Leon and Erueti

[2007] FamCA 1123

FAMILY COURT OF AUSTRALIA

LEON & ERUETI [2007] FamCA 1123

FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Best interests of the child – Family Violence

Family Law Act 1975 (Cth)

APPLICANT: Mr Leon

RESPONDENT: Ms Erueti

INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice Family Law

FILE NUMBER: BRF 3028 of 2005

DATE DELIVERED: 7 August 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 1 – 3 August 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hogan of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice Family Law, Solicitors

Orders

1. That the child, … born … July 2005 live with the Father.

2. That the Father have sole parental responsibility for the long term care, welfare and development of the child.

3. That the Father have sole responsibility for the day to day care, welfare and development of the child.

4. That the Father shall have sole responsibility for decisions about the schooling, including attendance at child care and religious education of the child.

5. That the Father have the sole responsibility for decisions about operations, medical treatment, dental treatment, speech therapist, physiotherapist, any specialist treatment and any alternative medical treatment of the child.

6. That the Mother spend time with the child supervised by the Father, as agreed between the parties.

7. The Independent Children’s Lawyer is discharged.

8. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975 (Cth), 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 that publication of this judgment under pseudonym Leon & Erueti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3028 of 2005

MR LEON  

Applicant

And

MS ERUETI  

Respondent

And
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT  

1. The father seeks orders in the following terms:

   (1)that the child born in July 2005, live with the father;

   (2)that the father have sole parental responsibility for the long term care, welfare and development of the child;

   (3)that the father have sole responsibility for the day to day care, welfare and development of the child;

   (4)that the father have sole responsibility for decisions about the schooling, including attendance at child care and religious education of the child;

   (5)that the father have the sole responsibility for decisions about operations, medical treatment, dental treatment, speech therapist, physiotherapist, any specialist treatment, and any alternative medical treatment of the child;

   (6)that the child spend no time with the mother.

2. The respondent mother seeks an order that there be shared care of the child.  Her suggested method of sharing the care of the child is that she have the child in her care for three and a half days each week and the father have the child for the balance of the period.  She nominates 7 am Sunday through until 7 pm Wednesday as the time she should spend with the child.  The mother also seeks various other orders, as contained in an amended response document filed 16 March 2007.  It is not necessary to refer to such orders in any detail.

3. Neither party was legally represented in the proceedings before me.  The Court was assisted by the appointment of an Independent Children’s Lawyer, who had briefed counsel.

4. Each party gave evidence and was subjected to cross-examination.

5. The Independent Children’s Lawyer had commissioned reports from two experts, a psychiatrist and a social worker. Dr M, a psychiatrist, prepared a report dated 16 July 2007 which related solely to the father.  The reason for this was the mother did not attend for her appointment as arranged.

6. At the request of the Independent Children’s Lawyer, Dr M saw the mother on the morning of the second day of the hearing, 2 August.  She gave her assessment of the mother in the course of oral evidence; her diagnosis was that the mother was schizophrenic.  She made no adverse comment in relation to the father's state of mental health.

7. Ms J, a social worker, saw both parents and the child. Her report is dated 26 June 2007.  The recommendation contained in the report is that the child live with the father and the question of contact with the mother is deferred until after a psychiatric assessment becomes available.  Ms J was adamant in the giving of her oral evidence that the shared care arrangement proposed by the mother would not be in the child's best interests.

8. The father's evidence is that since the child was very young he has been in his care.  The mother sees the child for a few hours every three or four weeks under his supervision.  The mother's evidence is to the effect that she sees the child more frequently than that, often sleeping over at the father's residence.  She accepts that her interaction with the child is always supervised by the father.  It was common ground that in the last week the mother has spent up to eight hours with the child, supervised by the father.

9. It was the mother's case that the father was only seeking an order for no contact as a result of pressure from the Department of Child Safety.  The father in effect agreed with this proposition.  In the course of final submissions he said it represented about 75 per cent of his motivation.

