Josey and Meibos and Hellier and Josey

[2014] FCCA 1258

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEY & MEIBOS and HELLIER & JOSEY [2014] FCCA 1258

Catchwords:
FAMILY LAW – Bitter and entrenched parenting dispute – two fathers, one mother and three children – matters heard together because of factual overlap – main evidentiary disputes – central dispute about the state of Ms Josey’s health – mother denying borderline personality disorder – medical evidence clearly establishing borderline personality disorder – violence by mother against children – mother’s denials of inappropriate behaviour unsustained – orders made as sought by Independent Children’s Lawyer.

Legislation:  

Family Law Act 1975 (Cth), ss.11F, 60B, 60CC, 61DA(4)

Goode v Goode [2006] FamCA 1346

Applicant: MS JOSEY

Respondent: MR MEIBOS

File Number: MLC 2653 of 2009

AND

Applicant: MR HELLIER

Respondent: MS JOSEY

File Number: MLC 10313 of 2010

Judgment of: Judge Burchardt

Hearing dates: 17, 18, 19, 20, 21, 24 & 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Melbourne

Delivered on: 20 June 2014

REPRESENTATION

Counsel for Mr Meibos: Ms Pearson of Counsel and then upon withdrawal Mr Meibos in person

Solicitors for Mr Meibos: T. J. Mulvany & Co

Counsel for Mr Hellier: Mr Hogan

Solicitors for Mr Hellier: Coulter Roache Lawyers Pty Ltd

Ms Josey In Person

Counsel for the Independent Children’s Lawyer: Mr Peter Lynch

Solicitors for the Independent Children’s Lawyer: Peter Lynch Barrister & Solicitor

ORDERS

MLC 2653 of 2009

1. That all previous parenting orders in respect of the children X born (omitted) 2002 and Y born (omitted) 2006 be discharged.

2. That Mr Meibos have sole parental responsibility for the children of the relationship X born (omitted) 2002 and Y born (omitted) 2006.

3. That the children live with Mr Meibos.

4. That the children spend time with Ms Josey (including special days where practicable) once a week for two hours.

5. That all times referred to in order 4 herein be supervised as directed by the Independent Children’s Lawyer or other professional supervisors as agreed.

6. That the costs of the supervision referred to in order 5 shall be shared equally between Ms Josey and Mr Meibos and in the event that Ms Josey’s time is to be with Ms Josey’s three children then the costs of supervision is to be shared equally between Ms Josey, Mr Meibos and Mr Hellier.

7. That Ms Josey be restrained from consuming alcohol during any time with the children and for no less than 12 hours prior to the commencement of any such time with the children.

8. That Mr Meibos shall ensure that as far as practicable the children X, Y and Z spend time with each other independently of Order 6.

9. That Ms Josey is to undergo cognitive analytical therapy or dialectical behavioural therapy with a person or organisation determined by the Independent Children’s Lawyer to address her borderline personality disorder and its adverse effect on her parenting of her three children.

10. The Independent Children’s Lawyer is given liberty to forward Court Orders, the Family Report and Reasons for Judgment to the person or organisation that undertakes work as in Order 9.

11. That Ms Josey be at liberty to send cards, gifts and presents to her three children on special occasions such as Christmas and the children’s birthdays.

12. That Mr Meibos authorise Ms Josey to obtain all information regarding the children’s schooling, including school reports.

13. That Mr Meibos and Ms Josey be restrained from:

    (a)discussing these proceedings with the children; and

    (b)denigrating the other party to or in the presence of the children.

14. That Ms Josey be restrained from sending emails and text messages or having telephone communication with the children.

15. That the parties immediately inform the other of any serious illness or injury sustained by a child or children whilst in their care and further provide particulars of any treatment required or received by the child or children together with the name and address of the treatment provider and/or location at which the child or children are a patient.

16. Mr Meibos is authorised and permitted to apply for and receive an Australian passport for the children X born (omitted) 2002 and Y born (omitted) 2006 without first obtaining the written consent of the other parent.

17. That the children shall be permitted to travel to (country omitted) with Mr Meibos at least once every two years.

18. Mr Meibos shall provide to Ms Josey 60 days’ notice of his intention to travel with the children and provide an itinerary and contact details for all relevant times.

19. That the parties shall do all things and sign all necessary documents to maintain a current Australian passport for the child.

20. That Mr Meibos and Ms Josey each provide the other with not less than seven days prior written notice and particulars of any change of residential address or telephone number.

21. That the parties’ applications be dismissed and Ms Josey have liberty to apply on the issue of her time and communication with the children (if practicable to Judge Burchardt) only if she has obtained a report from her treating psychologist/psychiatrist referred to in Order 9.

22. That the Family Consultant Dr P (or if unavailable the Independent Children’s Lawyer) meet with the children (including Z at their discretion) to explain the orders to the children.

NOTATION

A.Mr Meibos and Mr Hellier shall send school photographs to Ms Josey as part of Order 12.

MLC 10313 of 2010

1. That all previous parenting orders in respect of the child Z born (omitted) 2009 be discharged.

2. That Mr Hellier have sole parental responsibility for the child of the relationship Z born (omitted) 2009.

3. That the child live with Mr Hellier.

4. That the child spend time with Ms Josey (including special days where practicable) for two hours each week.

5. That all times referred to in Order 4 herein be supervised as directed by the Independent Children’s Lawyer or other professional supervisors as agreed.

6. That the costs of the supervision referred to in Order 5 herein shall be shared equally between Ms Josey and Mr Hellier and in the event that Ms Josey’s time is to be with Ms Josey’s three children then the costs of supervision is to be shared equally between Ms Josey, Mr Hellier and Mr Meibos.

7. That Ms Josey be restrained from consuming alcohol during any time with the child and for no less than 12 hours prior to the commencement of any such time with the child.

8. That Mr Hellier shall ensure that as far as practicable the children X, Y and Z spend time with each other independently of Order 6 herein.

9. That Ms Josey is to undergo cognitive analytical therapy or dialectical behavioural therapy with a person or organisation determined by the Independent Children’s Lawyer to address her borderline personality disorder and its adverse effect on her parenting of her three children.

10. The Independent Children’s Lawyer is given liberty to forward Court Orders, the Family Report and Reasons for Judgment to the person or organisation that undertakes work as in Order 9.

11. That Ms Josey be at liberty to send cards, gifts and presents to her three children on special occasions such as Christmas and the children’s birthdays.

12. That Mr Hellier authorise Ms Josey to obtain all information regarding the child’s schooling, including school reports.

13. That Mr Hellier and Ms Josey be restrained from:

    (a)discussing these proceedings with the children; and

    (b)denigrating the other party to or in the presence of the children.

14. That Ms Josey be restrained from sending emails and text messages or having telephone communication with the child.

15. That the parties immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide particulars of any treatment required or received by the child with the name and address of the treatment provider and/or location at which the child is a patient.

16. That the parties shall do all things and sign all necessary documents to maintain a current Australian passport for the child.

17. That Mr Hellier and Ms Josey each provide the other with not less than seven days prior written notice and particulars of any change of residential address or telephone number.

18. That the parties’ applications be dismissed and Ms Josey have liberty to apply on the issue of her time and communication with the child (if practicable to Judge Burchardt) only if she has obtained a report from her treating psychologist/psychiatrist referred to in Order 9 herein.

19. That the Family Consultant . Dr P (or if unavailable the Independent Children’s Lawyer) meet with the children (including Z at their discretion) to explain the orders to the children.

NOTATION

A.Mr Meibos and Mr Hellier shall send school photographs to Ms Josey as part of Order 12.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 2653 of 2009

MS JOSEY

Applicant

MR MEIBOS

Respondent

And

MLC 10313 of 2010

MR HELLIER

Respondent

MS JOSEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The central and decisive forensic issue in these two matters which were heard together for reasons I will come to, is whether X born (omitted) 2002, Y born (omitted) 2006 and Z born (omitted) 2009 should live with their mother or with their fathers.  All three children lived in the primary care of their mother until mid-2013 when they were put in the care of their fathers in the ultimate by Court orders.

2. The outcome of that central issue turns largely, and in my view decisively, on another central forensic issue, namely Ms Josey’s mental health.  Both fathers and the Independent Children’s Lawyer say that Ms Josey is such a risk to the children because of her borderline personality disorder that the children should live with their fathers and spend only supervised time with their mother, such supervised time to continue on an indefinite basis until and unless Ms Josey is able to be treated for and overcome the effects of the borderline personality disorder.  Ms Josey’s position is that her health is unimpaired, save for thyroiditis and that she remains no risk to the children and that the children should live with her.

3. For the reasons that follow, and with regret for the anguish it will necessarily cause Ms Josey, it is clear that Ms Josey does suffer from borderline personality disorder, is a serious risk to the children and that orders should be made as the Independent Children’s Lawyer seeks.

A brief word about methodology

1. The parties in these two now joined proceedings have filed very substantial amounts of materials.  There are 54 items on the Josey & Meibos file and 89 items on the Hellier & Josey file.  The parties have had all too much to say, both in their affidavits and in their oral evidence before the Court.  If this judgment were to traverse each and every matter raised by the parties, it would be as prolix as the parties’ own endeavours were to put evidence before it.  I do not propose to adopt that methodology, particularly because the evidence about the critical question, namely Ms Josey’s health and the effects it has on her, is within a relatively short compass and may be dealt with in a sensible and economic way. 

2. I should emphasise that I have read and reread the entirety of both files and all the materials tendered as exhibits and have carefully reread my notes.  Nothing has been ignored.  These reasons, however, will concentrate on the aspects of the matters that I consider to be of significance.  Insofar as I recount evidence I do so from my notes and not from transcript, but I have no doubt that anything I have paraphrased will be sufficiently accurate for the purpose.

Uncontroversial matters

1. Although there is no great superabundance, there are a number of matters that are not controversial.

2. Mr Meibos was born on (omitted) 1954 in (country omitted).  He did not come to Australia until he was an adult and his father and other close family live in the (country omitted).

3. Ms Josey was born on (omitted) 1968.  She is Australian as best I understand the matter and all her family live in Victoria.  Although the position was not immediately clear, I think it was clear by the end of the evidence that she is presently estranged from all her immediate family.

4. Ms Josey and Mr Meibos commenced a relationship in 2001.  Their elder child, X, was born on (omitted) 2002 and Y was born on (omitted) 2006.

5. Mr Meibos assaulted Ms Josey and was charged on 22 November 2006.  He pleaded guilty in June 2007 to assault, for which he was put on a good behaviour bond and fined.

6. Mr Meibos and Ms Josey separated for some months in 2008, during which time Ms Josey commenced a brief relationship with Mr Hellier.  She and Mr Meibos then re-partnered and separated in January 2009.

7. Ms Josey then commenced to live with Mr Hellier shortly thereafter and in March 2009 the proceeding was commenced by Ms Josey against Mr Meibos.  It is worth noting that she sought a watch list order in addition to other orders.

