Meade and Meade

[2007] FamCA 1538

FAMILY COURT OF AUSTRALIA

MEADE & MEADE [2007] FamCA 1538

FAMILY LAW – CHILDREN – With whom a child lives – Where Mother seeks orders that children live with her and spend time with Father – Where Mother suffers from serious narcotics addiction – Where experts agreed as to potential psychological harm to children if they continue to reside with Mother – Ordered that children live with Father with matter adjourned until Mother undergoes a detoxification program.

APPLICANT: Mr Meade

RESPONDENT: Ms Meade

FILE NUMBER: BRF 6684 of 1999

DATE DELIVERED: 30 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 26 – 29 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appeared in person

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Hanlon, of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Peter Williams
Solicitor, Williams Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, T, date of birth … June 1993 and X date of birth … January 1995 live with the Father.

2. That the children spend time with the Mother at such time and places and on such terms as the parties may mutually agree in writing. 

3. In the event the parties are unable to agree, then the Mother is to spend time with         the children:

   (a)       in relation to the child T, at such times as he may elect;

   (b)in relation to the child X, at such times and subject to such conditions as may be recommended from time to time by Dr L;

   (c)       in relation to X, if either party disagrees with the            recommendations of Dr L, then the Mother is to spend time with X at such times and subject to such conditions as may be determined by this Court. 

4. The Father is to have sole responsibility for the long-term care, welfare and development of the children.

5. The Mother is to have sole responsibility for the daily care, welfare and development of the children during periods when they are in her care. 

6. The Father is to have sole responsibility for the daily care, welfare and development of the children during periods when they are in his care.

7. The Mother is to have telephone contact with X at such times as may be agreed between the parties in writing.  In the event they are unable to agree as follows:

   (a)      between 6.00 pm and 7.00 pm Monday, Wednesday and Friday of each week.

8. The Mother is to be at liberty to write to the children and send gifts to them    whenever she wishes.

9. The Father is not to change the children's present schooling without permission of the Mother in writing or by leave of this Court. 

10. That this Order shall be authority to the children's medical and educational providers to discuss with either parent the children's care, welfare, development and treatment.

11. The final determination of this matter is adjourned to a date:

    (a)when Dr L is satisfied the Mother has successfully completed   a multidisciplinary program for detoxification or is otherwise no longer drug dependent;

    (b)       or when the Court may otherwise determine to re-list this matter;

    (c)       or when requested so to do by the Independent Children's Lawyer.

12. Notwithstanding any other Order made today, the Mother is to spend from 8.00 am until 12 noon on Christmas Day with X and T, if he is willing.

13. The Mother to spend time with the child, X on her birthday, on … January 2008 from 8.00 am until 12 noon.

14. The Independent Children's Lawyer is given liberty to apply on forty-eight (48) hours notice to the parties of his intention to have the matter re-listed.

15. The Mother and Father to keep each other informed of their current residential address and telephone contact details.

16. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the Consent Order sealed and attached hereto.

IT IS DIRECTED THAT:

1. The Consent Order remain upon the Court file.

NOTATION:

Legal Aid Queensland is requested to continue funding for the Independent Children's Lawyer. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 6684 of 1999

MR MEADE

Applicant

And

MS MEADE

Respondent

REASONS FOR JUDGMENT

1. I am asked to determine who should have the care of two children, T, born in June 1993, he is currently in grade 9 at an all boys school in Brisbane, and X, commonly referred to as X, born in January 1995.  She is in her final year of primary school at an all girls private school.

2. The matter has proceeded before me over four days from 26 November through to yesterday's date.  The evidence concluded and I received submissions from the parties.

3. The father is the applicant in the proceedings.  He was born in 1965.  On my calculations he is currently 42.  The respondent mother was born in 1963.  She is currently 44 years of age.  The parties commenced their relationship in about September 1988.  They married in September 1991.  Final separation was in approximately March 1999, although there had been, as I understand the evidence, an earlier period of separation in 1997. 

