Kitchener and Jessup

[2008] FamCA 1124

FAMILY COURT OF AUSTRALIA

KITCHENER & JESSUP [2008] FamCA 1124

FAMILY LAW – CHILDREN – 6 year old boy – Primary attachment to mother – Contact with father – Evidence of possible cigarette burns – Mother’s mental health and presentation at trial – Need for further medical evidence

APPLICANT: Mr Kitchener

RESPONDENT: Ms Jessup

FILE NUMBER: BRC 3748 of 2008

DATE DELIVERED: 11 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 8 – 11 December 2008

REPRESENTATION

THE APPLICANT: Appeared in person

COUNSEL FOR THE RESPONDENT: Mr Crisp

SOLICITOR FOR THE RESPONDENT: Burchill & Horsey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Toni Bell, Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the child, W, born … January 2002, live with the Father.

2. That the Father have sole parental responsibility for the said child.

3. That the said child be known as … Kitchener and no person refer or take action to have the said child known by any other surname.

4. That pursuant to Section 65L, a Family Consultant facilitate and supervise any time between the said child and the mother, such to occur at least every 12 weeks or as often as the Family Consultant can accommodate or deems appropriate, with the Family Consultant to prepare a report regarding his or her involvement with the family either not before 6 months of the Section 65L order, or upon the termination of the facilitation and supervision of time.

5. That the child telephone the mother, such contact to be facilitated and monitored by the father, with the father to be at liberty to terminate the call if the mother makes inappropriate comments during that call to the child.

6. That the Independent Children’s Lawyer have liberty to relist the matter regarding the issue of the child’s time with the mother on 14 days notice in writing to the Court and the parties.

7. That the mother authorise her treating psychiatrist and general practitioner to release information to the Independent Children’s Lawyer regarding the mother’s treatment, such to be limited to attendance and compliance with the treatment prescribed.

8. That neither parent denigrate the other or their family to or in the presence of the said child, nor discuss Court proceedings either past, present or future, and take all reasonable steps to ensure no other person does.

9. That this Order is authority for the mother to access any relevant information regarding the said child from any school, doctor, dentist or other health professional.

10. That the father advise the mother of the details of any school, doctor, dentist or other health professional attended upon by the said child.

11. That the mother provide to the father a landline telephone number for the purpose of the contact provided for in paragraph 5 hereof.

IT IS FURTHER ORDERED

1. That this matter be listed for further hearing for one day at 10.00 am on 27 February 2009.

2. That the mother file any updated material in relation to the further consideration of the matter on or before 10 February 2009.

3. That the father and the Independent Children’s Lawyer file any further material upon which they intend to rely by 20 February 2009.

4. Liberty to apply.

5. That both the mother and the father attend upon a psychiatrist nominated by the Independent Children’s Lawyer.

6. That the Independent Children’s Lawyer have leave to issue subpoenae to the mother’s current or past psychiatrists or medical practitioners.

7. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. That this case is part of the Magellan programme.

2. The court has made a difficult and drastic decision to suspend all physical contact between a 6 year old child, W, and his mother, to whom he has been primarily attached in the past.

3. The case involves most serious allegations of physical abuse which have not yet been finally determined.  The case has given rise to significant concerns about the mother’s health which need to be thoroughly addressed.

4. The child is likely to take harm from his continued separation from his mother.

5. The Court is anxious to properly address outstanding issues with expedition.

6. The Court requires the ongoing assistance of the legal representatives for the mother and for the child.

7. The Court requires relevant medical evidence to make assessments, including a thorough review of the mother’s medical history, assessments as to the prospect of whether the mother’s health, as at April of 2008, may have left her predisposed to harming herself or to harming the child, and opinions as to the mother’s future prospects, both whilst under treatment and in the absence of treatment.

8. The mother is unlikely to have the financial and emotional capacity to secure such medical evidence.

9. In order to enable the Court to meet its responsibilities to these parties and to their child, it is trusted that the Independent Children’s Lawyer will make the necessary arrangements to secure such further evidence.

10. The Court takes the view that it will be necessary for any expert retained for these purposes to have access to a copy of the judgment delivered today, together with the opportunity to confer with both the mother and the father in order to have a full appreciation of the history and the concerns to be addressed.