8. In the context of the initial tranche of litigation, Mr Meibos and Ms Josey were the subject of a family report prepared by Dr A, who interviewed the parties in July 2009.  On 19 November 2009 orders were made by consent which finally disposed of children’s issues.  There was an order for equal shared parental responsibility and the children were to spend effectively half the time with each parent.  The children were permitted to travel to the (country omitted) with Mr Hellier at least once every three years, subject to notice and other conditions.

9. The matter of Josey and Meibos remained wholly quiescent so far as any court application was concerned until Mr Meibos filed his Initiating Application in August 2013.

10. In the meantime things had gone badly wrong in the relationship between Mr Hellier & Ms Josey.  They separated it would seem in late July 2009, at which time Ms Josey was pregnant with their son Z who was born, as earlier indicated, on (omitted) 2009.

11. The relationship between Mr Hellier and Ms Josey seems to have been characterised ever since by bitter animosity, with each party making claims which would seem, at first blush at least, to be outlandish against the other from time to time.

12. Final Orders were made by Federal Magistrate Connolly (as he then was) by consent on 27 July 2011.  There was equal shared parental responsibility but Z was predominantly to live with his mother.

13. Those orders have not operated without incident.  The file shows the numerous contravention applications brought by Mr Hellier from time to time.

14. Notwithstanding any difficulties however, all three children have lived predominantly in the care of their mother until July 2013.  Following an incident on 17 July 2013, the children were ordered by the Court to live with their respective fathers.

15. Because of the very substantial  factual overlap between the two cases they were ordered to be heard together.

The issues that are controversial

1. There are in a sense all too many matters in controversy between the parties.  The primary and by far the most significant, as I indicated at the commencement of this judgment, is the true state of Ms Josey’s mental health and its consequences.  There are however, a number of sub-issues.

2. In the case of the dispute between Mr Meibos and Ms Josey, I would broadly characterise this dispute as being the extent of violence perpetrated by Mr Meibos and/or Ms Josey during the relationship, both to one another and to X and Y and the interrelated issues of the capacity of each parent to properly care for the child.  There is a further and significant issue, which in my view goes to the state of Ms Josey’s mental health, as to Ms Josey’s relationship with the children and in particular X.  A further issue vividly important to Ms Josey is whether Mr Meibos, in truth, intends to unilaterally relocate with the children to (country omitted).

3. In the case of the dispute between Mr Hellier and Ms Josey the sub-issues seem to me to be the extent of family violence perpetrated by Mr Hellier and/or Ms Josey on each other and on the children (bearing in mind that Mr Meibos’ children lived with Mr Hellier and Ms Josey for a brief period of time in 2009).  A further interrelated issue is an alleged incident of significant abuse of X in July 2009 by Ms Josey.

4. There is a further vivid dispute between the parties about the extent and treatment of Z’s asthma and his care generally. 

5. A further issue of concern to the Court is the use by Mr Hellier of a report of Dr A’s which he concedes he has shown to a number of external authorities. 

An overview of the evidence – the relevant affidavit evidence

Josey & Meibos

The affidavits of Ms Josey filed 27 March 2009

1. The Affidavit marked “Affidavit in support” filed 27 March 2009 sets out the ages of the parties, an overview of the relationship and the births of the children.  The Affidavit goes on to detail the separation of the parties in 2008 and the final separation in January 2009.  Ms Josey deposed to the assault upon her in November 2006, and the subsequent conviction of Mr Meibos to which I have already referred.  The Affidavit asserted mood swings and violence on Mr Meibos’s part and asserted that in July 2006 during a visit to the (country omitted), Mr Meibos became estranged from his brother.

2. The Affidavit went on to criticise Mr Meibos’ lack of skills as a parent and accused Mr Meibos of being aggressive to the children.  The Affidavit asserted that Mr Meibos was proposing to return to (country omitted) and that he had on one occasion assaulted X in March 2006.

3. The second Affidavit filed on 27 March 2009 added nothing material save that it annexed a copy of the second Intervention Order obtained against Mr Meibos, on 11 August 2008.

The Affidavit of Mr Meibos filed 30 April 2009

1. Mr Meibos' Affidavit filed 30 April 2009 confirmed the commencement of the relationship in 2001 and the birth of X in (omitted) 2002.  Mr Meibos confirmed the separation in 2008, its resumption in November 2008 and final separation in late January 2009.

2. The Affidavit essentially took issue with the criticisms made of Mr Meibos’ parenting skills and complained of the possible relocation of Ms Josey and Mr Hellier to (omitted) in the near future.  At paragraph 13 of the Affidavit Mr Meibos raised concerns about Ms Josey’s erratic and provocative behaviour and asserted “On some occasions it is quite clear that she is under the influence of alcohol and possibly Valium”.

3. Mr Meibos conceded that there was a one year Intervention Order against him made on 11 August 2008 but pointed out that a mirror Intervention Order had been made against Ms Josey on the same date.  The thrust of Mr Meibos' Affidavit was that the children needed stability and X should not be removed from (omitted) School.

The Affidavit of Ms Josey in answer filed 1 May 2009

1. Ms Josey responded in detail to the contents of Mr Meibos' Affidavit filed 30 April 2009.  She repeated complaints about Mr Meibos’ controlling and bullying behaviour and deposed that X was now attending (omitted) Primary School.  She deposed that time spent with Mr Meibos had only occurred because of Mr Meibos’ bullying behaviour.  Ms Josey put the blame for any communication difficulties on Mr Meibos.  On this occasion Ms Josey annexed to her Affidavit a copy of the Intervention Order made against Mr Meibos on 23 November 2006 and the results of the concomitant court proceedings in June 2007.  It is clear that Mr Meibos was found to have committed an unlawful assault and was released on an undertaking and was ordered to be on good behaviour and fined $250.

The Affidavit of Dr A filed 17 November 2009

1. Following an interim decision made by Federal Magistrate O’Sullivan (as he then was) on 8 May 2009, and an application for a stay which his Honour dismissed on 14 May 2009, the children were ordered to remain in their school and crèche in the (omitted) area and a family report was ordered.  This was prepared by Dr A.  This Affidavit effectively put that report into evidence.

1. Dr A noted at page 2 of 17 that:-

   Mr Meibos accuses Ms Josey of consuming excessive amounts of alcohol and Valium as well as engaging in some destructive and violent behaviour towards him.  She accuses him of significant domestic violence, primarily psychological as a result of his controlling nature, with some physical violence as well.  The present dispute arose in the context of Ms Josey forming a relationship with Mr Hellier and moving X to (omitted) Primary School from Term 2, 2009.  Ms Meibos was ordered to return X to (omitted) Primary School and for the shared care arrangements to continue pending the final hearing of the matter.

2. Dr A set out the record of his interview with Mr Meibos including Mr Meibos’ version of the relationship and his personal history.

3. Dr A interviewed X and I note that she maintained that she wished to live equally with each of her parents.  She also spoke warmly of her six year old step-sister A (Mr Hellier’s daughter).  X expressed three wishes, all related to her friendship with A.

4. Dr A interviewed Ms Josey together with Mr Hellier.  What is perhaps particularly telling for present purposes is what Mr Hellier had to say about Mr Meibos at page 6 of 17:-

   Mr Hellier said that he was very concerned for Ms Josey, as a friend, after she and Mr Meibos separated in June 2008.  He had witnessed their relationship from the outside and was aware of some of the difficulties.  He has never seen Mr Meibos sober.

5. Dr A went on to say at page 7 of 17:-

   Mr Hellier said that their first concern is for the three girls as they are both concerned about Mr Meibos’ behaviour at home.  He does not want A exposed to family violence and is very conscious of protecting A from major upheavals.  He feels very disappointed with the Family Court, as he believes X and Y have been put back into a dangerous situation.  He described Mr Meibos’s screaming and yelling as ‘sheer rage’ and is concerned for the girls’ safety.

6. Dr A then conducted a separate interview with Ms Josey who revealed to him that she has had thyroiditis as a 20 year old and had had regular thyroid checks since. 

7. I note that Ms Josey was the dux of (omitted) Primary School and that she finished in the top five per cent of the state in VCE (page 8 of 17).  Dr A recorded Ms Josey’s version of the relationship with Mr Meibos which was, scarcely surprisingly, critical of Mr Meibos.  Notwithstanding, Ms Josey reported that the parties had agreed on equal shared care but not in week about blocks.

8. It should be noted that Dr A’s report was a family report and not a psychiatric report.  Dr A noted the mutual allegations made by the parents against each other, but asserted at pages 14-15 of 17:-

   It is very difficult to reach a firm conclusion about the veracity of either of these accusations.  In any event they do not seem to be sufficient to significantly compromise either parent’s capacity to care for their children.  If Ms Josey’s description of Mr Meibos’ approach to parenting is correct, he may benefit from a parenting course to help him in establishing routines for the children and setting appropriate limits on their bedtime and other aspects of their behaviour.  Otherwise both parents appear able to meet the children’s physical, emotional and intellectual needs.

9. Dr A supported the proposals for shared care.

10. Dr A did set out a brief psychiatric assessment of each party.  In respect of Mr Meibos he said at page 16 of 17:-

    While there was no evidence that Mr Meibos is currently suffering from any Axis-1 DSM-IV Disorder, he may have suffered an Adjustment Disorder with Depressed Mood earlier in the year.  Mr Meibos himself acknowledges that he can be quite a controlling person and this was the source some of the conflict between himself and Ms Josey.  He denies excessive alcohol use, as alleged by Ms Josey and Mr Hellier.  His descriptions of the confrontations between himself and Ms Josey suggest he sees them as significantly less violent and severe than her account.

11. In respect of Ms Josey, Dr A found at pages 16-17 of 17:-

    She has apparently had thyroid problems since an episode of thyroiditis when she was 20 years old but these did not cause her any difficulty until she became hyperthyroid during the pregnancy with X.  Her description of her symptoms during this pregnancy are also consistent with mild hypomania although she denies other symptoms suggestive of hypomania.  She also denied any significant episodes of depression other than for a brief period after her father’s death when she felt ‘heavy’.  Her general practitioner recommended antidepressants but she declined to take these.

    Ms Josey presents as a 40 year old woman who showed no evidence of any acute Axis-1 DSM-IV Disorder at interview.  She was very concerned about Mr Meibos’ violent outbursts and the risks they presented for herself and the children.  She feels aggrieved that the Court has not taken these concerns sufficiently seriously.

    Despite these concerns she and Mr Meibos have apparently been able to agree to continue shared care and she acknowledges that things appear to have been more settled in the last few months.

12. I would interpolate and point out that it was after this report that the final Orders were made on 19 November 2009 for a shared care regime which, as I have earlier indicated, seems to have gone reasonably well until things went awry in 2013.

The Affidavit of Ms Josey filed 13 September 2013

1. The Affidavit referred to the earlier affidavit material filed in 2009 and brought matters up to date, so to speak, by indicating the birth of Z on 20 December 2009.

2. The Affidavit pointed out that all three of the children had been substantially in her care since their birth and that both of the fathers were over holding the children and seeking that they live with them.  She referred to the potential difficulties of splitting the siblings.

