JOSEY & MEIBOS AND HELLIER & JOSEY (No.2)

[2015] FCCA 1491

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEY & MEIBOS AND HELLIER & JOSEY (No.2) [2015] FCCA 1491

Catchwords:
FAMILY LAW – Protracted parenting dispute – extensive judgment and orders in 2014 providing pathway for mother to address her borderline personality disorder – mother not accepting Court’s findings – refusal by three independent supervisors to continue supervision – no prospect of successful future supervision – Independent Children’s Lawyer seeking suspension of orders for supervised time until mother addresses her mental health issues – risk to children if orders not suspended – orders made as sought by Independent Children’s Lawyer.

Legislation:  

Family Law Act 1975
Federal Circuit Court of Australia Act 1999, s.17A

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 date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Melbourne

Delivered on: 10 June 2015

REPRESENTATION

Counsel for Mr Meibos: Ms Tiernan

Solicitors for Mr Meibos: Not Indicated

Mr Hellier: In Person

Ms Josey In Person

Counsel for the Independent Children’s Lawyer: Mr Lynch

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

ORDERS

1. That orders 4, 5 and 6 of the orders of the Federal Circuit Court made on 24 June 2014, as to the mother’s time with the children be suspended.  

2. That order 21 of the orders made 24 June 2014 (the mother’s liberty to apply) remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Josey & Meibos and Hellier & Josey (No.2) 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

And

MR MEIBOS

Respondent

MLC 10313 of 2010

MR HELLIER

Applicant

And

MS JOSEY

Respondent

REASONS FOR JUDGMENT

Introductory

1. These two matters were heard together and were the subject of judgment and orders made on 24 June 2014. 

2. The matter presently before the Court is an application by the Independent Children’s Lawyer in both proceedings, filed 13 March 2015 by which the Independent Children’s Lawyer seeks to suspend the mother’s time with the children the subject of the proceedings.  The Independent Children’s Lawyer’s application is supported by both Mr Meibos and Mr Hellier and strongly resisted by the mother, Ms Josey.  For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.  Like my earlier judgment, which I noted would cause the mother considerable distress, this outcome will again be deeply hurtful to her, but in the circumstances, as I shall hopefully be able to describe them, they are the orders that are in the best interests of the children with whom we are concerned.

Background

1. These parties have been litigating against one another for a protracted period of time and on a wide scale, as is shown by the two box files presently created.  On 20 June 2014, I handed down judgment and draft orders, which were subsequently finalised on 24 June 2014.  The orders, which were relevantly indistinguishable in the two matters, provided for the children to live with their fathers and spend time with the mother once a week for two hours.  The time was to be supervised as directed by the Independent Children’s Lawyer or other professional supervisors as agreed and the costs of supervision were to be shared equally between the parents.  By order 9, I directed the mother 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 the parenting of her children.

2. By order 11, I provided that the mother be at liberty to send cards, gifts and presents to her children on special occasions, but by order 14, I restrained the mother from having telephone communication with the children.

3. Importantly for these purposes, I provided by order 21 that the mother had liberty to apply on the issue of her time and communication with the children only if she had obtained a report from her treating psychologist/psychiatrist referred to in order 9 (the order seeking that she address her borderline personality disorder and its effects).

4. The reasons for judgment were lengthy, given the scope of the proceedings between the parties.  They speak for themselves.  It should be noted that in paragraph 350, I accepted the submission of the Independent Children’s Lawyer that it was vital in the case to produce what were final orders.  I said:

   “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.”

The Current Tranche of Litigation

1. On 19 November 2014, the mother filed contravention applications in both proceedings.  They appear to be in identical terms.  The substance of the matter is at paragraph 6, where the mother characterises her complaint as “total withholding of the children”.

2. The substance of the contravention application goes on to make numerous assertions of failure on the part of both Mr Meibos and Mr Hellier to enable the children to spend time with her.  She sought the immediate return of the children to her sole care and accused the fathers of lying on oath before the Court.

3. The mother’s affidavits, both filed 19 November 2014, are in substance the same.  She accuses the fathers of collusion to defeat her interests, asserts that she has had virtually no time with the children since final orders on 24 June 2014 and, importantly, denies having any form of mental illness.  She denies having borderline personality disorder.  This assertion is untenable given that the disorder is something sufficiently clearly indicated by the evidence in the earlier trial to give rise to the orders to which I have referred, and in particular to order 9.  It is not necessary to traverse in detail the numerous allegations she makes against each father.  It should be noted that a number of the matters asserted (such as Mr Meibos’ alleged alcoholism, purely by way of example) were part of her case in the original trial and have already been dismissed by the Court.