11. The mother will need to immediately authorise all past treating doctors to provide all relevant information to the experts retained for the further investigation.  A failure to do so will compromise the future conduct of this case.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3748 of 2008

MR KITCHENER

Applicant

And

MS JESSUP

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is a sad and difficult case where there are no real winners.  At issue is the future care and living arrangements for 6 year old W, born in January 2002.  His parents separated in November of 2003 when he was not then two years of age.  The parties were living in New South Wales at the time.  The father re-partnered at about that time with a Ms M and that relationship has continued.  They have a 4 year old child, L.

2. After separation, the father enjoyed only limited contact, which was as a consequence, at least in part, of the logistical difficulties created by his move to Queensland initially and to New Zealand in February of 2005.  He instituted proceedings in the Family Court in January of 2005 and they were determined by Stevenson J on 30 June 2006. 

3. As has been observed, many issues raised in this case were raised in the proceedings before her Honour.  However, it is also clear from her Honour's reasons that the case was determined on a quite specific and narrow basis and her Honour, in fact, declined to address the contentious issues between the parties relating to parenting capacity.  She said in par 8 of her judgment:

   "Each of the parties made numerous allegations against the other, including dishonesty and incompetent parenting, which I do not propose to attempt to adjudicate in the context of the CCP format of these proceedings.  To a large extent these allegations have been overtaken by time."

4. Essentially, her Honour was faced with a relocation case with the husband proposing to relocate the child to New Zealand, in the context of the fact that the Court was dealing with a four and a half year old boy whose primary attachment was to his mother, having never been separated from her.  At the same time, he had only enjoyed a very limited relationship with his father.  Her Honour had before her strong expert evidence that there would be serious detrimental consequences for a young child if the primary bond was so abruptly and extensively disrupted by such a dislocation.

5. Her Honour determined, in the circumstances, that W should continue to live with his mother and, as matters stood at that time, enjoy holiday contact with his father.  The father had contact for five days in October of 2006 and again in December of 2006.  In September of 2007, he relocated to Brisbane.  He enjoyed contact for a five week period between 22 December 2007 and 27 January 2008.  In April of this year, the child was sent to his father for a limited period.  The father retained the child, citing serious concerns about the child's safety in the mother's care when he observed the child to present with wounds on his left arm, which were the subject of a variety of explanations from the child, including mentioning he fell on his mother’s cigarettes.  The father had those matters investigated and, whilst the medical evidence was and remains inconclusive, it was observed by the doctors that the injuries may be consistent with multiple cigarette burns. 

6. The father filed an application, which included a notice of abuse, which cited concerns, including reference to the multiple cigarette burns, hitting the child repeatedly, denying necessary medical treatment, neglecting dental needs, verbal abuse, leaving W unsupervised and exposed to strange men, and emotional abuse and threats. 

7. On the facts of this case as presented by the father, there is no so called Rice & Asplund issue.  The allegations raised by the father are most serious indeed.

8. The allegations raised gave rise to a prima facie case which needed to be addressed, with renewed focus upon parenting capacity and all other relevant matters under the Family Law Act.  However, as the matter has unfolded, additional considerations and determinations have been rendered largely redundant.  The trial process, itself, has exposed major issues which need to be addressed.  It has been a most disturbing revelation. 

9. I do not make these observations gratuitously with the intention of belittling or of exacerbating existing problems.  However, I feel it is essential to outline some of the matters so that the parties and any others reading this judgment will have a clear understanding of my most significant concerns and a better appreciation of my decision and a greater capacity to address any ongoing issues.  Some of the disturbing features of this case included:

   i)During a morning break on day one, the mother was apprehended by the police for shoplifting in two retail stores in the vicinity of the Family Court.  Before me, she acknowledged stealing products from both shops.  Her explanation was that she stole these items because the applicant in these proceedings told her to do so.

   ii)The mother returned to Court after the stealing incidents and the case proceeded until the luncheon adjournment at one.  However, the mother failed to return to Court at 2.15 and the afternoon session had to be abandoned.  She informed the Court on the following day that she returned at approximately 3.15.  She said the reason she failed to appear when required was because she had a migraine and was extremely upset by the events of the morning.  She said that she sat on the bench, had turned off her phone and did not have a watch on her at that time.

   iii)The mother informed the Court that, during the course of her interview with the family consultant, Ms R, she had told her a series of lies.  Her explanation for lying was that she did not like Ms R and felt Ms R did not like her, so she just said whatever came into her head or whatever she thought Ms R wanted to hear.  That explanation included the suggestion that she had falsely informed Ms R that she had previously been involved in a number of incidents of self-harm.