3. Ms Josey referred to the history of family violence and an order allegedly made on 11 August 2008 with Mr Meibos being charged of unlawful assault.  It is clear from annexure J1 to that Affidavit however that the assault was that which took place in November 2006, which had nothing to do with the Intervention Order made in August 2008.

4. The Affidavit repeated allegations of verbal abuse on the part of Mr Meibos and alleged that X had been injured on her face after being bitten by Mr Meibos’ dog in January 2010. 

5. The bulk of the Affidavit however, not surprisingly, dealt with the incident on 17 July 2013 which was the immediate cause of the children being removed from Ms Josey’s care.  Ms Josey denied being drunk and denied assaulting X.  She went on to detail her thyroiditis and exhibited medical reports designed to gainsay the proposition that she had any alcohol or drug problem.  She went on to respond to an affidavit earlier filed by Mr Meibos.  It is not necessary to traverse this response in any detail, as it essentially takes issue with Mr Meibos’ assertions.

The Affidavit of Mr Meibos filed 19 September 2013

1. This Affidavit was an update of Mr Meibos’ earlier affidavit material.  He deposed as to further worrying texts and email communications from Ms Josey.  Relevantly Mr Meibos deposed at paragraph 6 that his diary showed telephone communication or text messages from Ms Josey:-

   12/09/13 – Ms Josey called X and started going on about how she would be forced to return to her – 100% of the time – and that if she refused she would be put into foster care.  X was a bit rattled.  Ms Josey has engaged both girls in inappropriate chat in the last week or so and it was the final straw.  We asked the desk constable (Snr Constable Mr J) if he could just call Ms Josey and ask her to desist.  He called Ms Josey and explained to her that she was breaching her AVO.  Ms Josey argued with him of course.  She even called him back after he had rung off.

2. A further record of a conversation on 15 September 2013 reads:-

   After we had dropped Z off I spoke with Ms Josey.  She asked to speak with Y and I told her she would be on speaker.  She told Y “… Dad will be in jail after tomorrow …”.  I warned her about her AVO.  When she rang off I realised we needed to drop off Z’s booster seat.  Pulled up at Ms Josey’s and X said she would take it.  Ms Josey came to the door and had a short conversation with X.  Y and I stayed in the car.  When we were driving away X started crying. 

   These are X’s words about the conversation with Ms Josey:- 

   “…you aren’t going to see me after today.  This is goodbye.  My funeral will be next week.  I am not joking, I probably won’t be alive tomorrow.  You don’t need a mum...”

3. An SMS sent to X on the same day from her mother reads:-

   goodbye X.  goodbye.  Sorry i maybe slapped u on the back.  goodbye.

4. The Affidavit went on to depose to Mr Meibos’ concerns about Ms Josey’s mental health and a desire for an updated psychiatric report.

The Affidavit of Ms Josey filed 19 September 2013

1. In this Affidavit Ms Josey sought to explain why she was unable to attend Court on Monday 16 September 2013.  The previous evening she was admitted to the (omitted) Hospital and discharged at approximately 8.00 am on Monday 16 September 2013.  The Affidavit deposes at paragraphs 5 and 6:-

   5. The Police transported me from my home to the Hospital on 15 September 2013.  They attended my home in response to telephone calls they had received from the Applicant Father, Mr Meibos, in which he expressed concerns about the possibility of me harming myself.

   6. The Crisis Assessment Psychiatric Team at the (omitted) Hospital assessed me and deemed me fit for discharge with no treatment or any other follow up required.  Annexed hereto and marked with the letters “J1” is a copy of the discharge letter I received on the 18 of September 2013.

2. Annexure J1 of the Affidavit notes relevantly:-

   Brought in by police section 10.  Ex-partner concerned about suicidal ideation.  ECATT psychiatry team involved and deemed patient fit for discharge after.

The Affidavit of Mr Meibos filed in Court on 30 September 2013

1. This was in fact the Affidavit earlier filed but removed from the Court file by my order.  It was the first Affidavit in this new tranche of litigation.

2. This Affidavit reprised the overall history of the relationship.  It noted that following the breakdown of the relationship between Ms Josey and Mr Hellier, she had moved back into the (omitted) area in November 2009. The Affidavit repeated criticisms of Ms Josey’s argumentative and moody behaviour, together with the allegations of the consumption of excessive alcohol and possible use of Valium.  Mr Meibos deposed that he had maintained a diary of some of his conversations in a record of emails and text messages between the parties.  Some of the more historical messages set out seem to me to be ostensibly rather unpleasant.  It is not necessary to dwell on them.  What is important is what happened on 17 July 2013.

3. At paragraph 14 of his Affidavit Mr Meibos deposed:-

   On 17 July 2013 at around 7 pm I received a call from X, she was sobbing and very distressed, she told me that Ms Josey had hit her, I told her that I would be coming around.  Given previous history I asked her to put Ms Josey on the phone.  Ms Josey was slurring her words badly and when I told her I was coming around she started to make threats so hung up.  I had also received a text message from X using her mother mobile phone but I spoke to her before I had seen it the message read as follows:

   Wed, Jul 17, 2013 at 7.12 PM.

   X (from Ms Josey’s phone): Pls help me dad.

   I went straight to the (omitted) Police Station and explained the situation and asked for their assistance.  The instructed me to drive to (omitted) and wait for a police car.  When I arrived 2 cars were there already, I was told to wait by my car.  When they knocked X came out pretty quickly.  She was very shaken.  Ms Josey came to the door and even from a distance I could see she looked and sounded drunk.  After 10 minutes the constable came and said no children would be allowed to stay in Ms Josey’s care. After about 30 minutes Y and Z came and got into my car.  The Police asked if Z could stay with me as Ms Josey said she couldn’t contact his father otherwise they would have to put him in temporary foster care.

4. The Affidavit went on to detail the way in which the matter went to court, some intermittent disputation between the parties (including assertions that Ms Josey had been significantly affected by alcohol on a number of occasions). 

The Affidavit of Ms Josey filed 18 October 2013

1. This Affidavit essentially informed the Court as to how Ms Josey’s supervised time with the children had been going.  Relevantly Ms Josey deposed to her seeking assistance from her psychologist Ms H and the fact that owing to the stress of the case and as a precautionary measure, Ms Josey had enrolled for one-on-one counselling with a drug and alcohol counsellor.

The Affidavit of Dr A sworn 29 November 2013

1. This report was prepared by Dr A pursuant to Court order.  Dr A noted the memorandum of Dr B dated 18 October 2010, the lack of agreement between the parties as to who the children should live with and the recommendation of Dr B, that Ms Josey have a thorough psychiatric assessment, as well as sessions with a drug and alcohol counsellor.

2. Dr A traversed the affidavit material filed by the parties including the report of Ms H annexed to Ms Josey's Affidavit filed 13 September 2013 and the medical reports from Dr N dated 7 August 2013 and 10 September 2013.

3. Dr A set out the details of his interview with Ms Josey including her version of the events of 17 July 2013. 

4. I note that Ms Josey did admit hitting X once in 2011 but also said (page 13 of 16):-

   Ms Josey denies hitting X in July 2013.  She believes that whenever X says anything bad about Ms Josey, her father rewards her by buying a new dress or something else.  X chose not to talk to Ms Josey on her birthday, the week before the interview with me.  Y was only allowed to speak to Ms Josey on a speaker phone.  Mr Meibos accused Ms Josey of bashing the children.  He said that she would go to jail, making the children very anxious. 

   Ms Josey feels that as a result of their father’s comments, the children have become alienated from her and will have difficulty returning to her care…

5. In his summary and conclusions Dr A pointed out (page 13 of 16):-

   As the Court is aware, and as set out in my 2009 (Meibos and Josey) and 2011 (Hellier and Josey) reports, these matters have a sadly long history.  The matters have been further complicated by numerous notifications to the Department of Human Services, the involvement of the Police and Intervention Orders. 

   In essence, Ms Josey has formed two unsatisfactory relationships with the fathers of her children, Mr Meibos and Mr Hellier.  She accuses both of them in engaging in significant family violence towards her and they in turn accuse her of failing to care for the children properly, particularly when she is substance affected with alcohol and/or prescription medication.

   Following her separation from Mr Hellier, Ms Josey appears to have established a reasonably cooperative relationship with Mr Meibos until the events of 17 July.  On 17 July X accused Ms Josey of hitting her.  Subsequently the children were all removed from Ms Josey’s care, apparently because she hit X and the assessment that she was too intoxicated at the time, to care for them.  Since July Mr Meibos and Mr Hellier appear to have joined forces in restricting Ms Josey’s access to the children, based on their professed concerns for the children’s safety and well-being.

   It is important to emphasise in preparing this report, I have not spoken to either Mr Meibos or Mr Hellier.  Neither have I interviewed X, Y or Z or observed them with their mother. 

   On each occasion that I have interviewed Ms Josey, she has consistently denied drinking excessive amounts of alcohol or showing any signs of alcohol dependence while acknowledging that she does drink on a regular basis.  I note that on 17 July Child Protection After Hours Service and the Police apparently formed the view that Ms Josey was severely intoxicated and that it was not appropriate to leave the children in her care that night.

   Ms Josey also consistently denies having any psychiatric or mental health problems, apart from anxiety caused by her relationship with her two former partners.  She frequently refers to her ‘thyroid disease’ following an episode of thyroiditis in her twenties.  This is confirmed in the letter of Dr M (p7, 2011 report) however, Dr M’s letter does not suggest that her thyroid disease is a major health problem, but rather a condition that requires regular monitoring, particularly in the context of any future pregnancies.  Both thyrotoxicosis and hypothyrodism are medical conditions that may present with psychiatric symptoms including anxiety and depression.  It remains unclear to what extent Ms Josey’s thyroid problems contribute to the difficulties she has experienced in her relationships with her children and their fathers.

6. Having made some observations about Ms Josey’s presentation at the interview and the difficulties of keeping her on point, Dr A continued:-

   The only explanation, other than family violence and persecution by Mr Hellier and Mr Meibos, that Ms Josey gave for any problems she has experienced is the thyroid disease she has suffered since her twenties.

   At the interview on 22/11/2013 Ms Josey pointed out that the Hearing is scheduled for 2/12/2013 and therefore she needed the report by Friday, 29/11/2013.  I promised Ms Josey I would do everything I could to meet this deadline, even though this meant deferring other reports.  On 26/11/2013 my secretary, who was attempting to type Ms Josey’s report, received at least five phone calls from Ms Josey asking if the report was ready, whether the men had paid the account and questioning the bill, which she incorrectly claimed was much less than the previous accounts.  I only mention this because it is consistent with some of the emails Ms Josey has sent one or both men and her apparent lack of judgment about their impact on the recipient. 

   On the basis of the present assessment, and taking into account my previous contacts with Ms Josey, I do not believe Ms Josey shows clear evidence of any diagnosable Axis-1, DSM-IV psychiatric disorder however there is increasing evidence that she does have a Personality Disorder, most probably of the Borderline type.

