided that it is not in X’s best interests for his parents to exercise equal shared parental responsibility, I am not required to consider matters of equal care or substantial and significant time.

3. However, Ms Bowe's Response seeks an order that X live with her and I will therefore address that issue.

4. The evidence on this question is consistent and forceful. Despite Ms Bowe’s genuine belief and protestations at trial that she does not suffer and has never suffered from a mental illness, the interventions of DHS and her hospitalisation in mid-2011 for five weeks indicate that she did suffer from depression after the birth of her son.

5. In addition, the psychiatric report of Dr P dated 31 March 2013, while finding that the mother did not present with any evidence of a mental disorder, states that she “is fragile emotionally, easily prone to deteriorate in her mental health under stressful circumstances and is socially isolated. The mother’s difficulties in the relationship with the father reflect issues in her personality, rather than being caused by mental illness. In my opinion the mother does not have a diagnosable personality disorder, though there appears to be more than the usual level of borderline, histrionic and dependent traits in her personality make-up.”[5]

   [5] Psychiatric report of Dr P dated 31 March 2013 paragraph 84.

6. Dr P goes on, at paragraphs 85 and 86:

   85.In my opinion, the mother does not cope well under stress and has reduced tolerance for stress. The parental responsibilities of looking after the child has (sic) tested her coping mechanisms and found them wanting. In my opinion, the mother’s personality characteristics and her immaturity result in the mother finding it difficult to manage the parenting needs of a young child….

   86. …I believe there is a potential for ongoing problems in the mother’s ability to nurture, protect and facilitate the emotional and personality development of the child resulting from the mother’s own personality characteristics and her social isolation.

7. I note that Dr P was not called for cross-examination at trial.

8. On the evidence before the Court, this question must be answered in the positive. Ms Bowe clearly has significant vulnerabilities in her personality make-up that inhibit her ability to appropriately care for X on a full time basis. While she loves X dearly and is well-meaning, she has no insight into those vulnerabilities and as a result, I find that it is not in his best interests for X to be in her full time care. I will therefore make an order that X live with Mr Jefferson.

9. Ms Bowe loves X and misses him terribly. While she should not have him in her care full time, I find it is in his best interests for her to know about his progress and to be informed if he suffers serious illness or injury.  

Issue (C): If the answer to the previous question is yes, what kind of time should X spend with his mother?

1. X’s time with his mother has been supervised since orders were made in those terms on 30 November 2012.

2. The evidence is again very clear. The mother’s behaviour in attempting to remove X from his father’s care in November 2012, the fact that family friends declined to supervise her time further because of her behaviour with all further time being spent under professional supervision, and the reports of the supervisors and Dr P mean that I cannot recommend that the mother’s time with X be unsupervised.

3. Counsel for the Independent Children’s Lawyer cross-examined the mother at some length about her behaviour and it was clear from her responses that she has little insight into the effect of that behaviour on her son.

4. On all the evidence before me, I find on balance that X should continue to spend time with his mother on a supervised basis at Family Life or some other child contact centre, or under the supervision of a professional supervisor. Until she engages actively with a psychologist and other services, and provides the father with evidence of that engagement and her satisfactory progress, I am not satisfied that X is entirely safe in her care unless she is supervised.

5. I will therefore make an order that all time X spends with mother be supervised either at a children’s contact centre or in the presence of a professional contact supervisor.

6. I will make a further order that both parents enrol and engage in the Parenting Orders Program provided by Family Life to assist them in their future parenting of X.

7. I am aware that organisations such as Family Life have time limits on the services they provide. It may be that when those time limits run out, X will be unable to spend time with his mother unless she can find a professional supervisor. That is very unfortunate, but the evidence before the Court convinces me that supervision is necessary to ensure X’s safety and wellbeing.

Conclusion

1. This is in so many ways a very sad case. A charming three year old has a mother who adores him, but who suffers from emotional vulnerabilities that mean it is not in his best interests for her to make decisions about his life or for him to live in her care full time, or indeed to spend unsupervised time with her.

2. It is to be hoped for X’s sake that Ms Bowe will be able to engage with services that allow her to address her vulnerabilities and to develop strategies to deal with them so that in future she might be able to have a more regular relationship with her son.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  25 July 2014