   iv)During cross-examination, the mother said at one point that "a lot of things" in her affidavit were also false.  She said she just signed the affidavit and thought she would clear such matters up once she was in the witness box.

   v)On numerous occasions during the trial, the mother embarked on unbridled, verbal attacks upon the father which were often irrelevant to the questions and were regularly sustained for several minutes at a time. The mother's mood and language were unrestrained and without apparent regard for her whereabouts.  Even in an arena where one observes and adjudicates upon conflicted parties on a daily basis, what I observed during this case was simply beyond my experience of 18 years on the Bench.  After lunch on the second day, the mother's initial presentation was in stark contrast to that observed during the balance of the trial.  She appeared almost lifeless.  She was to inform me that, during the luncheon break, she had taken Valium.  The subdued mood lasted for approximately half of the afternoon session, but the mother proceeded to gain momentum during the course of that afternoon and, by the end of the day, she was again highly agitated in mood and resumed her vivid attacks on the father with vigour.

   vi)The mother was to make a number of extreme assertions during the course of the trial about some distasteful matters and included in them was a suggestion which emerged for the very first time, to the effect that the injuries to the child’s arm were caused by the father and his partner, Ms M, drugging the child on the first night they had him on contact and then inflicting the burn marks upon the child whilst he was unconscious, with a view of presenting him to the authorities on the following day. 

10. The mother's presentation and the content of much of her testimony left me most concerned about her emotional and mental stability.  In so observing, I have endeavoured to make proper allowance for the fact that all litigation is stressful.  This is a matter with a long history of conflict and antipathy.  Most importantly, I am aware that I am dealing with a woman who clearly loves her son dearly, felt he had been kidnapped from her care and was missing him greatly, and was then being accused of the most serious mistreatment of her son.  However, after making proper allowance for all of those stressors, I remain very concerned about the mother's presentation.

11. The mother made a number of statements in Court and to others which may be indicative of suicidal thoughts in the event that the child is not returned to her care, and the mother's own mother was to advise the Court of past express statements to that effect. 

12. As serious as the issues are which gave rise to this further hearing, they have largely been overtaken by what has unfolded in front of me.  At the same time, my observations during the last four days served to both cloud the issue and to make it difficult to ascertain what is the truth in relation to the allegations raised by the father. 

13. In the background of the mother's disturbed presentation before me, I was to learn during the course of the trial that the mother has a long history of mental health issues, the detail and extent of which remain unclear.  The mother acknowledges having suffered from, and received treatment for, depression.  The maternal grandmother inferred that the mother may have, in addition, experienced some form of post-natal depression.  The mother acknowledges having been diagnosed with bipolar disorder, although she suggested that this was but a mild case thereof.  She acknowledged being treated by a psychiatrist until approximately 12 months ago.  She said she had to discontinue that treatment because she could no longer afford it.  She said she had, what I gather, was a long-standing relationship with a general practitioner, Dr A, but informed the Court that she had recently discontinued that association.  She said she had not yet found a replacement doctor.

14. The mother acknowledged having prescriptions for Valium to take when she was not coping with life or stress, Epilim for mood control, Lovan for depression, Serapax for sleeping, Mercendol and Panadol Forte for severe migraines, a drug she called Diplan, and other drugs, Kliogest, for hormone replacement treatment.  It became clear that the mother presently self-administered her treatment by taking and discontinuing her medication as and when she saw fit.  She informed the Court that the Valium she used on one day was the last one that was available to her.

15. The mother said that she suffers from severe migraines, two or three times a week, and that at their worst, they can be totally debilitating and last for two or three days at a time.  She informed the Court that she has her mother care for W on those occasions, although it was noteworthy that the grandmother did not affirm that proposition. 

16. The mother informed the family consultant that she endured, what she described as, an horrific childhood, being physically abused by her father.  She was sexually molested as a 10 year old by a friend of her father, only to have her father side with the abuser, which resulted in the separation of her parents.  Remarkably, the mother's three other siblings also sided with the father and blamed their 10 year old sister for the break up of the marriage.  They have apparently never seen fit to forgive her and have not spoken to her in the 40 years since.  The mother believed she was also sexually molested between the ages of 3 and 5.  She informed Ms R of past self-harm attempts and past suicidal thoughts. 