   This should not preclude Ms Josey from spending time with one or more of the children, or having them in her care, unless she is engaging in abusive behaviour towards them or is intoxicated when they are in her care.  It may be helpful if Ms Josey is willing to give an undertaking not to consume alcohol while the children are with her and to at least have an assessment by a drug and alcohol counselor.  There are treatment programmes for individuals with Borderline Personality Disorder (BPD) however these are difficult to access, particularly in the public sector.

7. Having referred to concerns about Mr Hellier using the 2011 report inappropriately, Dr A concluded (page 15 of 16):-

   Finally, it may be worth reminding Ms Josey, Mr Meibos and Mr Hellier of the considerable body of evidence of the harmful effects on children of ongoing conflict between parents following separation.  Unfortunately, Ms Josey, Mr Meibos and Mr Hellier appear to have an extremely dysfunctional relationship in which Mr Meibos and Mr Hellier have joined forces against Ms Josey, in the belief that they are acting in the best interests of the children.  It may be more productive for them to consider how they can support the children’s relationship with their mother, whatever decision the court ultimately reaches about the most appropriate parenting arrangements.

The Affidavit of Mr Meibos filed 9 December 2013

1. This Affidavit was essentially facultative, to put into evidence a number of texts allegedly sent by Ms Josey to both Mr Meibos and to X.  The terms of the texts to Mr Meibos involved unpleasant accusatory rants, mixing disturbing allegations about X (e.g. “I wish i can be there to see her kick ur teeth out just like she did her sister.  Only a matter of time old man.  As soon as you get old and weak she will turn on u.” Sent on 16 November 2013 and complaints of violence and drunkenness on the part of Mr Meibos.

1. It is neither necessary nor appropriate to set these texts out in full, but amongst the materials is a disconcerting text sent to Mr Meibos on 21 November 2013 as follows:-

   i. will will kill u Mr Meibos. u said payback payback. Well om.Im franic about Y. and Z. don’t care… very scared about Z.  bet you havrnt bothered to read Mr Hellier has a drug prescriptive addiction since 2004 its on file with the family court!,.  along with his fits when allergies and threats under tment for mental illness since then makes him insane.

2. The messages to X, set out in paragraph 6 of the Affidavit are even more concerning.  Likewise, they speak for themselves.  They include, on 30 October 2013:-

   I will never forgive u X.  For what u did to Y and Z.  The dog will die.  And yes i did hit u. 11 december 2011.  U  said the dog was more important than your brother. I slapped.

   On 9 November 2013, the text reads:-

   you are a bitch X.  i don’t care what is going on in your life.  u are a bitch.  scary what you did at camp.  attacking other kids.  i don,t want you.  i want Z and Y.

3. On 9 November 2013, later in the night:-

   have fun sleeping in bed with ur dad.  an 11 year old insisting she needs to sleep with a 60 yr old man! is crazy.  have you started having sex with him.

4. There is all too much more of such materials, which would have been extremely disconcerting to X to receive if she saw them and if they were sent, these being matters to which I will return.

5. Mr Meibos deposed that X had been extremely upset by these messages.

The Affidavit of Ms Josey filed 13 December 2013

1. This Affidavit is essentially responsive. It puts in issue a number of the assertions made by Mr Meibos and Mr Hellier and takes issue with the account of events put by Dr B in his s.11F report released in October 2013. I note that the annexure J-2 to the Affidavit, is a statement made to the police by X on 17 July 2013, in which X asserts that she was assaulted and that her mother was drunk that evening.

The Affidavit of Mr Meibos filed 21 February 2014

1. This is Mr Meibos’ trial Affidavit and it is largely a reprise of early materials.  I note that further text messages since the filing of Mr Meibos’ previous affidavit, and similarly distressing to Mr Meibos, are included.

The Affidavit of Ms M filed 13 March 2014

1. This Affidavit is effectively Ms M’s report to the Independent Children’s Lawyer about the three occasions she supervised time between Ms Josey and the children.  Both the daughters wish to see their mother.  X and Mr Hellier were comfortable with one another.  I note that Mr Hellier could not help himself and spoke to Ms M about Ms Josey’s alleged problems with drugs.  I note that Ms Josey did not attend the first meeting, owing to a problem with her telephone, but I further note that she did not actually believe that the two fathers had brought the children to Ms M as they in fact had.  I note that Ms M was the recipient of a number of highly emotional text messages from Ms Josey.

2. In the ultimate, three episodes of supervised time took place.  I note that at one point the nature and sheer frequency of the text messages became so great that Ms M cancelled a proposed period of time.

3. It is worth quoting the final summary on pages 19-20 of Ms M’s report, as follows:-

   Time spent between the children and their mother on the 3 occasions I supervised was overall very positive.

   Y appeared very eager to spend time with their mother.  X appeared a little reserved but once mum arrived, she happily shared news with her and the chatter was nonstop. 

   Z would look over at the door and ask when she was coming.  He was openly affectionate and playful with his mother.  He would become pensive when she first left then get caught up in his play.

   Ms Josey appeared to do her best to share her time between the children.

   On occasions Ms Josey did interrupt the girls when they were trying to tell her something with stories of her own; but mostly with lots of little stories about each of them from when they were babies or when she was pregnant with them.

   Ms Josey had lots of praises and encouragement for each of them.

   Ms Josey remained positive during the goodbye times making it easier for the children.

   I could see however she was struggling to keep her emotions together.

   Ms Josey did not spend time with the children the first time Supervised Time was arranged as she believed it was a set up and she would be arrested.

   When she was told the father’s had brought the children to the play centre to spend time with her, Ms Josey said that the father’s had done this to make her look bad.  She had not expected the children to be there.

   I cancelled the last period of supervised time because of the excessive amount of text messages (53 in 24 hrs) from Ms Josey leading up to the day, and the concerning content in the majority of them.

4. It should be noted that Ms M was not required to attend the Court for cross-examination.

The Affidavit of Dr A filed 13 March 2014

1. This Affidavit put into evidence the confidential psychiatric report of Dr A dated 26 November 2013.  As might be expected with a practitioner of Dr A’s very considerable experience, he summarised the materials before him in detail.  He then set out at pages 9-13 of 16 a summary of his interview with Ms Josey.  It is not necessary to paraphrase the content of this interview, which to a considerable extent traverses matters in the materials generally.  I note that at page 12 of 16 Dr A reported:-

   Ms Josey said she did hit X once in 2011.  She smacked X on the bum, after she had taken Z to the RCH with asthma and after X made some comment about Z not being her brother.  Ms Josey now recognises that she hit X out of exasperation with Mr Hellier.

2. Dr A reported at page 13 of 16:-

   Ms Josey denies hitting X in July 2013.  She believes that whenever X says anything bad about Ms Josey, her father rewards her by buying her a new dress or something else. 

3. He then set out the conclusions, to which I think I have already referred, and I repeat again.  Dr A’s conclusion at page 14 of 16 that:-

   On the basis of the present assessment, and taking into account my previous contacts with Ms Josey, I do not believe Ms Josey shows clear evidence of any diagnosable Axis I, DSM-IV psychiatric disorder, however there is increasing evidence that she does have a Personality Disorder, most probably of the Borderline type.

4. He went on to say however, that this should not preclude Ms Josey from spending time with her children unless she is engaging in abusive behaviour towards them, or is intoxicated when they are in her care.

The Affidavit of Ms Josey filed 17 March 2014

1. This Affidavit is essentially responsive to the Affidavit filed by Mr Meibos.  Although I have had regard to its terms, it does not in the scheme of things, in my view, take this matter much further.  Ms Josey takes significant issue with most of the matters alleged against her by both Mr Meibos and Mr Hellier.  I note that Ms Josey has exhibited materials from (omitted) Community Health Service and the (omitted) Clinic, which would suggest low risk for alcohol abuse and a series of clean drug screens.

Hellier & Josey

1. Anyone who is reading these reasons for judgment will realise that the journey through the forest of affidavit material in Josey & Meibos has been a long one.  The journey is of even greater extent in Hellier & Josey.  In order to keep this judgment under any sort of control as to size, it will be necessary, and in my view, entirely appropriate to an extent to paraphrase in a rather general way.

The Affidavit of Mr Hellier filed 8 November 2010

1. Mr Hellier gives details of the birth of Z on (omitted) 2009, introduces X and Y, and deposes to his other daughter A, born (omitted) 2003, who lives on a 50-50 basis with her mother.

2. Mr Hellier deposed to having known Ms Josey since 1985 and renewing a long lapsed acquaintance in 2005.  He deposed to a brief intimate relationship with Ms Josey between September and November 2008. 

3. Following that relationship, Ms Josey informed Mr Hellier on 14 March 2009 that she was pregnant, and Ms Josey relocated to Mr Hellier’s home with X and Y on 30 March 2009.

4. The Affidavit went on to depose as to Ms Josey’s alleged problems with alcohol and drugs and an occasion on about 2 April 2009 when it was asserted, Ms Josey overdosed on diazepam mixed with vodka.  Mr Hellier deposed at paragraph 14:-

   I was too afraid to call an ambulance for fear of the effect it would have on her upcoming Family Law matter with Mr Meibos.

5. The Affidavit went on to assert increasingly irrational conduct by Ms Josey, including disappearing on occasions and threatening to commit suicide.  The Affidavit deposed that on 30 July 2009 Ms Josey came home extremely intoxicated.  She rang the police twice, and the following morning Mr Hellier attended court to obtain an Intervention Order to get Ms Josey out of the house.

6. When he got home, he alleged, he found Ms Josey in the bathroom, vomiting, having overdosed on vodka and Lexapro.  Her sister Ms S had already called triple zero (000), and police and ambulance attended.

7. The Affidavit went on to depose to the amount of time he had been able to spend with Z, and Ms Josey’s allegedly difficult conduct in endeavouring to prevent this.  Mr Hellier indicated that he was well able to care for Z and could be a primary carer for the child.

The Affidavit of Ms Josey filed 21 December 2010

1. Ms Josey's Affidavit responds directly to each and every paragraph of Mr Hellier’s.  She took issue with the history of the pregnancy and asserted that Mr Hellier had tried to pressure her to have an abortion, rather than give birth to Z.  She entirely denied having any problems with alcohol and/or drugs, although she did refer to the probability of her having experienced an episode of “thyroid storming”.

2. Ms Josey emphasised that her difficulty was with thyroid disease and that this was not a mental illness and she referred to the 2009 report of Dr A in this regard.  She denied ever disappearing, denied trying to commit suicide and refuted the assertions made by Mr Hellier about the 30 July 2009 incident.

3. Ms Josey disputed strongly Mr Hellier’s assertions that he was competent to parent Z but did say that she was, at all times, trying to promote a relationship between them.

4. Ms Josey went on to express serious concerns as to Mr Hellier’s mental wellbeing and that at paragraph 45:-

   He has a lengthy history requiring medication.  He has informed me that he is no longer seeing his psychologist or receiving any medication but it is not clear whether he stopped his medication with the consent of his doctor.

5. Ms Josey deposed to the fact that Z was diagnosed with asthma and annexed to her Affidavit a copy of the (omitted) Hospital discharge summary dated 14 December 2010 and the annexed asthma action plan and asthma home management plan.