4. At the present time T resides with his father and his partner, Ms N.  X resides with the mother.  The parties live in reasonable proximity to each other.

5. The current governing order is an order made by Bell J on 9 February this year.  That order in relation to T was in general terms as follows:

   The mother spend time with the child [T], born […] June 1993, at such times as the child desires.

   (2)  The father spend time with [X] from after school on Friday with the father to collect the child from school until before school on Monday morning in accordance with the following schedule of dates.

6. Thereafter is set out a series of dates up until July this year.  Those dates were largely based on the projection of the father's roster.  The order then provided for such dates thereafter as provided for in the father's roster. There was provision for the mother to have the child for special events or functions.  The mother was to give seven days notice in writing of such event or function and the times for X spending time with the father could be altered. 

7. Suffice it to say there has been widespread non-compliance with those orders.  The mother suggests the reason for non-compliance is X does not wish to go to spend time with her father. Other evidence before the Court would indicate that the mother has not encouraged her daughter to see her father and has acted at times in a positive way to prevent any contact. 

8. The father seeks orders in terms of an amended application filed on 15 October this year.  In summary form, those orders are that T live with him, the mother spend time with T at such times as the child desires, that X live with him, and the mother spend time with X at all times as may be agreed between the parties, but shall include from after school Friday until before school on Monday.  That proposal is almost a reverse image of what currently should be taking place.  He proposes half holidays, Christmas Day, child's birthday, et cetera.  He seeks various other orders about shared responsibility. 

9. At the conclusion of the hearing the position adopted by the Independent Children's Lawyer was for much more limited time to be spent by the mother with X.  The father, as I understood his position, simply adopted what the Independent Children's Lawyer had proposed. 

10. The mother filed a response document on 17 October this year.  In that document she seeks that T permanently reside with her with appropriate visitation with the father, and a second order, that X permanently reside with the mother with appropriate visitation which she is comfortable with to her father.

11. In the course of cross-examination the mother was asked in the light of the evidence which was before the Court did she seek those orders, and if so, would she be more specific as to the terms.  She proposed that for the child T it be shared care fifty-fifty.  She did not specify whether it should be week about, month about or whatever. I presume she also would incorporate shared responsibility for the child in relation to long-term decisions, but that was not canvassed.  For the daughter it was going to be full care to the mother.  Her original proposal in the course of her evidence was the father have the child every third weekend.  Later she amended that to say each fortnight 9 am Saturday till 5 pm Sunday and half school holidays.

The Father’s Case 

1. I turn to consider the evidence of the witnesses.  The father relied on four affidavits filed on 19 January this year, 15 October this year, which is his primary affidavit, and an additional affidavit of 9 November which attaches transcripts of conversations he has recorded between the parties.  The next witness for the father was the children's paternal grandmother, and the other witness was the father's partner, Ms N.  I was impressed with the honesty and sincerity of all three witnesses.  I have no reason to doubt their version of events.  Because of the pressure of time and the fact that I am only delivering an interim decision, I am not in position to elaborate at this point in time as to precisely why it is that I have arrived at that conclusion. 

The Mother’s Case

1. The respondent mother was the only witness in her case.  She relied on one affidavit which she had filed on 17 October.

The Independent Children’s Lawyer’s Case  

1. The Independent Children's Lawyer called evidence from two witnesses, Dr L, who had provided two reports dated 23 January 2007 and 26 November 2007.  He is a psychiatrist in private practice in Brisbane.  He has seen both parties and has provided detailed reports.  Ms M, a social worker, had provided a total of five reports; 8 November 2006, 20 November 2006, 23 January 2007, 19 November 2007 and after receiving Dr L's report she provided a report of 26 November.  There was a considerable body of subpoenaed material, a total of 25 exhibits have been tendered, and I have considered that material.