10. The following documents were tendered as evidence in the case:

    (1)a bundle of documents produced by the mother, including a letter from R Hostel and the Queensland Police Service, together with some blank Centrelink documents, and a bundle of receipts showing expenditure on behalf of the child;

    (2)an appointment card for the Casualty Fracture Clinic attended by the mother;

    (3)a consent to release information form from the Royal Brisbane Women's Hospital Division of Mental Health Services dated 25 January 2007;

    (4)a Department of Corrective Services discharge health report dated 17 January 2007;

    (5)a note re: the mother having contracted hepatitis B and C;

    (6)PA Hospital and Royal Brisbane Hospital records from subpoenaed documents tendered by the Independent Children’s Lawyer;

    (7)Queensland Police records;

    (8)Department of Child Safety records;

    (9)Department of Corrective Services records.

CHRONOLOGY

1. Both parties were born in 1967, the mother in New Zealand and the father in Australia.  Cohabitation commenced in about 2001.  As noted above the child was born in July 2005.  In September 2005 the Department of Child Safety wrote to the father confirming that the child was the subject of an application for a protective supervision order for a period of 12 months.  The order stated that the mother was not to have contact with the child during that time unless a person approved by the Department is present.

2. The Department's plan was for the child to continue to reside with the father and makes reference to significant concerns for the child's safety in the mother's care.  The Department indicated it would support the father in his application for residence of the child in this Court.  As I understand the evidence the Department also considered the father as a person appropriately approved to supervise any contact with the mother.

3. At the present time the child resides with the father in a two bedroom house rented from the Department of Housing.  The father is assisted in the care of his child by his parents who live in close proximity to his accommodation.

4. Of the events surrounding the birth of the child, the father says in paragraph 6 of his affidavit filed on 20 February this year:

   "That the Department of Child Safety sought the protective supervision order for the child after being notified by [Dr P], a psychiatrist at the hospital, of concerns about the mother's mental state."

5. He annexes a letter of 15 July 2005 by Dr P.  The hospital in question was the Mater Hospital in Brisbane.

6. Dr P had the opportunity to peruse copies of medical notes from the Royal Brisbane Hospital which documented a previous psychiatric history of personality disorder and episodes of brief drug-related psychosis on the part of the mother.

7. In his letter he continues:

   "On my interview of 4 July 2005 she repeated these delusions, suggestive that her psychotic state may be longer standing than previously thought.  She also had abnormal thought form, being woolly and disorganised.  I suggested that she commence an anti-psychotic medication, but I understand that she has refused this.  I have grave concerns about [the mother’s] ability to sole parent her child based on the following factors:

   (1) her disordered mental state;

   (2) her past history of drug abuse;

   (3) relatively unstable accommodation;

   (4) her lack of insight and compliance with her mental health treatment.”

8. The father instituted these proceedings in October 2005 after being advised to do so by the Department of Child Safety.  At that time the child continued to live in the father's care and the mother spent time with the child, as I understand the situation, supervised by staff from the Department of Child Safety.

9. On 10 May 2006, a time when the child would have been 10 or 11 months old, the mother physically assaulted the child's case worker, being an officer from the Department of Child Safety.  After this incident the Department terminated all contact between the mother and child.  The mother was subsequently sentenced to a term of three months imprisonment for this offence.  The evidence would indicate she was released from prison in about January this year.

10. By all accounts the child is flourishing in the father's care.  The father annexes as annexure C to his affidavit a case plan for the child developed by the Department of Child Safety, which included a direction to the mother to undergo a professional mental assessment and obtain suitable accommodation.  The mother has not taken any steps in regard to either proposal.

11. The evidence indicates that during the course of their relationship both parties engaged extensively in the use of illicit drugs, principally cannabis and amphetamines.  The father, to his great credit, is no longer using drugs.  He has devoted himself with considerable energy and skill to the raising of his child.  The courage shown by the father in acting as he has done is to be commended.  By all accounts he has done a first class job in caring for his son.