6. I will interpolate at this point and say that, in a sense, these paraphrases delineate much of the substantial dispute between the parties.  It has been apparent since early days that each of Mr Hellier and Ms Josey alleges that the mental health of the other is a matter for serious concern.  It is also apparent that the question of Mr Hellier’s capacity to care for Z, with the interrelated issue of Z’s asthma, has been one of considerable moment.

The Affidavit of Mr Hellier filed 22 July 2011

1. This Affidavit recited the amount of time that Mr Hellier had been spending with Z, and responded to Dr A’s report and the family report of Ms S.  Mr Hellier agreed with the recommendations of Ms S.  The Affidavit also annexed a report from Children’s Contact Service (omitted), which reported on the supervised time he had spent with Z.  I note that, in the summary of concluding comments at page 18, the writer observed:-

   Mr Hellier was observed to interact cooperatively and appropriately with his son during the supervised visits and it was documented by centre staff that the pair often demonstrated a synchronicity in their conversation and play together.  Mr Hellier attended to his son’s physical care at all times during the visits often checking his nappy at regular intervals and ensuring that his son was adequately hydrated and fed.

   Ms Josey has presented as a cooperative participant of the service.  She has expressed ongoing concern regarding her son’s asthma during the family’s time at the centre and further concern and doubt regarding Mr Hellier’s capacity to monitor and attend to their son’s health condition.  This was demonstrated by comments and concerns she has raised about Mr Hellier’s minimisation of their son’s asthma and related diagnosis.  Ms Josey was observed to actively encourage her son’s attendance at visits with his father as she farewelled him and assisted centre staff in settling Z in preparation for contact with his father.

The Affidavit of Dr A filed 28 July 2011

1. Dr A’s report was, of course, in respect of Ms Josey and Mr Hellier, but unsurprisingly, he referred to his prior engagement with them as a result of the 2009 report he had prepared in the matter of Josey & Meibos.

2. Dr A noted the history set out in the affidavits, including the controversies as to whether or not Ms Josey had threatened or attempted suicide, whether or not she suffered from occasional intoxication, and the alleged threats by Ms Josey to accuse Mr Hellier of sexually abusing her daughters.

3. Dr A paraphrased the interviews he had had with Mr Hellier and Ms Josey.  He noted, at pages 9 to 10 of his report, the fact that Mr Hellier had developed anxiety and received counselling from Ms J for a couple of months for it.  He noted that, with the exception of feeling sad and upset after the breakdown of his previous marriage, Mr Hellier had not become depressed, and denied any other psychiatric history.

4. He noted, and this reflects the observations of Children’s Contact Service (omitted), the differing views of the parents about Z’s illness.  At page 11 of 27 of his report, Dr A noted:-

   Mr Hellier said he is concerned that Z always needs medical attention when something happens.  He said the appointment for Ms Josey had been cancelled because Z may have had gastro.  He also wonders about the severity of Z’s asthma.  He believes that Ms Josey exaggerates the seriousness of Z’s illness.

5. I note that in the record of the interview with Ms Josey, Ms Josey was extremely critical of Mr Hellier.  She denied any abuse of alcohol, but admitted being prescribed antidepressants in 2004, although she could not recall why.

6. Dr A asked Ms Josey about the alleged suicide attempt on 30 July 2009 (page 14 of 27), but Ms Josey denied this being true.  She said she had an immediate allergic reaction to Lexapro and denied using alcohol as well.  Ms Josey detailed Z’s relatively numerous admissions to hospital for his asthma and Dr A noted that, according to Ms Josey, Mr Hellier denies Z being sick, and accused her of being mentally ill (page 16 of 27).

7. On page 16 of 27 of his report, Dr A noted:-

   I asked Ms Josey why she thought she had been involved in two Family Court disputes in rapid succession.  She attributed her problems to her thyroid disease.

8. Dr A set out, at pages 18 to 24, extracts from his 2009 report, and his conclusions are at pages 25 to 27.  At page 25 of 27,  Dr A asserted:-

   It is important to note the significant inconsistencies in the accounts provided by Mr Hellier and Ms Josey in the present matter.  These relate particularly to Ms Josey’s drug and alcohol use, her mental health, and suicidal behaviour.

   It is also important to note that I saw Ms Josey and Mr Hellier in the context of the previous assessment on 24/7/09, just one week before her alleged suicide attempt.  At that time, they certainly gave me the impression that they were living in (omitted) and ‘their first concern was for the three girls, as they were both concerned about Mr Meibos’ behaviour at home’.  They also said they were looking forward to the baby Ms Josey was expecting on (omitted).

   From the information provided in the present assessment, it seems clear that Ms Josey and Mr Hellier were not living together at the time of their interview with me, and that there had been considerable ambivalence about the pregnancy.  On 28/8/09, Ms Josey informed me that she and Mr Meibos had agreed on shared care of X and Y as she had not been able to get evidence of Mr Meibos’ domestic violence in front of the Court.  She blamed her lawyer for this.  At that time, Ms Josey gave no indication of any difficulties in her relationship with Mr Hellier.

   It is beyond the scope of this assessment to determine the truth or otherwise of Mr Hellier’s or Ms Josey’s accounts of these events.

9. In respect of Mr Hellier, Dr A concluded:-

   Overall Mr Hellier presented as a 43 year old man who showed no signs of any acute Axis I DSM-IV Disorder at interview.  His past history suggests that he may have suffered from Adjustment Disorder with symptoms of anxiety following his motorbike accident and again, more recently, following the break-up of his relationship with Ms Josey.  The intensity of his stated wish to be actively involved in the care of both of his children may reflect his sense of abandonment by his mother at an early age.

10. In respect of Ms Josey, the assessment was more complex, and is set out at pages 26 and 27 of his report.  Because it is quite a lengthy extract, I do not propose to repeat it in full.

11. Dr A noted that Ms Josey was very difficult to assess, at least in part because there were many inconsistencies in the history she provided.  Dr A noted that Ms Josey had suffered thyroid problems with each of her pregnancies, this being confirmed by the letter from Dr M.  Dr A noted, at page 26 of his report:-

    Both hyper and hypothyroidism can present with symptoms suggestive of an underlying psychiatric disorder however it is important to emphasise that thyroid disease is not a mental illness.  Ms Josey attributes any difficulties she did experience during the pregnancy with Z to her thyroid disease.

12. Dr A noted significant inconsistencies in Ms Josey’s account of her alcohol and drug use, which was well above the currently recommended guidelines in pregnancy.  He noted the excessive number of Lexapro tablets taken by Ms Josey, and that Ms Josey acknowledged the number of tablets she took for her alleged panic attack was significantly greater than the normal therapeutic dose, particularly for someone who had not been taking the tablets regularly.

13. Dr A noted that Ms Josey presented many aspects of her own and Z’s history in a somewhat melodramatic fashion, and that the severity of her thyroid disease during pregnancy did not appear to be consistent with Dr M’s letter.  At page 27 of his report, Dr A noted:-

    As indicated earlier Ms Josey was frequently tearful throughout the interview but denied being depressed.  She attributed her difficulties to her thyroid problems during pregnancy and the breakdown of her relationship with Mr Hellier, without acknowledging her own contribution.  Her history suggests that she may have abused alcohol and prescription drugs at times, although there is insufficient evidence to suggest that she is dependent on alcohol or other drugs.  The discrepant accounts of her ‘suicidal’ behaviour given by Ms Josey and Mr Hellier make it virtually impossible to interpret this in the absence of corroborative evidence.

    Ms Josey does not present with any clearly diagnosable Axis I DSM-IV Psychiatric Disorder, however aspects of her history and presentation are suggestive of long-standing personality difficulties or possibly an underlying personality disorder of the Cluster B variety.

The Affidavit of Mr Hellier filed 24 October 2012

1. This Affidavit supported a contravention application arising out of alleged failures by Ms Josey to make Z available to spend time with Mr Hellier pursuant to Court orders.

The Affidavit of Mr Hellier filed 5 December 2012

1. Once again, this Affidavit supports the contravention application and details the alleged failures on the part of Ms Josey to make Z available.

The Affidavit of Mr Hellier filed 11 December 2012

1. Once again, this is a contravention application affidavit.

The Affidavit of Mr Hellier filed 14 February 2013

1. This is another contravention affidavit.

The Affidavit of Ms Josey filed 18 February 2013

1. This Affidavit is essentially Ms Josey’s response to a contravention application filed by Mr Hellier.  It details Ms Josey’s concerns about Mr Hellier’s alleged failure to respond appropriately to Z’s medical conditions, and most particularly his asthma.  It goes on to make complaint of multiple false notifications to DHS, and sets out, at some length, Ms Josey’s version of the history between the parties.  The Affidavit is strongly critical of Mr Hellier and accuses him of seeking to manipulate third parties, including doctors, not least by taking a copy of one of Dr A’s reports to them.

The Affidavit of Mr Hellier filed 22 July 2013

1. This is Mr Hellier's Affidavit in support of his application to have Z live with him after the incident on 17 July 2013.  In a sense, it is at this point that we enter upon the immediate history of this matter.

2. Notwithstanding this, Mr Hellier felt it appropriate to revisit a number of historical incidents.  Mr Hellier set out the removal of the children from Ms Josey by Victoria Police following the incident on 17 July 2013.  He went on to depose to the alleged lengthy history of drugs, alcohol abuse by Ms Josey, and attempts at suicide.  He rehashed the incident when Z lost a front tooth in November 2011.  This took place while Mr Hellier was in (country omitted), and the parties’ failure to communicate appropriately about it led to a notification to Department of Human Services (‘DHS’).  This matter was dealt with at some length and formed part of the basis for Mr Hellier’s asserted fears as to Ms Josey’s mental condition and the resulting risks to Z.

The Affidavit of Ms Josey filed 8 August 2013

1. This Affidavit is Ms Josey’s response to the removal of the children from her.  It sets out some background history, but naturally enough, concentrates on the events of 17 July 2013. 

2. In essence, Ms Josey denied drinking to excess, although she admitted having a couple of glasses of wine.  It annexed the protective undertaking that Ms Josey signed for DHS on 19 July 2003, and a limited Intervention Order made without admission against Ms Josey on 27 July 2013.

3. The Affidavit repeated Ms Josey’s concerns that Mr Hellier would not properly treat Z’s asthma, and made complaint of failure on Mr Hellier’s part to pay child support.

4. The Affidavit went on to respond to earlier affidavits filed by Mr Hellier and referred, inter alia, to the allegation of Mr Hellier that Ms Josey had a false identity in the name of (omitted), something that Ms Josey denied.

The Affidavit of Ms Josey filed 4 September 2013

1. This Affidavit sets out the history of the spend time arrangements that had occurred more recently, and particularly since the children were taken from Ms Josey’s care.  Ms Josey set out what she could offer the children, and referred to the satisfactory living arrangements at her home, her support network of friends, and her capacity to care for them.

2. Ms Josey set out a history of her health and referred to her thyroid problem.  She deposed to being very sensitive to medications and alcohol, and being very careful, as a result, with what she took. 