Background Facts

1. The father is a public servant. The mother was previously employed, but currently she is a homemaker and parent.  From separation in 1999 till about 2004 the relationship between the parties, so far as maintaining contact with the children was concerned, was excellent.  As a family, although separated, they went on a trip to Disneyland with the children.  There was a further trip to Vanuatu.  There was a cruise out of Sydney to Vanuatu.  All those trips I hasten to add were funded by the mother.  That is not in doubt.  The father says when he was on day shift he had the children virtually every weekend.  At one stage he said every weekend, other times 90 per cent of the weekends.  Suffice it to say he was seeing both children regularly and successfully.  When he was on night shift it was more difficult to arrange time to see the children, but he was welcome to have dinner at the mother's home on a regular basis and did so. 

2. The father's summary of that period of time is, "As long as I didn't disagree, things went smoothly."  I suspect that is a fairly accurate summary of what was occurring at that time.  The father says that in 2004 the mother proposed that they have more children together.  He rejected that proposal.  At that stage the father had commenced a new relationship with Ms N. I have detected throughout the evidence a profound jealousy by the mother towards Ms N.  Ms M in her first report at paragraph 49 quotes the mother as saying:

   He was just starting to go out with that piece.

3. I think the use of the word "piece" is fairly significant in the circumstances and is revealing of the mother's attitude towards Ms N. 

4. The mother stated in the course of cross-examination that her preference was for X to spend time with the paternal grandmother before progressing to spending any time with the father.  Her rationale was "don't forget there's another woman involved".  The father has been in a stable relationship with Ms N for about the last four years.  The evidence is redolent with examples of the mother's hostile attitude towards Ms N.  One good example is to be found in exhibit 24, which is a gift tag.  Apparently T had given the mother a box of chocolates.  I think it was for Christmas, but it does not matter; it was a gift.  The box of chocolates, as I understand the evidence, had this tag on it.  The mother sent both the chocolates and the tag to Ms N, presumably as a gift.  She had written on the tag "I hope you get what you deserve in life, plus more". 

5. In the course of her evidence the mother attempted to interpret this in a positive way.  When she was pressed about it in cross-examination to elaborate on the circumstances and what she really meant by the message she said, "Whatever."  Her evidence was she had been at the supermarket at the same time as Ms N and she had seen Ms N select the chocolates.  This meant it was not a genuine gift selected by T.  It is not clear on the evidence whether T was with Ms N in the shopping centre at the time.  Where the gift from the son is returned with the message such as this, having regard to all the surrounding evidence, the message could only be interpreted in a negative fashion.  Having regard to the mother's personality generally, it is likely to be more than coincidence that not only was she at the same supermarket at the same time as Ms N, she happened to be observing Ms N in such a studied manner that she could tell what she had placed in her supermarket trolley.  This is mere speculation on my part.  There were no questions on this aspect to elaborate.  I do accept the qualification that the parties live in the same general area and may attend at the shopping centre at the same time. 

6. The geographical position is that the father and the mother both live in the south-east Brisbane area.  So far as the children being able to traverse between the two addresses, there is no great problem.  T attends a private school in the Inner Brisbane area.  X attends S School, again a girls’ school in the Inner Brisbane area.  T is a tall boy at 6 foot 3 or 6 foot 4.  He plays in the school basketball team.  He plays in a club competition.  He has been selected in a representative team. His scholastic achievements are reasonable to good in all the circumstances.  He is doing better obviously in some subjects than in others.  There do not appear to be any behavioural problems. 

7. X's school record is simply outstanding.  She has at times had a high level of absenteeism.  She commenced school at S School at the start of the school year in 2004, which I assume was either late January or very early February.  By July 2004 the school records indicate, she had missed 23 days out of a total of 88.  That is an absenteeism rate of 25 per cent.  I have extracted the following further figures.  Out of a total attendance period to the present time from 534 days of school she has had a total period of absenteeism of 73 days.  I have not done the calculations, but I estimate that is about 15 per cent, which I would have thought is a high level of absenteeism.  I make no further comment.