12. The mother unfortunately acts on an almost constant basis in an irrational unstable fashion.  She informed the social worker that for the period of six weeks prior to the date of the report she had been living on the streets.  At the time of the hearing last week the mother gave every indication to me that she was living on the streets.  She was carrying a number of bags which appeared to contain all of her possessions.  She said she was staying at an address in Brisbane city, but I am extremely sceptical of this information.

13. The mother has stayed at R Hostel, a hostel for women in the city and also another hostel in Brisbane city.  The father said of the R Hostel accommodation that on one occasion he attempted to attend there with the child, but was informed by a staff member it was not a suitable environment for a child.  I accept his evidence in this regard.

14. Because of her mental condition the mother was an extremely difficult litigant. 

FACTORS TO BE TAKEN INTO CONSIDERATION PURSUANT TO SECTION 60CC

1. Paragraphs 1 and 2 of that legislation are in the following terms, subject to subsection 5:

   "In determining what is in a child's best interests the Court must consider the matters set out in subsections 2 and 3.”

2. Subsection 2 deals with what are said to be primary considerations.  The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

3. There is no criticism of the care provided by the father for the child.  The father and the child appear to have a warm relationship.  Unfortunately on the evidence available I would have to conclude that to allow the mother unsupervised time with the child could result in physical or psychological harm to the child from being subjected to or exposed to abuse, neglect or family violence.

4. The mother does not have the ability to offer the child a stable environment.  The mother has a tendency to engage in acts of physical violence from time to time.  There is no evidence that she has ever been physically abusive to the child, but at the very least there is a possibility that the child would witness the mother engaging in acts of violence towards others, including the father.  The mother, through her use of drugs, could also expose the child to risk in that form.

5. Subparagraph 3 requires the Court to consider “additional considerations”, and the first one is “any views expressed by the child”.  The child is only 2 years of age and is unable to express a view. 

6. The second matter that I have to take into account is the nature of the relationship of the child with each of the child's parents and with other persons, including any grandparent or other relative of the child.  I accept that the mother loves the child dearly and wishes to develop a relationship with him.  The mother explains away the evidence relating to the diagnosis made at the time of the birth of the child as being an incomplete or incorrect diagnosis following the stresses and trauma of childbirth.

7. Unfortunately the mother has done little to assist her cause.  She has failed to submit to drug tests as requested by the Independent Children’s Lawyer.  She failed to attend for the assessment by Dr M.  She conceded in evidence that when she went through security at the Court the day prior to the trial a number of syringes were removed from her possession.  She claims she does not use the syringes personally, but carries them to provide for the assistance of other drug users.  I found her explanation for having the syringes in her bag inherently implausible.

8. The mother is aware of the recommendation that she seek assistance from Mental Health Services, but she has consistently failed to do so.  The mother was quite non-accepting, even derisory, of the diagnosis of schizophrenia by Dr M, going so far as to suggest that it was Dr M who was suffering from a mental illness.  It is possible in the fullness of time the mother may follow the father's example and seek assistance and become drug free.  She may start taking anti-psychotic medication and having regular treatment from a psychiatrist.  But unless and until that day occurs, her prognosis must remain poor.

9. On balance I would conclude that notwithstanding her expressed love for her son, she has at best a tenuous relationship with him.  The social worker, Ms J, observed at paragraph 67 of her report:

   "The mother was pleased to see [the child] and she responded to him in an age appropriate manner.  I doubt if he has any emotional understanding of her being his mother, but he was happy to respond to her attention.”

10. There is no challenge to the fact that the child enjoys an excellent relationship with his father.

11. The next matter I have to consider is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  This case differs from many others where often we are called to adjudicate on levels of considerable hostility between the parents competing for the care and control of the child.  Here the parents are quite gracious towards each other.  In paragraphs 59 and 60 of her report Ms J observes, paragraph 59:

    "He (the father) has mixed feelings about the mother spending time with [the child].  On the one hand he understands the Department's point of view in not wanting the mother to have any contact at all because of all the aggression that they have seen in her.  On the other hand he finds this a bit too harsh, and he considers that it would be good for her to have some form of supervised visits.  He adds the proviso that she should not be under the influence of anything when she does see him.”