4. When the contravention applications came on before the Court on 27 January 2015, both the fathers represented themselves and Mr Lynch, who had been re-appointed as Independent Children’s Lawyer by orders made in chambers by the Court of its own motion on 13 January 2015, appeared as Independent Children’s Lawyer.  Ms Josey did not appear and the two contravention applications were therefore dismissed.

5. The Court noted in the orders made that the Independent Children’s Lawyer had made an oral application on the day to discharge the extant orders facilitating supervised time and intended to file a formal application to that effect as soon as practicable.  That foreshadowed application was listed in advance, so to speak, on 13 March 2015.

6. On 13 March 2015, the Independent Children’s Lawyer filed his two applications in a case, one in each matter.  He sought that orders 4, 5 and 6 of the orders made on 24 June 2014 (which established the spend time regime referred to above) be discharged or alternatively suspended but that the mother’s liberty to apply contained in order 21 of the orders remain in full force and effect.

7. Mr Lynch’s affidavits, which once again are in relevantly identical terms, referred to his concerns.  Three private supervisors had been engaged to supervise time between the mother and the children during 2014 and, in the ultimate, none were prepared to continue in that role.  Mr Lynch pointed to this issue, and the matters raised by the affidavits filed by Mr Meibos and Mr Hellier in their affidavits filed in January 2015, to which I shall return.  Mr Lynch referred most specifically to the affidavit of Ms J filed 16 March 2015, which details Ms J’s concerns for the children’s safety outside the controlled and supervised environment and the various difficulties arising from the mother’s erratic and unstable behaviour and lack of insight.

8. Mr Lynch’s affidavit referred most particularly to the text messages sent by the mother to the child X, annexed as annexure M-1 to Mr Meibos’ affidavit filed 22 January 2015. 

The Affidavit of Mr Meibos, Filed 22 January 2015

1. This affidavit was filed as a response to the mother’s contravention application which was subsequently dismissed.  It detailed the withdrawing of the services offered by Ms M, Aiding and Caring and subsequently Ms J.

2. More particularly, he appended as M-1 text messages from the mother to X.  These had led Mr Meibos to apply to the Children’s Court for an Apprehended Violence Order.  I note that Mr Meibos deposed that, in paragraph 13, “Ms Josey did not send X and Y a Christmas card or presents despite being fully aware of our address.”

3. He went on to say at paragraphs 14 and 15:

   “14.  Ms Josey’s behaviour is becoming increasingly unsettling and disturbing.  I was aware that Ms Josey had attempted suicide on 7 July 2014, as I received a call from Ms A at DHS checking the girls were with me as Ms Josey had been taken to the (omitted) Hospital on 6 July 2014 after the attempt. 

   15.  Since final orders Ms Josey has continued to send me texts and email that are offensive, ugly and, at times, frankly disturbed.”

4. The text messages are indeed concerning.  Inter alia, the mother asserts to X on 4 November 2014, “X u can come to mum now.  Uve reached the age of consent.  Ur dad can’t stop u from seeing me.”  Since X was born on (omitted) 2002 and is therefore still only 12 years old, it is immediately apparent that that observation is inaccurate.

5. The text message on 5 November 2014 contains a denial of slapping X in 2013, something the Court has already found to have occurred.

6. On the same day, a message to this effect is set out:  “U r dad bashed me the day u were born.  He killed u r sister.  7 were too young and don’t remember.”

7. On 7 November 2014, a text read, “I’ll be dead by Christmas.  Did your dad tell you I was so upset I tried to kill myself.  Massive liver failure.  I will be dead by Christmas.  I want you to read the court files.  You can read them when you are 18.  Your dad is a monster.  And I’ve forgiven you for being a pawn in his plan to take Z away from me.”

8. On 7 November 2014, again, the mother texted, inter alia:

   “Ur dad didn’t want you to be born.  He wanted u aborted.  And you can read it when u are 18 because it’s the truth.”

   “And I’ve never recovered from the baby he murdered.  Gotta love ur dad because he murdered your baby sister/brother…”

9. Later on the same day, 7 November 2014, the text reads, “Haha.  I’m cutting ur phone off it’s my phone.  It’s my account and I’m gonna cancel it.  Enjoy sleeping with ur dad.  I’m cutting off ur phone.”

