Makers and Makers

[2007] FamCA 1545

FAMILY COURT OF AUSTRALIA

MAKERS & MAKERS [2007] FamCA 1545

FAMILY LAW – CHILDREN –With whom a child spends time – Application by Mother for unsupervised time – Where Mother contacted Maternal Grandmother threatening to harm children – Where treating psychiatrist agrees with Mother’s attestations to the contrary – Where Mother has not attended for independent psychiatric assessment – Application denied

Family Law Act 1975 (Cth)

APPLICANT: Mr Makers

RESPONDENT: Ms Makers

FILE NUMBER: BRC 494 of 2007

DATE DELIVERED: 16 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Drysdale of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Bennett & Philp Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Horgan, Solicitor of Wheldon & Associates, Solicitors appeared for the Respondent Mother

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother’s application for unsupervised time with her children is dismissed.

IT IS FURTHER ORDERED THAT:

1. The interests, in these proceedings of the children, J born … July 1993 and B born … January 1998, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

2. The Father’s Application in Form 1 filed 27 July 2007 be adjourned to a date to be fixed before a Registrar for directions.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC494 of 2007

MR MAKERS  

Applicant

And

MS MAKERS  

Respondent

REASONS FOR JUDGMENT

1. The parties in this litigation are the natural parents of two children, J who is 14 having been born in July 1993 and B who is nine born in January 1998.

2. Consent orders were entered into in January this year.  The effect of those orders was that the parents would have equal shared parental and residential responsibility for the children and the children were to live with the mother for no less than 10 days per calendar month consisting of a five day block per fortnight, with each such block to include a weekend and arrangements for half school holidays.

3. The matter came before me on the urgent application of the father on 3 August this year.  There had been concerning incidents on 3 June as I recall which I will detail shortly.  On 3 August interim consent orders were entered into and the terms of those orders were that the contact provided for in the original orders in paragraphs 4, 5, 6 and 11 was to be supervised.  Some supervision has taken place but not without difficulty as I understand it.  Supervision has not been at a contact centre, but by friends and acquaintances.

4. The matter was then adjourned to 26 September.  The father was overseas at that time.  The children were being cared for by his parents so the matter was again adjourned to today's date.  Each party has at all times been legally represented.

5. On today's date the father seeks an order for the appointment of an Independent Childrens Lawyer to become involved as an independent focus and facilitator.  The father also seeks for the mother to attend for an independent psychiatric assessment. 

6. For her part the mother presses on today's date that the requirement for supervision be lifted.  She refers in particular to a detailed report from her treating psychiatrist, Dr D.  I shall refer to that report shortly. 

7. I have to consider what evidentiary material has been placed before the Court since the consent orders were entered into on 3 August.  The mother filed an affidavit on 21 September and a further affidavit by leave on today's date.

8. The father filed an affidavit from the maternal grandmother on 29 August this year. 

   In that affidavit the maternal grandmother Mrs S deposes to receiving a phone call from the respondent mother which contained an explicit threat to harm the children and that was the threat that was made on 3 June.  The father deposes that he spoke to the mother's sister Ms H on 27 June and she informed him that the mother had made a threat to harm the children.  That threat was in almost identical terms to the one deposed to in the affidavit by the maternal grandmother.

9. In her affidavit filed on 21 September this year at paragraph 2.15 the mother says:

   "As to the father's hearsay accounts of my telephone conversations with my mother and sister on 3 June 2007 as detailed at paragraphs 17, 18 and 26 of the affidavit I deny ever having made any comment to my mother or my sister that I was going to hurt the children.  I specifically deny that I made any comment about smothering the children.”

10. Paragraph 2.16:

    "I do say that in the conversation with my mother on 3 June 2007 I did say that I was tired of the arrangement whereby the children's time was being shared between the father and myself and I said that I would prefer for the children to be with me full-time and I did say that I anticipated that I could only do this if I took the children away.”

    On today's date I specifically raised with the mother's legal representative whether she persisted with the denial that she had ever made such statements to her mother and sister and I was informed that she did.

11. To the affidavit of the mother of 21 September she annexes a brief report from her treating psychiatrist Dr D.  In that report dated 13 August 2007 Dr D observes:

    "A new problem has arisen recently.  She rang her sister and said in a state of frustration that she feels like going away with the children.  The sister and her mother have filed a complaint and [the mother] feels they are assisting her husband's cause and have blown the statement out of proportion.  The implication is that the children are at risk from [the mother].”