12. Paragraph 60:

    "It's notable that the father and his family have been subjected to a considerable amount of verbal and physical abuse, but he still feels for her position.  He said, 'Maybe I am a forgiving person, but I still like her.  As long as she has to learn to respect other people's wishes as well, she can be pretty demanding at times, but it's hard to keep holding a grudge'.”

13. I have no doubt whatsoever that the father wishes to facilitate a relationship between the child and his mother, subject to his being able to be satisfied that in doing so the child is not at any form of risk.  For her part, I am satisfied the mother would facilitate a relationship between the father and child.  She certainly is respectful of the father and would do nothing to denigrate the father to the child.

14. The fourth matter I have to take into account under subparagraph 3 is the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person with whom he or she has been living.

15. If the Court was to accede to the mother's application there is no reliable evidence how she could cope with his care for three and a half days a week.  As best I can gather she is banned from gaining access to public housing, she does not work and would find it difficult if not impossible to fund her own rental accommodation.  To her affidavit material the mother annexes a document entitled "[the child’s] schedule".  No reference was made to this document in the course of the hearing.  It relates to meal times and activities during the three and a half day period.  I find the contents of the document fanciful.

16. I note that the mother has an ambivalent relationship with her own mother who resides in Brisbane.  She does receive some support from her, but at times the relationship is fractious.

17. The father has a set routine for the child including day care on a weekly basis.  The father has his parents to offer support.  As noted by Ms J, to dramatically alter the child's current settled routine is likely to have an adverse impact upon him.

18. The next matter I have to consider is the practical difficulty and expense of the child spending time with and communicating with the other parent.  The evidence would indicate the father and mother are able to meet up at various designated locations in the Brisbane area for the mother to spend time with the child.  Whatever arrangements are put in place, I would not anticipate any difficulty with contact taking place, other than the fact the mother does not have access to a motor vehicle.  That would not be an insurmountable hurdle notwithstanding the mother’s claims of difficulties in walking as a result of a fracture to an ankle about six years ago. 

19. The next matter I have to take into account is the capacity of each of the child's parents and any other persons, including grandparents, to provide for the needs of the child, including emotional and intellectual needs.  The mother stressed throughout the hearing her close bond with her adult children.  The evidence would indicate that she has had some problems with her children, and also with her own mother, as I have noted.

1. The father says that when he first entered into the relationship he was shocked at the extent of violence that went on between the mother and her then children.  The father's evidence is that from time to time he has taken the child to see the maternal grandmother.  Again, the father would have to be given considerable credit for engaging in this.  He says he has a close relationship with the mother's adult children and they are free to see the child from time to time, and in fact do so.

2. I have no doubt the father would do all in his power to assist in the development of the child's emotional and intellectual needs.  Unfortunately, notwithstanding the best of intentions, I would have grave reservations that the mother would be able to promote the child's emotional and intellectual needs.

3. The next matter I have to consider is the maturity, sex, lifestyle and background of the child.  I do not find any relevant significance here.

4. The next matter I have to consider is limited to children of Aboriginal or Torres Strait Island descent.  This child is of Maori heritage.  There is no evidence what steps the mother has taken to date to foster the child's cultural links with his Maori heritage.  I take into account that she has had very little opportunity to do so over the two years of the child's life to date.  I expect this is a thing that is best done in New Zealand.  That is not possible; neither parent seeks to relocate there.  I expect the maternal grandmother could be of assistance if the father sought assistance from her at any stage.  It may assist the child with an important sense of cultural identity.