8. The evidence before the Court at the conclusion of the trial was far different to that which had been presented in the affidavits and reports available to that point in time.  This change arose largely as a result of careful reading of the subpoenaed material by the Independent Children's Lawyer, and I acknowledge that. That material was then on forwarded both to Ms M and to Dr L.  The mother had been attending Dr A at a local Medical Practice.  She had been going there for many years, I think in excess of 10 years.  Her records indicate attendances as follows:  in 1996, one; 1997, zero; 1998, 10; 1999, two; 2001, four; 2002, 15; 2003, 49; 2004 when the relationship started to deteriorate, 55, about more than one a week; 2005, 45; 2006, 112; 2007 year to date, 70 plus. 

9. The mother has had numerous referrals to a wide range of specialists, all of which can be found in the exhibit of the medical records from that medical clinic.  The mother is currently medicated on 80 milligrams of OxyContin per day.  OxyContin is a slow-release narcotic.  She has been on it for close to 12 months.  Prior to that she had been on Endone, which is an identical drug, except it is fast release, and she had been on that for some 18 months to two years.  When Dr L received Dr A's medical records he issued an addendum report.  That addendum report was then referred to Ms M who likewise gave her final report. 

Dr L’s Evidence

1. I accept that Dr L is an experienced independent expert with a high level of objectivity.  He has a First Class Honours degree from University.  He has been a clinical senior lecturer at the Department of Psychiatry at a Brisbane based University.  He has been in private practice in Brisbane since 1993.  He has seen thousands of patients during his time in private practice.  He frequently prepares reports for this Court and for courts in other jurisdictions.  He presents to me as a talented and dedicated medical practitioner.  In his first report he made this observation about the mother in relation to access 1 symptoms.  Access 1 relates to major mental disorders, developmental disorders and learning disabilities.

   The mother does not present with a history of illicit substance abuse or of alcohol abuse. 

2. He then proceeded to make the observation she was suffering a form of depression.  He made observations about that.  Under the access 2 criteria he observed that she had a number of underlying pervasive personality conditions.  He describes those in the following terms:

   The mother's life story also is marked by what is assessed as a disturbed period of development in her childhood.  Her remarkable capacity to go without so as to provide for her children is therefore assessed as a compensatory mechanism to make up for her unmet emotional needs.  Such tactics are fraught with the complication of children not being grateful enough for the mother's self-deprivation.  Currently a major crisis for the parents and children involved in this matter.

3. The views expressed by Dr L accord with my own observations on the evidence. 

4. The mother, sadly, has not had contact with her own mother or her sister for approximately 10 years.  She does, however, have a close relationship with her father, and that can only be to the good.  Dr L provides a global assessment of functioning and he annexes how that is calculated.  In the mother's case he concluded the mother is not functioning well.  The rating is in the range of 61 to 70. I note another psychiatrist had seen the mother in 1998 and, coincidentally enough, he had assessed the mother's functioning rate as 60. 

5. The observations the doctor made of the father were again of a chronic depression syndrome.  He observed in that first report:

   While the mother presents as loud, volatile and pressured, the father is the exact opposite; quiet, withdrawn, passive and very quietly spoken. 

6. The global assessment for the father was a rating of 90 with minimal symptoms. The father had previously been on Zoloft, which is an antidepressant mood stabiliser.  The information he has given to the Court is that he is no longer on Zoloft and not medicated for his depression.  The father had a period of alcoholism which led to difficulties in his employment, but it would appear hopefully that is no longer a problem in his life.  I agree with the observations made by Dr L in his first report.  Such observations accord with my own as to the parties' demeanour.  It accords with the behaviour described in the evidence before the Court, particularly in the applicant's affidavits and the various reports of Ms M.