10. Mr Meibos’ affidavit assertion that X found these messages extremely upsetting is scarcely surprising.

The Affidavit of Mr Hellier

1. The affidavit of Mr Hellier, filed 22 January 2015, likewise in opposition to the contravention application of the mother, likewise refers to the difficulties with supervisors and ongoing receipt of offensive emails from the mother.  He also deposes to what is clearly an ongoing process of litigation in the Victorian courts about domestic violence matters between himself and Ms Josey.

The Mother’s Affidavit in Response

1. The mother filed in Court on 30 March 2015 affidavits in each proceeding, once again relevantly identical. It should be noted that the mother continues to deny the necessity for order 9 made in the original orders of 24 June 2014. 

2. She continues to assert that both Mr Meibos and Mr Hellier had “multiple episodes of adjustment disorders” (paragraph 7).

3. The mother sought to explain the difficulties to do with supervision and the way in which time ceased to be supervised by the three supervisors.  I note that, inter alia, she accused Mr Lynch and Ms M of jointly deciding to suspend supervision by Ms M, when Ms M made it clear it was the mother’s own behaviour that gave rise to that outcome.  Put shortly, the affidavit exculpates the mother and delineates all her difficulties as being caused by the two fathers, and makes further criticism of the conduct of the Independent Children’s Lawyer.

4. It should be noted I have not traversed further affidavits in response filed by Mr Meibos and Mr Hellier to the Independent Children’s Lawyer’s application in the case as, in my view, they take the matter no further.

Submissions Made at Court

1. Mr Lynch, who appeared as Independent Children’s Lawyer, confirmed that he was seeking the orders set out in the application in the case.  He pointed to the failure of the mother to attend the hearing of her contravention applications and highlighted his concerns arising from the refusal of no less than three supervisors to supervise the applicant.

2. The affidavit of Ms J filed 16 March 2015 details the four supervised time spent time sessions between the mother and X and Y, and the two with Z and his mother, and one with all three children and the mother.  It records the difficulties that these logistics gave rise to.  Relevantly, for these purposes, the report reads:

   “On the 25/08/2014 after the writer continued to receive ongoing excessive amounts of text messages from the mother day and night.  Family Contact Service withdrew our involvement.  The text messages were implausible, the writer on many occasions warned the mother to stop or my service would withdraw.  The mother was unable to stop this inappropriate behaviour hence Family Contact Service withdrew and the mother’s phone number was blocked. 

   All through my involvement this inappropriate behaviour of the mother excessively texting clearly presented her limited capacity of being able to adhere to boundaries and directions which caused great concerns to the writer.  This was why Family Contact Service staff supervised the contact between the mother and Z in a contained environment with one entry in and out to ensure his safety.  In relation to X and Y, it was assessed that given the children’s ages and ability to self-protect to some extent, contact visits occurred in a more public forum. 

   Overall, the sessions between the mother and the children were observed to be positive and of good quality with the mother often planning an activity and being very focused on her children during the spent time.  All three children presented happy upon seeing their mother and attended willingly.  The children were observed to remain settled during the visits and appeared to enjoy the time with their mother. 

   Even though the mother could contain her behaviours during a two hour supervised session with her children, the writer would have concerns for the children’s safety outside this controlled and supervised environment with their mother.  Stability and security is paramount to a child’s ongoing emotional development.  Unfortunately, due to the mother’s difficult, erratic and unstable behaviour (outside scheduled times) and her lack of insight it is the writer’s belief no service would be able to work ongoing with her.”

3. Based on those concerns and the matters raised by the affidavits of the two fathers, Mr Lynch submitted that the mother’s time should be suspended.  I note that, very properly, Mr Lynch revealed that on 27 March 2015 he had spoken to the two older children who expressed the view to him that they would like to see their mother in a supervised environment.  My Lynch submitted that any time spent with the mother should occur at a contact centre.

4. Counsel for Mr Meibos and Mr Hellier both supported the positions of the Independent Children’s Lawyer.  Mr Hellier denied any assertions made against him in the mother affidavits.

5. The mother objected to the orders sought and repeated that she had not been diagnosed with a borderline personality disorder.  She asserted that the fathers were in direct contravention of the court’s orders and that Ms J would say the fathers had prevented her from having time with the children.  She accused the fathers of nominating impossible times which prevented the three siblings from seeing one another.

6. Ms Josey complained of problems with the ongoing Intervention Order proceedings and complained, inter alia, that X had been left unsupervised on one occasion when returned to her fathers’ house.  She accused Mr Lynch of deciding to cancel the services with Ms M (something I dealt with above) and accused the fathers of sending her taunting messages on Mother’s Day.  She accused the fathers of frustrating the endeavours of Aiders and Carers to enable her to have time and repeated the alleged difficulties created by the fathers with Ms J.  She said she still had the children’s Christmas presents at home.