5. The next matter I have to consider is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.  If I had the power to hand out Australia Day medals, I would award one of the highest honours to the father.  Once he was given responsibility for his son he underwent a “Road to Damascus” type conversion.  The evidence would indicate he has had a few lapses, but by and large he has acted with an extraordinary sense of self discipline and responsibility.  Unfortunately the mother's behaviour has been almost totally irresponsible.  I have no confidence her behaviour is likely to change in the foreseeable future.

6. The next matter I have to consider is any family violence involving the child or a member of the child's family.  The mother has a series of convictions for offences of violence, destruction of property, things of that nature.  The father does not have any convictions for offences of violence.  The father gave evidence that there was a relatively recent incident where the mother, contravening a domestic violence order, attended and created a scene.  I believe it was at the paternal grandparents' residence.  If the child was in the mother's care on an unsupervised basis I would have concerns he may witness his mother engaging in impulsive violent behaviour. 

7. The matter I have to consider next is any family violence order that applies to the child.  The father does have a domestic violence order covering the child and himself.  It expires in December this year.  As I understand the evidence the father intends to have that order renewed, and in my view, it would be wise to do so.  The evidence would indicate that the mother has breached the terms of domestic violence orders on a number of occasions.  The father has elected not to make complaint about such breaches.  I have to point out to the mother that the State Magistrates Court view such breaches very seriously these days, and often they can lead to terms of imprisonment.

8. Of necessity, pursuant to the orders that I am going to make, there will be some contact.  The mother should ensure that the contact is at all times such that there are no breaches of the terms of the domestic violence orders.

9. I propose to make orders as sought by the father, subject to one variation, and that is he sought an order initially that there be no contact.  He was quite ambivalent about that.  The position is that whatever contact occurs should be supervised by the father, at times as agreed between the parents.  He has total control of the situation, he can agree to once a month, he can agree to once every two months. 

10. I accept the father's self description, that he is something of a soft touch.  He is harassed on an almost daily basis with numerous phone calls from the mother.  I had the distinct impression that the mother was motivated, at least in part, in wanting to resume a relationship with the father.  I also had the distinct impression the father, although sympathetic to the mother, is not interested in resuming any relationship.  The father for his part wants to move on and he should be free to do so.

11. The child would benefit from being able to see the mother from time to time.  Despite the harassment in the past, the father has been able to control the situation such that the mother sees the child once every three weeks or four weeks.  It is his judgment as to whether the child is comfortable in the environment, whether the mother is behaving appropriately.  Recently there was a period of up to eight hours, so obviously the mother was well within control at that point in time.

12. In summary form my reasons for making orders in terms as indicated include:

    (1)    The mother does not have appropriate accommodation available.

    (2)    I am of the view the mother still has a serious drug problem.

    (3)    The mother is in urgent need of medical treatment for her mental illness.

13. I am of the view that any contact the mother is to have with her child should be supervised by the father at all times.  There is no other person who would be appropriate as a supervisor who has been nominated by either party.  I certainly would not involve the paternal grandparents because of their age and the difficulties that they have had over a period of time.  If for any reason the father is of the view that he can no longer supervise contact, well under the terms of the arrangement he simply does not have to agree with any proposals, he has got control of the situation.

14. The other major reason for making orders in these terms is the mother's propensity for violence and her otherwise unstable behaviour.

15. Notwithstanding the pressure under which he has been placed by the mother from time to time, I am inclined to accept the father's evidence that the mother only sees the child once every three or four weeks.  The mother was insistent that she spent more time there, but I am not accepting of that evidence.  I rely on the father to be able to best delineate how regularly and for what period of time, what terms and what conditions he wishes to place on any meetings between the mother and child.

16. If the mother were to take herself off illicit drugs and seek medical treatment for her mental condition, the father is in the best position to gauge whether the child would benefit from seeing his mother on a more frequent basis.  I am not suggesting it would be for one moment an easy task by the mother, but there is many a person suffering psychotic illness who is able to receive appropriate medical treatment and function at a reasonable level in our society.

17. I would conclude by saying I have the utmost confidence in the father to at all times act in what he perceives to be the child's best interests.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date:  7 August 2007