17. Ms R highlighted through her report that it would be important for the Court to be provided with updated medical reports from her psychiatrist and general practitioner in relation to her mental health issues and compliance with prescribed medications.  Regrettably, I was only provided with a brief report from her former general practitioner.

18. Dr A made the obvious point in her report that her former psychiatrist, Dr Y, would be the more appropriate person to comment upon the mother's mental condition.  Given the gravity of the issues in this case, given the mother's history, her presentation before me, and given the recommendations of Ms R, I regard the absence of any specialist evidence informing the Court of the nature and extent of the mother's mental health issues as fatal to her case.

19. In this case, the Court cannot make any meaningful assessment of the scope of the mother's bipolar disorder, the history of her depression, including any incidents of self-harm and suicidal ideations, the type of therapy administered or needed, and the mother's history of compliance with recommended treatment and medication.  I am left without a prognosis for the future in the event of both compliance and non-compliance with prescribed treatment.  The Court needs relevant expert assessment of any compromise to the mother's parenting and any risks to the child in the event of both compliance and non-compliance with prescribed treatment.

20. These matters are also critical to the capacity of the Court to make assessments about the mother's parenting capacity and, indeed, her capacity to harm the child. In the meantime, all I am left with are the assessments and stated concerns of Ms R and my own observations of the behaviour and presentation of the mother before me. 

21. Ms R had occasion to query the mother's mental health.  The lady who presented before me, shoplifting during the trial, failing to attend Court, exhibiting extreme mood swings in the course of one session and displaying extreme levels of anger and aggression, sadly gave the appearance of a person who would struggle to make appropriate decisions for herself, much less for a 6 year old child.

22. One could speculate, of course, that much of this might abate if her child was returned to her care.  On the other hand, if it did not, this child could be at very serious risk indeed. In the absence of appropriate and current medical assessments, the Court would be placing the child in a position of potentially high risk in the uninformed hope that it would all go away.  This Court does not and cannot act in that way.  This Court does not know how unwell the mother is now and does not know whether she will improve or deteriorate in the future.

1. There was a most serious issue to be tried in this case.  This boy was presented to medical practitioners two days after he left his mother's care in April with injuries to his left arm, including three obvious circular lesions and four smaller circular lesions, all of which could be consistent with cigarette burns.  I expressly reject the eleventh hour suggestion by the mother that the injuries were deliberately inflicted by the father on an unconscious boy on the first night of a contact visit.  That proposition is inconsistent with the mother's previous efforts to explain why there were pre-existing injuries and is inconsistent with all of W’s efforts to explain the injuries and is inconsistent with the dry-scabbed nature of the injuries observed by the doctors.

2. I take account of the fact that the child has endeavoured to explain away the injuries in a variety of inconsistent ways, including being pinched, falling, and falling on his mother's cigarette.  If the child has somewhere between three and seven cigarette burns on his left arm, accident must be ruled out.  Deliberately inflicting such wounds upon a 6 year old child on multiple occasions is extreme, abhorrent behaviour.  It is most likely, in my view, that such behaviour would be the domain of only the extremely cruel or the significantly impaired.  I know that the father did not inflict those injuries.  I do not know if the mother deliberately inflicted those injuries.  I do not know if they were inflicted at all.  I do not know if the mother is capable of doing those things, or if she suffers from an impairment which might increase the risk of such behaviour.

3. Given the gravity of the issues, the implications of positive findings for both the mother and for the child and given the importance of medical evidence in any determination of whether the mother should be found responsible for her actions, I decline to make any positive findings on the evidence as it stands. 

4. I know the father and his partner are capable of caring for the child and I observe that they appear to have provided him with a high standard of care in the eight months he has been with them.

5. I do not know whether the mother is presently able to adequately and safely care for the child.  On the basis of the evidence and my observations to date, I believe that the mother probably is not in any fit state to properly care for a 6 year old boy.  I have very serious concerns about the state of the mother's health and her ability to manage her own affairs, much less those of a dependent young child.  As the evidence currently stands, I would be left with grave concerns for the physical safety and emotional wellbeing of the child in the mother's care.  My findings are so fundamental, my concerns are so grave in the absence of medical evidence and so telling as to render any of the other usual considerations largely redundant.

6. One of the many sad aspects of this case is the fact that, issues of the mother's current health and unresolved issues of physical abuse to one side, the indications are that the mother provided very well for the child in the past.  In reports prepared by family consultants over the last three years, it has been consistently observed that the child presents as a healthy, happy, well cared for young boy, who has always exhibited a very close bond with his mother.  Traditionally, the child’s primary attachment has been with his mother, which is understandable given her primary role in his care.