1. After the first report the doctor concluded that the mother needs to enter into a long-term medical management plan to manage chronic depression.  The reality is, as he expressed it as follows:

   I respectfully advise that the well-being of the children during the conduct of the legal proceedings is paramount.  I support the children attending the Court and that they wait together in a place of safety until the proceedings have concluded and that the parents then convey the outcome of the legal proceedings to them. 

2. I have taken notice of what Dr L has recommended there.  I reached the view that the parties would be not in the best position to convey to the children the outcome of the legal proceedings.  I had thought of delegating it to the Independent Children's Lawyer.  I propose to tell them myself.  I make the decision, I will be responsible for it.  I would ask Ms M to accompany me to my Chambers with the children after I have delivered this decision and made the orders that I propose to make. 

3. Dr L went on to say:

   The mother is vulnerable and fragile.  Her relationship with [X] is a key aspect of her reason for living, more so now that [T] is living with his father.  As evidenced by the drives she has to care for, the support and fund the child's life, the mother is at serious risk of self-harm if this support is broken, threatened or disrupted. 

4. I have said to the mother there is not a person in this courtroom that does not wish her well in tackling the addiction that she has and addressing the other problems as relayed by Dr L.  It will take enormous courage, enormous determination.  She has displayed those qualities in other areas and it is to be hoped that in the fullness of time she will be successful.  I note that probably against her better instincts and against her own thinking she has agreed to undertake this course.  It is a very positive sign that this morning she has taken herself to see Dr A and obtained a referral.  The referral is the first step in a lengthy, difficult process.  The mother has to go to the program and enrol.  She has to stay in the program.  She cannot relapse.  If she drops out of the program the consequences to herself as relayed by Dr L are serious.  It is a matter for her.  I cannot tell people how to run their lives.  All I can say, madam, is I have the greatest sympathy for you.  I know you are trying hard.  But you have to undertake that course for your own sake and for the children's sake, you have to undertake it successfully. 

5. The doctor in his first report in the penultimate paragraph concluded:

   There is a risk that the mother will not be able to follow, accept, adhere to the Court's findings due to a very powerful level of denial leading to an inability to accept the diagnosis and treatment recommendations in a process in which she externalises responsibility through the aetiology of the issues before the Court.

6. That is exactly what happened.  The doctor had made these recommendations as set out in his report that the mother seek immediate professional assessment and obtain a referral to a medical specialist, psychiatrist or psychologist. The mother made a token gesture of complying with that, she says, and nothing further happened until 12 months later. 

7. I turn to consider the second report.  The doctor was shocked from reading Dr A's records as to the mother's drug intake.  It was the legal equivalent of a bombshell being detonated in the courtroom.  The doctor said that in his 15 years of practice as a psychiatrist he had never had somebody lie so blatantly to him about drug intake.  That is a really significant factor.  Dr L says at the first time he had asked the Mother "What are you currently taking?" and she replied, "Panadeine and Nurofen, and the Nurofen's good."  The reality is in stark contrast to that. 

8. I reject the mother's description that the reasons for not disclosing the drug intake to both Ms M and Dr L was she was afraid of a knee-jerk type reaction, that if there is mention of narcotics, then people automatically form a negative view.  The mother's failure to disclose was deceitful and deliberate and does not bode well for the future to the extent, as Dr L has described, she is in large part in denial.  As I said, she is simply going to have to develop, force herself to the insight that she has a problem and there is no-one else in the world who can address that problem for her.  People can wish her well, can support her, but it is her problem alone and she must deal with it. 

9. I accept the contents and observations of Dr L's report.  Again commenting on OxyContin in that report he said:

   The introduction of OxyContin in 1995 resulted in increasing patterns of abuse.  While high doses of Oxycodone can be fatal to an opiate-naïve individual in and of itself, lethal overdoses of Oxycodone rarely occur.  Oxycodone has similar effects to Morphine and heroin and appeals to the same abuse community.