3. She annexed to the Affidavit, as J3, a reference from her treating clinical psychologist, Ms H, and as J4, a medical certificate from Dr N, dated 7 August 2013.  Dr N’s report describes Ms Josey as a very caring mother, and referred to the prescription of Zoloft for Ms Josey on 12 July 2013, which “unfortunately she had a side-effect of increased anxiety and panic attacks.  Due to this she stopped the medication on day 4 of the treatment”.

4. Ms Josey made further observations arising out of her inspection of the subpoenaed material.

The Affidavit of Mr Hellier filed 16 September 2013

1. Mr Hellier responded to Ms Josey's Affidavit (a pattern that repeated itself through to trial).  I would characterise the affidavit material as being perhaps overly minutely concerned with incidents that had occurred, and I note Mr Hellier’s concern expressed at paragraphs 31 and 32 of the Affidavit as to Ms Josey’s overtreatment of Z’s asthma and the problems between the parents about this issue.

The Affidavit of Mr Hellier filed 18 September 2013

1. Relevantly, in this Affidavit, Mr Hellier deposes to Ms Josey having slurred speech on 15 September 2013.  It was upon this evening that Ms Josey was taken to the (omitted) Hospital by the police pursuant to the Mental Health Act 1986 (Vic).

The Affidavit of Ms Josey filed 19 September 2013

1. This Affidavit sets out Ms Josey’s version of the events of 15 September 2013 and she annexes to the Affidavit, as J1, her discharge letter from the hospital on 15 September 2013, which relevantly reads:-

   Brought in by police, section 10.  Ex-partner concerned about suicidal ideation.  ECATT psychiatric team involved and deemed patient fit for discharge after.

The Affidavit of Ms Josey filed 17 October 2013

1. This paragraph brought the position up to date as regards Ms Josey spending time with Z and X and Y.  She annexed, as J1, a copy of a letter from DHS, undated but said to have been received on 10 October 2013, advising Ms Josey that DHS would have no further involvement with her family.

The Affidavit of Dr A filed in Court on 2 December 2013

1. This Affidavit has already been traversed in the Josey & Meibos matter.

The Affidavit of Mr Hellier filed 12 December 2013

1. Once again, this was an update report by Mr Hellier.  He did, however, print out text messages between the parties from 23 October and 30 November 2013, which are annexure ‘A’ to the Affidavit.  The text messages speak for themselves.  They show a number of concerning assertions by Ms Josey, and the general tenor of Mr Hellier’s responses are courteous and to the point, although there do not appear to be nearly as many responses as emails from Ms Josey.  Much of what Ms Josey had to say in these messages is strongly accusatory of Mr Hellier.  They include a number of assertions to the effect that Mr Hellier continues to suffer from mental ill-health.

The Affidavit of Ms Josey filed 13 December 2013

1. Once again, this is an update of time spent, combined with refutation of earlier assertions made by various players in the proceedings. Ms Josey took issue with a number of matters in the s.11F report by Dr B released on 22 October 2013 and repeated her difficulties arising out of her thyroid disease.

2. Ms Josey, nonetheless, asserted that, despite disagreeing with Dr B, she had taken on board his recommendations to undertake drug and alcohol assessment and annexed a report to the Affidavit as J6 in this regard.  The report assessed Ms Josey as being low risk of problematical alcohol use but moderate risk of anxiety.

3. It is not necessary to paraphrase the Affidavit in greater detail, although it is of some considerable length, because, in substance, it essentially retraverses matters already set out in earlier affidavit material, including extensive criticisms of both Mr Hellier and Mr Meibos.

The Affidavit of Mr Hellier filed 19 February 2014

1. This was Mr Hellier’s trial Affidavit.  It largely recapitulates his earlier materials.  To the extent that it raises new ones, I do not propose to traverse them.  The reasons for this omission will become apparent in due course, but for these purposes I would simply say that there is more than enough material before the Court to enable a decision to be reached without adding to it further.  A substantial number of the annexures constitute text messages passing between the parties.  Their character is, in large part, in my view, no more than consistent with the material I have already analysed.

The Affidavit of Ms Josey filed on 17 March 2014

1. As might be expected, this Affidavit was a detailed paragraph-by-paragraph refutation of the matters asserted by Mr Hellier.

The Submissions and Evidence at Court

1. There was an initial skirmish as to the objections to subpoenas on the part of Ms Josey. I ruled on these at the time and it was clear that the medical evidence was potentially relevant and steps were taken to safeguard Ms Josey’s privacy as best the circumstances allowed.

2. Counsel for Mr Meibos further opened his case.  It seemed appropriate to me, given that Ms Josey was self-represented, that those with lawyers should go first.

3. Counsel confirmed that Mr Meibos is not now seeking (country omitted) passports for the children and did not oppose telephone time spent with Ms Josey although he sought that there should be telephone time spent with Mr Meibos on such occasions as the children might be with their mother. 

4. It should be noted that as earlier indicated the distillation of the evidence which follows does not purport to be anything other than taken from my notes.  It is necessarily not a transcript.  I believe, however, it sufficiently and accurately identifies the purport of what the witnesses said. Self-evidently as with the affidavits, I have not traversed each and every matter asserted. I have concentrated on the matters that I regard as significant.

The Evidence in Chief of Mr Meibos

1. Mr Meibos adopted his trial Affidavit as true and correct.  He confirmed further that X had been with him to (country omitted) on three occasions.  He has close contact with his family in (country omitted) and X speaks to them by Skype.  Y gets bored.  He said he was not in any conspiracy with Mr Hellier whom he had only met (although it is clear they are now on first name terms) three to four times until the incident of 17 July 2013.  He confirmed that the proposed supervision of Ms Josey’s time should be paid for equally by him and Ms Josey.

Mr Meibos under Cross-Examination by Ms Josey

1. Mr Meibos confirmed that the children are doing fine at school.  He has not visited (country omitted) in the last five years.  He denied saying he would retire and return to (country omitted).

2. Mr Meibos was pressed about Mr Hellier’s remarks to Dr A and Mr Meibos’ responses were, in my view, unconvincing.  He said that Mr Hellier had told Dr A what he had been told by Ms Josey.  Given the significant criticisms made at that time by Mr Hellier to Dr A, it is perhaps however not surprising that Mr Meibos was somewhat defensive.

3. Mr Meibos confirmed that he pleaded guilty to the assault in November 2006 and said he had never denied it.

4. Mr Meibos was cross-examined by Ms Josey at some length about the possibility of his colluding with Mr Hellier, which from the questions put is clearly a matter which deeply concerns Ms Josey.  I found his denials convincing.

5. Mr Meibos was asked questions about an instance in January 2010 when it appears X may have been bitten by a Rottweiler.  The denial was not wholly convincing because Mr Meibos indicated that he took X to hospital in (omitted) with a tooth mark on her face. 

6. Mr Meibos was asked questions about his employment and confirmed that he had commenced working in July 2013 after being unemployed from about April 2011.  He confirmed that he is a (occupation omitted).  He was in full time employment until 2011.

7. He confirmed that the co-parenting between him and Ms Josey had worked generally well up until the major difficulty in July 2013.  The co-parenting was flexible.  He and Ms Josey spent Christmas Day and other celebrations together and the relationship was amicable most of the time.  He confirmed that each of himself and Ms Josey consumed alcohol but said that she had not consumed too much.  They attended school plays together. 

8. Mr Meibos confirmed that he knew that Ms Josey had mentioned difficulties arising from her thyroid problems and psoriasis but did not remember a psychiatrist appointment in 2002 (scarcely surprisingly).  He did not remember Ms Josey being depressed and anxious during pregnancy and was not aware of symptoms of thyroidism except weight gain and loss.  He did not know it might lead to mood problems and did not recall Dr A’s report. 

9. Mr Meibos said he first met Z on the date of Z’s birth or the day afterwards and saw him quite a lot.  He said that Ms Josey had told him about issues with Mr Hellier.  He confirmed that Ms Josey appeared to be a doting mother and that Z did not seem molested, unclean or unfed.  Mr Meibos did not know about asthma and was not himself asthmatic, although he remembered Ms Josey telling him several times about Z’s asthma.  He said he had not studied Mr Hellier’s affidavits.

10. Some of Mr Meibos’s answers were notably fair.  In response to a question on one occasion he said words to the effect, “that is not to say it did not happen but I cannot remember it.”  This answer was given with evident sincerity.

11. Mr Meibos confirmed that he did not think the girls had not been bathed or given appropriate medical treatment.  He remembered problems with X’s ears and confirmed that grommets were not put in and that the parents had decided to try a lactose free diet. 

12. He confirmed that he had seen bruises on the children.  X at one stage had a bruise on her face and told Mr Meibos that Z had hit her in the face with a building block.

13. The concessions Mr Meibos readily made as to the generally cooperative parenting regime between himself and Ms Josey and his general preparedness to make concessions were all part of his generally impressive demeanour in the witness box.

14. Mr Meibos was pressed by Ms Josey about the incident on 17 July 2013.  He confirmed there were marks on X’s back but was not sure if the police had looked at these.  X did not require medical attention.  The marks were on the upper part of the back and Mr Meibos had not told the police anything. 

15. Mr Meibos gave a detailed account of the events of 17 July 2013 which I found convincing.  He said that Ms Josey had fallen over twice outside her house and that X said herself that Ms Josey had been drinking.

16. As might be expected, Ms Josey pressed Mr Meibos about the various text messages which he had alleged were sent by her.  It is sufficient to say that his answers were palpably those of an honest witness.

17. Mr Meibos confirmed the interruptions to time with Ms Josey that followed the 17 July 2013 incident.  He asserted that Mr Josey had pressured Y when she could isolate her and had told Y that the father was old and would die soon.  He said this did not go down well.  He said it was not true that Y had been crying to see her mother and he denied having read Ms M’s reports. 

18. Mr Meibos confirmed that the three children were close and he had had three to four play dates with Mr Hellier usually on a weekend.  She confirmed that it was important for X and Y to have a relationship with Z. 

19. Mr Meibos said he wants to be able to go to (country omitted) and that the girls want to go.  He said he had been in the (country omitted) in 2006 and 2007.  Mr Meibos said that Ms Josey had mentioned (omitted) before but was not aware that Mr Hellier had harassed her about this issue. 

20. Mr Meibos was pressed as to whether he would continue to live where he is.  He said he would like to live in (omitted) but might have to move.  He said he would try to keep the children at (omitted) School and subsequently (omitted) Secondary School. 

Cross-Examination by the Independent Children’s Lawyer

1. Mr Meibos confirmed that he was not seeking (country omitted) passports and that it seemed to him that Ms Josey was convinced he was trying to relocate to the (country omitted).  He said the children would benefit from dual citizenship.  X has been three times and Y one time to that country.  He confirmed he would provide airline tickets and itineraries and the like were any such travel to occur. 

2. Mr Meibos was further cross-examined about the incident in November 2006.  He confirmed that he was charged and convicted of family violence.  He said that there had been an argument and he had pushed Ms Josey against a wall and the police came.  An Intervention Order was granted to Ms Josey for 12 months as a result.  He confirmed he pleaded guilty in the criminal case and was ordered to pay money to a women’s violence fund.  He was found guilty with conviction albeit that it was in fact a bond.