7. The mother said that time at Berry Street would not be an ongoing solution and she repeated her concerns about Mr Hellier’s mental state, accusing him of being on Valium in 2009.

8. She said that Z’s possible relocation to country Victoria (something not entirely clear on the affidavit material) should not be permitted, and furthermore that Mr Hellier ought not be permitted to have a passport for Z.  She denied (as Mr Hellier had asserted in his affidavit material) that he wished to take Z to see relatives in (country omitted) because he had no family there.  She said that he was planning to leave Australia.  It emerged, however, that this matter is before Judge Bender at the moment in any event.

9. Ms Josey accused Mr Hellier of ongoing vexatious claims to the police and accused him of having breached Intervention Orders on five occasions and said that he would be arrested later in the week.

10. She sought orders first to adjourn the matter to get evidence from Ms J.  Second, she sought a new family report because of her concerns about the children.  She said X was not doing as well at school as previously and Y was also failing.  She said both children were very distressed when they saw her.  She said that Z was having behavioural problems and hitting other children.  She repeated that she had not been found to have a borderline personality disorder.

11. She was not comfortable giving a report arising from investigations into her possible borderline disorder to the other parties.  She wanted leave to reinstate her contravention applications and she wanted a psychiatric report on Mr Hellier also.

12. Mr Lynch pointed to the Court’s findings about Ms Josey’s mental health at paragraph 327 of the earlier judgment and drew the Court’s attention again to the fact that Ms M had refused, of her own motion, to continue supervision with Ms Josey.

Consideration

1. This is an exceptionally sad and regrettable state of affairs.  For all her difficulties, the mother loves her children and they love her, although I note they have reached a stage where they would prefer this to be in a supervised setting, as they informed the Independent Children’s Lawyer.

2. The Independent Children’s Lawyer is seeking orders which may well have the effect of bringing the mother’s time with the children to a final conclusion in which they spend no time with her at all.

3. Most regrettably, Ms Josey has not been able to engage with the conclusions expressed by the Court in the earlier judgment, and the orders designed not as she might well think to punish her, but to assist her with her difficulties.  Order 9 was made at the urging of the Independent Children’s Lawyer based on professional evidence from Dr A and Ms P.  That, taken together with the liberty to apply in order 21, gave the mother a clear pathway, however unpalatable it may have been to her, to address her difficulties and return to Court.

4. The reality is that the supervised time ordered was never going to be easy given the multiplicity of parties and the fact that they do not live in the same place.  The bottom line, however, is that Ms J’s report makes it clear that no-one will ever be prepared to supervise Ms Josey.  This opinion has, of course, not been tested by cross-examination, but it reflects, at the very least, Ms M’s identical outcome, even if I were to accept that Aiders and Carers gave up, as the mother says, because of the difficult logistical issues that confronted them.

1. Furthermore and despite her denials, the mother’s mental health continues to be a matter of very great concern.  Ms J, who is an independent person, has given evidence to this effect, and the text messages sent by the mother, horrible as I regret to say they are, speak for themselves.

2. Until and unless the mother can confront the reality that the Court does not share her view of herself as to her mental health, there is realistically a considerable risk in continuing the present orders, which have in fact produced no time of recent times in any event.

3. Although no formal application has been made, this is a matter to which, in my view, s.17A of the Federal Circuit Court of Australia Act 1999 would apply in any event.  However, it is not necessary to embark upon a detailed analysis of that aspect of the legislation.  It is most unfortunately quite abundantly clear that it is in the best interests of the children to make the orders that the Independent Children’s Lawyer seeks.  The children are at real risk being with their mother until such time as she can address her difficulties.  It is also correct to say, as Ms Josey herself does, that time at a contact centre, to which obviously I have given thought, is not a workable long term solution.  The difficulties currently obtaining are, no doubt, exacerbated, at least in the case of Mr Hellier, by Mr Hellier’s very poor interrelationship with the mother, but in the ultimate the mother is most unfortunately the author of her own misfortunes.

4. As urged by the Independent Children’s Lawyer I will, of course, leave the door open to the mother to return to court in the event that she does address her difficulties in the manner foreshadowed in the earlier orders and as described in the earlier judgment.  I sincerely hope even now she is able to take the necessary step backwards, so to speak, to review her position.  It is to be hoped, however forlornly, that she is able to do so. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  10 June 2015