7. The child is missing his mother and wants to see her.  He will be feeling a great sense of loss as a consequence of his sudden and almost complete separation from his mother.  The mother's sadness and sense of loss is palpable and may well be the principal component of her current presentation.  She says the child is her life, her reason for living, and I accept what she says.  I am fully aware that my decision and this judgment are likely to greatly increase her stress and anxiety and may well exacerbate her condition.  I regret that prospect, but I need to address the serious issues raised in this case.

8. My concerns in this matter are such as to prevent me from permitting any physical contact between the child and his mother, save for the very limited and regulated type of regime proposed by the Independent Children's Lawyer. 

9. I understand absolutely the father's concerns in this regard and they are concerns shared by me, which I hope I have made plain to him by my judgment to date.  I agree that, before the Court takes any steps that may expose the child to any danger, there does need to be evidence of the nature and extent of the mother's condition, the type of treatment necessary and evidence which indicates compliance with that regime.

10. However, I am satisfied that the child will be safe in the Family Court under the supervision of a family consultant, with all of the resources available to the Court to intervene immediately if there is any sense of danger.  Outside of that type of arena, I remain convinced that the mother would be absolutely incapable of restraining herself and that she would use any time with the child to grossly and extensively denigrate the father.  Such is her desperation at the thought of any continuing separation from her son, that I believe it is possible, if not likely, she would try to abduct the child.  Sadly, given my observations of the mother and the evidence, or lack of it, in relation to the mother's health, I am also concerned that the child might be exposed to other forms of harm.

11. Unfortunately, I was not left with any confidence that the mother's 78 year old mother would have any capacity to supervise or restrain the lady observed by me and, therefore, she does not have the capacity to adequately protect W.

12. I will need to receive further evidence before I can contemplate even supervised contact beyond that proposed by the Independent Children's Lawyer.  At the same time, I should indicate that it is my firm belief that contact should be reinstated as soon as the Court can be satisfied that it is safe and appropriate to do so.  I am anxious and prepared to make myself available to pursue that prospect proactively.  However, it is essential that the mother be permitted, in the meantime, to retain regular indirect contact.  She should be permitted to telephone and to write to the child regularly. 

13. Again, regrettably, however, it remains necessary to have those forms of communication monitored and I am satisfied that the monitoring the father has done in the past is both necessary and appropriate, and there needs to be a capacity to intervene should the mother start to say inappropriate things to the child.  I accept the father's evidence about the past statements made by the mother and I am absolutely concerned that the outcome of these proceedings is likely to increase the risk of inappropriate statements in the future.  The mother should also be permitted to forward gifts to the child on special occasions. 

14. This is not a victory for anyone, and it is certainly not a victory for the father.  I hope and trust that he will take his responsibility seriously and acknowledge that it is in his son's interests to be able to maintain a relationship with his mother, who he quite clearly loves and is attached to, whatever has been the history of this case.  There is a heavy onus upon the father to continue to facilitate and encourage the limited level of communication that will be provided for in these orders.  Any abrupt cessation of all contact between W and his mother would be likely to be harmful and cause the child to blame himself and, as Ms R said, have an adverse impact upon his own self-esteem and development. 

15. As part of my wish to play an active role in addressing in the future the prospect of the child having his relationship with his mother restored, I propose to include in the orders I make a series of notations.  As I have said before, one of the reasons I felt the need to deal with some of the unpleasant aspects of this case in some detail, is to ensure that those who are engaged in the future for the purposes of assessing the mother and making recommendations about future treatment and future contact, need to be fully aware of the issues in this case and what has happened over the last four days.  I would be concerned that, if they were not given access to that information, they may have an incomplete picture of the nature and extent of the difficulties.

    ORDERS DELIVERED

16. That concludes the formal parts of my judgment.  I should indicate that I fully appreciate that 27 February 2009 is a very tight timeframe to secure an expert to have him or her undertake the necessary investigations and gather information.  If it happens to be a day that I am free, and there are not many of them next year, if it becomes apparent that those matters cannot be attended to by 27 February, I give liberty to apply and I will endeavour to make myself available as soon thereafter as is possible.  In the meantime, I trust that people will endeavour to work towards 27 February 2009.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date:  23 December 2008