3. Mr Meibos said he faced no other charges and had no pending charges.  He said there were mutual Intervention Orders between himself and Ms Josey when Ms Josey moved out of (omitted) but these were no longer current. 

4. Mr Meibos was taken to the allegation in Ms Josey’s affidavit material of an assault in 2004.  He denied punching Ms Josey and said that he did not think Ms Josey had had a miscarriage in 2004.  He said he had never heard about this matter until approximately eight months ago. 

5. Mr Meibos confirmed that he and Ms Josey had had arguments, but usually the children were in bed by the time these occurred.  He denied being ordered to do an anger management course.  When taken to an allegation in Ms Josey's Affidavit of an assault on X, Mr Meibos said that X was behaving badly, and he grabbed her to remove her from Y.  He denied ever hitting his children, and denied that his father had ever hit him.  I found these denials convincing.

6. Mr Meibos was questioned about the arrangements for the children when in his care.  He confirmed that he takes them to and from school.  He is able to do this because he works as a casual from approximately 9.30 am until 2.45 pm.  He denied that the children were in after school care.  He said that his employment might become full-time, but that he could still look after the children.  He described the children’s routine at the weekend in relatively straightforward terms.  He confirmed that he may have ultimately to sell his house, but not at least in the next couple of years.  The children will stay at schools in (omitted). 

7. Mr Meibos confirmed that both he and X had spoken to the social worker attached to the school, and that X’s doctor had suggested mental health plans, but that X did not want this at the moment.  She felt she had spoken to enough people recently.  Mr Meibos’ evidence was that X had friends at the school, and Y has occasional play dates. 

8. Mr Meibos was cross-examined about the arrangements for the children at his home, and it is sufficient to say that these were clearly adequate.  It appears that if Y wakes up at night she gets into bed with her father, and Mr Meibos does not discourage this, but X has not done so for a long time.

9. Mr Meibos confirmed that X did not like Ms Josey’s emails. 

10. He also confirmed an unremarkable medical history on his part.

11. He confirmed that he adopted the recommendations in the family report, and that he thought Ms Josey needed treatment.  He said he did not wish to contribute to the cost of supervision of Ms Josey’s time with the children.  He confirmed that he would not be confident being a supervisor and/or dealing with Ms Josey when supervision should cease. 

12. Nothing of any moment emerged in re-examination.

The Opening of Counsel for Mr Hellier

1. Counsel confirmed that Mr Hellier generally followed the recommendations in the family report, but sought that time be fortnightly, rather than weekly, on the part of Ms Josey, and that there should be no telephone time with Z.  Mr Hellier seeks sole parental responsibility, and that Z live with him, and that supervised time be once a fortnight on a flexible basis.  He sought that there be no texts sent by Ms Josey.

The Evidence of Mr Hellier in-chief

1. Mr Hellier confirmed that he is a student.  He had read the family report, and sought sole parental responsibility.  He confirmed that A is with him every second fortnight, and detailed the activities undertaken when Z is in his care.

2. He said that telephone contact was inappropriate.  He said that Ms Josey had said to Z, “Your home is with your mum,” when Z said he was at home. 

3. He traversed matters in Ms Josey's Affidavit.  He denied ever being asked to undergo a psychiatric assessment, and denied defrauding Centrelink, and denied defrauding the Australian Taxation Office.  In essence, he took issue with every matter asserted by Ms Josey’s trial Affidavit.

1. Dr P paraphrased information from Ms E, Ms Josey’s drug and alcohol counsellor, and Ms H.  Both of these were favourable in their reports on Ms Josey.

2. The interview with X is recorded at paragraphs 61 to 69 of the report.  I note that X confirmed (paragraph 62) that “Mum sends horrible messages to me about him, like, ‘He’s old and he’s going to drop dead’”.

3. X confirmed that when living with mum it was “sometimes okay, other times she’d have too much to drink”, and that when her mother had too much to drunk she was “sometimes violent”.

4. I further note that X’s account of the event that precipitated her removal from Ms Josey’s care was consistent with her statement to police and that her mother had hit her a couple of times on that occasion and had slapped her on the face the day before (paragraph 64).  Taken as a whole, X’s reports to Dr P about her parents were clearly consistent in the main with the positions asserted by Mr Meibos.

5. The interview with Y, as recorded at paragraphs 70 to 78 of the report.  I note that Y confirmed her mother’s excessive consumption of alcohol and her attempts to pressure the children (paragraph 75).  Y said this was “good but sometimes she’d start pressuring us, like, ‘You have to come back’”.

6. It is sufficient to note the conclusion at paragraph 78 of the report:-

   The memorandums from the previous Child Inclusive Conferences suggest that Y’s preference for her living arrangements changed over time (October - December 2013), shifting from a preference to return to the shared-care arrangement to wanting to remain in her father’s primary care.  She maintained this at interview, seeking only brief time with her mother.  Her concerns about her mother’s behaviour towards her and her siblings remain fixed.

7. The interview with Z is described at paragraph 79 to 80 of the report.  They do not take the matter much further.

8. The observations of the children with their fathers was unremarkable.

9. The observations of the children with their mother are recorded in some detail at paragraphs 82 to 85 of the report.  I note that all the children greeted their mother affectionately when she arrived (paragraph 82).  I note that Ms Josey behaved appropriately when it was time for the interview to end and that none of the children show signs of distress upon separation (paragraph 85).

10. I note that Dr P had spoken with Ms P, assistant principal at the (omitted) Primary School, which reported “that both X and Y were travelling well at school, academically and socially”.  I note that while the school had found Mr Meibos “good” but that staff other than Ms P who had met Ms Josey described her as “demanding and erratic” and had observed her to be often alcohol-affected during interactions (paragraph 87).

11. I note that Z was generally unaware of the parental dispute probably largely as a result of his age.  At paragraph 90 and 91 however Dr P observed:-

    90. Y and X appear more burdened by the dispute than their brother.  Y’s report suggests that Ms Josey has accurately identified Y as the child most vulnerable to emotional pressure and has targeted her, attempting to invoke feelings of guilty and responsibility.  The writer saw one example of this during the observation, when Ms Josey spoke sadly of a neighbour’s cat missing Y.  This appears to be stressful and upsetting for Y and to have had the reverse effect of that possibly intended by Ms Josey, decreasing Y’s enjoyment of her time with her mother and leading her to preference supervised time as a means of protecting her from such pressure. 

    91. X’s private interview revealed that she is deeply hurt by her mother’s actions towards her, including the sporadic physical violence, scapegoating and what appears to be highly personal emotional abuse via text message.

12. Dr P continued at paragraph 92:-

    92. Despite these experiences, both girls value their relationship with their mother and seek to maintain this, albeit in a safe way.  Their preference to continue living primarily with their father appears based on their experience of their mother’s inconsistency in care giving and volatility, which they related to alcohol misuse, and their greater sense of safety and predictability in their father’s care.  It is the writer’s view that both X’s and Y’s views appeared based on their own experiences of their parents rather than any successful coaching or pressure from either parent and should be given weight accordingly, particularly with respect to their reluctance to return to their previous shared-care arrangement and their desire to spend greater time with their brother and mother.  However, the writer is of the view that little weight can be given to the children’s assessment about the necessity of supervision of their time with their mother, and they are not of sufficient maturity to be able to evaluate the short- and long-term risk to their wellbeing from this contact.

    93. Professionals, the children and the fathers have each raised concerns independently about Ms Josey’s problematic alcohol use and erratic behaviour, including emotional and physical abuse of the children.  Dr A has noted that there is increasing evidence that Ms Josey has a personality disorder of the Borderline type.  Her presentation at interview was consistent with this personality style, which is marked by a pattern of instability in interpersonal relationships, self image, affects and impulsivity. At interview Ms Josey presented as highly dysregulated and difficult to contain.  She identifies as the victim in these disputes, which she views as a conspiracy, and shows no insight into the impact of her actions on her children, laying blame squarely on the fathers and X, which is contrary to the information from all other sources. 

    94. Ms Josey’s behaviour towards her children, as evidenced by the children’s statements and the content of Ms Josey’s text messages to X, indicates that, when distressed, she is unable to understand their dependence and vulnerability.  Her vitriolic text messages to X suggest that, when gripped by anger, she assigns distorted meaning to X’s actions; she views X as a powerful persecutor who has committed an unforgiveable betrayal and who is no longer her idealised, ‘favourite’ child but a object to be cast away. Ms Josey appears to have little respect for the Intervention Order restricting her from abusing X, as her behaviour has continued unchecked throughout the term of this Order (expiry March 2014).  This is consistent with her pattern of emotional dysregulation.

    95. Such distorted thinking, perception and poor restraint and regulation of her interpersonal behaviour significantly raises the risk of both emotional and physical harm to the children by Ms Josey.  That she displays no insight into the impact of her behaviour on the children and has failed to engage meaningfully with any support services to address the reasons for the children’s removal from her care heightens the risk.  For these reasons, the writer suggests that any time between Ms Josey and the children be supervised for the foreseeable future.  It is also suggested that Ms Josey be restrained from communicating with any of the children via text message, as this currently grants Ms Josey unfiltered access to X at all times, a privilege she has abused to X’s detriment.

    The children will benefit if the amount of parenting time granted to Ms Josey is commensurate with her current level of dysfunction, with increased time contingent on improvement in her insight and behaviour;  it is recommended that, at this time, Ms Josey’s time with the children continue to be brief (e.g., two hours)  but this occur more frequently (e.g., weekly) than fortnightly.  Realistically, the time may be shaped by supervisor availability and costs.  The fees associated with professional supervision can make this an unfeasible long-term arrangement for many families.  Kith or kin supervision is preferable, though it will be up to the parties to identify a mutually accepted person who will reliably be child-focused and intervene if Ms Josey’s behaviour is inappropriate.

13. At paragraph 97 Dr P observed that:-

    Given the low likelihood of the parents being able to re-establish a cooperative co-parenting alliance in the near future, and Ms Josey’s impaired capacity to act in the best interests of X and Y, the writer considers sharing parental responsibility as problematic for X and Y and is of the view that it is in their interests that consideration be given to this responsibility resting solely with Mr Meibos for the foreseeable future, as he is the parent who appears to be most able to focus on their needs.

14. At paragraphs 98 to 100 Dr P considered Mr Hellier and Ms Josey.  Once again she considered that it was in Z’s best interests for one parent to assume sole parental responsibility.  She said “on the basis of the available information, Mr Hellier currently appears more capable of assuming this responsibility than Ms Josey”.

15. At paragraph 99 Dr P continued:-

    The writer rejects Ms Josey’s contention that Z’s relationship with a sibling born of his father is less valid than a sibling born of his mother;  for Z, there are three important sibling relationships (with half-sisters A, X and Y) that any parenting arrangements need to consider.  A is herself in a ‘50/50’ shared-care arrangement between parents and it was Mr Hellier’s hope that Z’s arrangements would eventually evolve in this way, prior to the events of July 2013 unfolding.  If Z is to remain in his father’s primary care, it will be important for X and Y to be able to spend time with him on a regular basis, with such times not to be restricted only to those times with their mother.