    In the penultimate paragraph the doctor observes:

    "I do not believe that [the mother] represents any risk to the children and there is no suggestion that she would abduct the children or harm them in any way.  Apparently the accusation was made that she would smother the children.  There is no basis to this whatsoever.”

    The mother's affidavit of today annexes a more detailed report from Dr D, that report is dated 15 November.

12. I turn to consider the issues that I am asked to determine.  The appointment of an Independent Children’s Lawyer is not opposed.  It is obvious the matter is not going to resolve between the parties in the short-term. 

    ORDER DELIVERED

13. In relation to the request for an independent psychiatric assessment the submission is made that Dr D is the treating psychiatrist and in these forensic exercises it is usual to engage an independent psychiatrist who is in no way compromised in expressing views about the patient as a treating psychiatrist may be compromised by having to write a report when he is involved in ongoing treatment.

14. The mother really does not oppose an independent assessment.  The father's legal representatives had written requesting that she attend for an appointment with Dr W.  That appointment date had been arranged.  The father offered to pay half of the assessment costs.  The costs of the report were said to be in the range of $3,000 to $3,500.  The mother said she did not attend because she was simply unable to pay this amount.

15. If the mother wants a clean bill of health I would suggest that she proceed to see Dr W privately as soon as possible. With the appointment of an Independent Children’s Lawyer a psychiatric assessment will be arranged and presumably paid for in the first instance by Legal Aid Queensland. That process will take much longer.  First of all, there has to be the appointment by Legal Aid of the Independent Children’s Lawyer, the Independent Children’s Lawyer has to come back to Court, the Court has to give directions and so on and then the appointment gets made.

16. I make no further comment than this.  I do not propose to order on today's date that the mother attend for a psychiatric assessment on the basis I do not propose to order the father to pay the whole of it and the mother, as I understand it, is in full-time employment … - - -

    RECORDED:  NOT TRANSCRIBED

17. I would have thought whether she can claim it on any form of medical benefits that is problematical, but I would have thought she should be able to if she is employed to raise sufficient funds to pay half of Dr W's report.

18. The third issue is the critical one and that is the mother wants the supervision order lifted. She says that her opportunities to see the children have been limited by the requirement for supervision.  I note that in her own affidavit, the most recent one, that for the forthcoming Christmas holidays she says of the child J, who is 14:

    "My son [J] has already said to me that during the forthcoming school holidays he does not want to spend time on the Gold Coast as he wants to obtain a casual job in Brisbane to earn money over the holiday period.”

    One can take that statement by J at face value and it is common enough that 14 year olds want to earn money and they want to be independent.  It could also be J sending a message that he would rather not have contact.  I do not propose to traverse that area, but there has been nothing in the material filed in recent times which would persuade me to lift the order for supervision which was made by consent on 3 August.

19. I accept the force of the submissions made by counsel for the father that it is concerning that the respondent's mother and sister would make statements in terms that they have done if they are not true.  The mother denies that such statements were made.  She may well be telling the truth.  What concerns me is that the mother says she has a clean bill of health from her treating psychiatrist when in fact it may be that the information the treating psychiatrist has been given by the mother is wrong.  That needs to be determined objectively outside the parameters of the treating psychiatrist. 

20. The view that I take is it is self-evident from his report that he has accepted the mother's assurances that she had not made threats to her children.  His view in expressing an opinion may well be quite different if he was apprised of the fact that the source of the information was the mother's own family members who claim to have had direct information from her on 3 June.

21. Orders were made for good reason by consent.  I did not make the orders, they were by consent on 3 August.  As I have said, there is nothing in the evidence since 3 August which would lead me to alter the order made at that time.  I would have been persuaded by Dr D’s report in ordinary circumstances other than the fact that it may well be based on a false premise.

22. So regrettably, supervision will remain in place.  I understand the problems that that produces, but the sooner this matter can move forward and be resolved the better.  As I have noted, the best thing the mother can do is to attend for an independent psychiatric assessment and trust that that report is favourable in which case supervision requirements can be readily removed.

    RECORDED:  NOT TRANSCRIBED

23. The matter is adjourned for further directions before a Registrar after the appointment of the Independent Childrens Lawyer.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date: 16 November 2007