16. Dr P went on to conclude that Mr Hellier and Mr Meibos would be likely to foment such relationships.  At paragraph 101 she wrote:-

    The writer is concerned that the children’s relationships with their mother will continue to be only partially satisfactory for them unless Ms Josey develops her understanding of the impact of her behaviour on them.  There are several evidence based programs for assisting people with Borderline personality style difficulties to increase their control over their emotional regulation and improve their relational health.  Of course, treatability is dependent on a person’s motivation, ability to engage and confront relationship patterns and the capacity to endure negative experiences with sufficient support without leaving treatment.  It is noted that denial of problems or persistent blame or criticism of the child for current problems are contraindications to treatment for parents who have abused their children.  Nevertheless, the children would benefit from Ms Josey seeking this support.

17. Dr P went on to opine that Ms H might not have the relevant expertise to discharge this sort of function and observed at paragraph 103:-

    Disorders of personality are by definition enduring patterns of inner experience and behaviour that are inflexible and pervasive across a range of personal and social situations.  Given the difficulty in predicting any change in Ms Josey that might reduce the risks to the children in her care, it seems in the children’s interests to provide them with the certainty of a final arrangement that provides for increases in their mother’s time and reduction in the conditions upon this time rather than an interim arrangement that requires a return for further assessment and review.  If the Court is satisfied that the fathers can support the children’s relationships with their mother, the children may best be served by a final arrangement whereby increases in time and the progression to unsupervised time is determined by the fathers.  When Ms Josey is able to demonstrate progress over a significant period of time, such as restraint on emotional abuse of the children, consideration may be given to her seeking a variation of the Final Orders.

18. Dr P then went on at paragraph 104 to set out her recommendations which gave sole parental responsibility to the fathers and provided for limited supervised time with Ms Josey and the children, together with a ban on texts by Ms Josey to the children.

DHS Material

1. I have not traversed the enormous amount of material subpoenaed from DHS.

2. I have also not dealt with the complications introduced into the case by the fact that, owing to administrative error within the Court, Ms Josey was given substantial access to unredacted DHS materials.  This matter has been dealt with by the Court with DHS.  It is sufficient in my view to refer to the extract of the DHS report referred to by Dr P that I set out above.

Conclusions on the Facts

1. It is, I regret to say, overwhelmingly clear that despite the reservations I have expressed about the evidence of the two fathers, in the main they were truthful witnesses.  As I have indicated, it is very possible that Ms Josey is a truthful witness, in the sense that she believes very strongly the statements that she made to the Court by way of evidence are indeed truthful. 

2. Regrettably, however, it is quite clear that on the central, critical issue, namely Ms Josey’s mental health and its sequelae, she is utterly mistaken.  It is quite clear that she is on occasion very severely affected by alcohol.  It is clear that she has sent horrible text messages to X and to Mr Meibos, despite her denials.  The state of the medical evidence is not absolutely conclusive, but it is far more probable than otherwise in view of the evidence of Dr A and Dr P, which I make it clear, if I have not done so, that I accept, that Ms Josey does have a borderline personality disorder, and that the difficulties she suffers from are not wholly, or indeed relevantly at all, caused by her thyroid problem.

3. It is equally clear that Ms Josey is utterly unable to accept that this is so.

4. It is quite clear that the incident that led to the removal of the children in July 2013 happened exactly as X said it happened and Mr Meibos said it happened.  It is not the subject of any conspiracy by the fathers or otherwise.  Ms Josey’s denial of this extremely serious behaviour on her part is part and parcel of her illness, but it is fatal to her credit.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.

Parental Responsibility

1. In the face of the evidence in this case as a whole, and more particularly the evidence of Dr P, it is immediately apparent that sole parental responsibility should be ordered in favour of Mr Meibos and Mr Hellier.  It is clear there has been family violence by Ms Josey (albeit that there has certainly been family violence by Mr Meibos also).  It is also clear in the face of Ms Josey’s lack of insight and incapacity to cooperate with either Mr Meibos or Mr Hellier that an order for joint parental responsibility would not be in the children’s best interests.

2. It is clear in these circumstances that it is not in the best interests of the children for the parents to have equal shared parental responsibility for them (s. 61DA(4) of the Act).

3. Accordingly, the Court is at large to consider what arrangements will best promote the children’s best interests. This requires consideration of the matters contained in s.60CC of the Act although, of course, I have regard to the objects set out in s.60B of the Act.

The Children’s Best Interests - The Primary Considerations

Section 60CC(2) of the Act

1. As the material as a whole plainly shows, there is a benefit to the children in having a meaningful relationship with both of their parents. Even X, whose treatment by Ms Josey has been so inappropriate, according to Dr P would still benefit from time with her. However, the Court is required to protect the children from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Pursuant to s.60CC(2A) of the Act the Court is to give greater weight to this second consideration.

2. As I have indicated the children have been exposed to family violence in the past and are at risk of abuse or violence in Ms Josey’s care. 

The Additional Considerations

Section 60CC(3)(a) of the Act

1. As earlier indicated Dr P’s professional opinion is that the views of X and Y should be given weight.  I accept that this is correct. 

Section 60CC(3)(b) of the Act

1. The evidence as a whole in this case is clear.  X and Y have a loving and close relationship with their father but for the reasons given their relationship with their mother is more problematic.  They have also an excellent relationship with Z and to an extent with A.  There is nothing to suggest that extended family play any particularly significant role in their lives although I note that X attends upon Skype regularly with her uncle in (country omitted).

2. Z has an excellent relationship with his father and his relationship with his mother appears to be a functioning one.  Once again he has an excellent relationship with X and Y and also in his case with A. 

Section 60CC(3)(c) of the Act

1. In the context of the findings already made this subsection does not take the matter much farther.  Plainly all parties have endeavoured to participate in making decisions about the children and to spend time with them and to communicate with them.  The intensive litigation is proof of this.

Section 60CC(3)(ca) of the Act

1. Here the picture might be thought to an extent to be confused.  The extent of Mr Hellier’s endeavours to fulfil his parental roles is, perhaps, not entirely clear.  In the context, however, of the nature of the dispute before the Court this subsection is of little significance.  Plainly all of the parents have adopted positions which would suggest they wish to fulfil their obligations to maintain the children.

Section 60CC(3)(d) of the Act

1. The matters raised by this subsection, of course, would be vividly felt by the parties.  The children have been living with their respective fathers since about mid‑last year and have clearly adapted well to this.  Given the reservations that X and Y have expressed about their mother any change of residence would be very distressing to them.  Z appears also to have adapted well to living with his father and a change would be disruptive.

2. In Z’s case the difficulty is not so much the effects of the change per se but the risks he would run through his mother’s difficulties were he to be living with her. 

3. It is also the case that in the current residence arrangements X and Y will get to spend regular time with Z and this will plainly be more difficult were he in the full time care of his mother given the difficulties between the parents.  I appreciate that there has been historically less difficulty between Mr Meibos and Ms Josey than between Mr Hellier and Ms Josey but this would still be a difficulty.

Section 60CC(3)(e) of the Act

1. There are real issues of practical difficulty with supervised time in relation to costs.  These will impact upon the parties on any view.  In my opinion all three adults should contribute to the costs of supervision albeit that their financial circumstances are in each instance strained. 

Section 60CC(3)(f) of the Act

1. Mr Meibos and Mr Hellier appear from the evidence to be well capable of providing for the needs of the children including their emotional and intellectual needs.  Unfortunately Ms Josey really struggles in this regard owing to her ill-health. 

Section 60CC(3)(g) of the Act

1. In a sense this has been traversed already.  The views of X and Y have already been noted as has their age.  The personalities and difficulties of the parents have been noted. 

Section 60CC(3)(h) of the Act

1. (Not relevant)

Section 60CC(3)(i) of the Act

1. Although this is obviously an important matter it has in my view been sufficiently already dealt with.  For the reasons given Mr Meibos and Mr Hellier are at least satisfactory but Ms Josey is not.

Section 60CC(3)(j) and (k) of the Act

1. Once again although these are very important matters, they have already been traversed.

Section 60CC(3)(l) of the Act

1. I accept the position of the Independent Children’s Lawyer that it is vital in this case to produce what are final orders.  These parties have been embroiled in litigation for a long time and on any view of the matter the litigation has been very damaging for Ms Josey’s mental health.  It must come to an end.

Section 60CC(3)(m) of the Act

1. Although I have emphasised this already, Ms Josey’s mental health stands at the front and centre of this dispute.  The antithetical outcome to the position for which she has contended must be given appropriate weight.

2. I note that Ms M’s report was generally favourable to Ms Josey, but even she had to cease cooperation with Ms Josey owing to her ultimately erratic behaviour.

Conclusion

1. Taking all of these relevant matters into consideration it is my very firm view that the orders sought by the Independent Children’s Lawyer are appropriate. I note that the orders 13 and 14 are put in the alternative as are orders 18 and 19.

2. In my view the materials show that order 13 should be made. Ms Josey’s behaviour in sending emails and text messages and her telephone communications with the children, regrettably, mean that she should be prevented from this means of communication.

3. Likewise, I accept that it is appropriate that these proceedings should come to an end in the form envisaged by order 18. 

4. The submissions made by the Independent Children’s Lawyer in closing submissions were cogent and to the point and I accept the force of them.

5. One matter not addressed by the Independent Children’s Lawyer is whether time should be spent with Ms Josey weekly or fortnightly. Dr P’s report and oral evidence makes it clear that weekly time is preferable in the best interests of the children.

6. I accept the position of the Independent Children’s Lawyer, that it is desirable to have orders that bring this matter to a conclusion. 

7. As just indicated, I also accept that the orders proposed as to Ms Josey’s spend time regime with the children should remain as they presently are and have been for some time. Although Dr P was in favour of time on special days, it seems to me that this does not fit the ongoing pattern I am going to continue. I will hear further from the parties about this matter.

8. The final issue I should deal with is the question of travel to (country omitted).  There is no doubt that it in the children’s best interests to go to (country omitted).  They have family there with whom at least X has some regular contact.  It is part of their heritage.  I should make it completely clear that there is no risk whatsoever of Mr Meibos seeking to relocate to (country omitted).  I accept his denials.  He has lived in Australia for a long time.  Further, (country omitted) is a Hague Convention country in any event.  Ms Josey’s insistence that Mr Meibos was conspiring to return to (country omitted) with the children is further evidence of her state of health.  There should be orders enabling Mr Meibos to apply for an Australian passport without the consent of Ms Josey having been obtained.  Orders should also be made for Ms Josey to be given appropriate notice of any such travel and accommodation details to the extent reasonably practicable.

9. Mr Hellier's objection to a passport order for Z seems reasonable in the circumstances. I will not make any passport order in his case.

10. I have drawn up a draft minute of orders to give effect to these conclusions.  I will give the parties an opportunity to consider them before making final determination.

I certify that the preceding three-hundred-and-sixty-two (362) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  25 June 2014