10. I do stress that the mother's conduct would appear to be completely legal.  There is no evidence before the Court of doctor shopping or of deceitful behaviour in the obtaining of her medications, although I have serious reservations about her evidence as to her drug taking.  The mother said that as of last Saturday she had no other tablets available and she went and picked up a prescription.  She then disclosed that she had quite a few more of these tablets than I had been led to believe.

11. When Dr L gave his oral evidence it was some of the most powerful evidence that I have heard in a courtroom in a long time.  He referred in particular to exhibit 12, which is a report from Dr P, a report almost 10 years old dated 9 December 1998.  He said at the bottom of page 1 of that report:

    Her family history was that her mother had apparently suffered some form of anxiety or hypochondriacal disorder over a period of many years. 

12. Dr P went on to say:

    On mental state examination she presented as somewhat elated and discursive, suggesting possible histrionic personality traits, but presented well from an affective and cognitive perspective.  I was a little concerned about the severity of her anger attacks and thought that this was an area that may need to be pursued in therapy.  Diagnostically, I think on access 1 she has a largely treated major depression.  There is a probability of a significant somata form disorder and substance use disorder currently in remission. 

13. On access 2 mixed personality traits he went on to observe:

    I feel that her situation is quite a difficult one and that she is likely to require a multipronged approach utilising continuing medications, possibly with adjunctive mood stabilisers. 

14. That is what Dr L had recommended some 14 years later and still the mother has done nothing about it.  She tells the Court that now she will do something about it. 

15. In oral evidence to the Court Dr L adopted the diagnosis of somatization.  He produced an article prepared by Dr Bruce Singh, who is a Professor of psychiatry at the University of Melbourne.  That has been marked exhibit 16.  A copy has been given to the parties.  I would request that the Independent Children's Lawyer refer same to Dr A if she requests a copy of it.  I understand the parties are agreeable that Dr A receive all of Ms M's reports and Dr L's reports.  I think that should accompany Dr L's reports.  Dr A indicated that she thought she would be assisted in treatment of the mother by reading those reports.  Dr A impressed me – I overlooked referring to her as a witness – she was called under subpoena at the last minute, had not filed any material.  At first blush I was somewhat concerned that a medical practitioner would allow the mother to be on such high levels of narcotics for such a prolonged period of time.  She deferred to Dr W, who is authorised under Queensland Health to authorise the prescriptions for narcotics.

16. I was impressed with Dr A's sincerity.  I am sure she has got the mother's best interests at heart and she will be assisted by this material, and lengthy though it be I am sure she will find the time to read that material and take it on board. 

Factors to be taken into account

1. The law requires me to consider the factors set out in s.60CC.  That section breaks the factors down into primary considerations and additional considerations.  The first primary consideration the Court has to consider is the benefit to the child of having a meaningful relationship with both of the child's parents.  Sadly, T will not see his mother at present.  The view that I take on the evidence is that that is something the mother must take responsibility for.  I do not believe that in any way, shape or form the father has directly influenced his son to take that attitude.  X is not seeing her father.  I accept that she has a relationship with her father when she does see him.  There is the evidence of the 80th birthday party where apparently she was crawling all over him and would not let him go.  I accept on the basis of that evidence and other evidence that when X does see her father she has a good time and is cared for appropriately.  

2. The mother has, in my view, actively prevented the development of a proper relationship between father and daughter. The most likely motivation is her jealousy towards Ms N.  Really it is not necessary to ascertain why she acts as she does.  It is sufficient to find that she discourages the relationship. 

3. The summary of all that is if the children are placed in the father's care on an interim basis – and I have indicated that I only intend to put in place temporary orders – there is a possibility of the children having a satisfactory relationship with both parents.  If the current situation prevails or if both children were placed in the mother's care, the possibility of those children having a meaningful relationship with their father borders on zero. 

4. The process with T I will discuss shortly as to whether orders should be made for a child of his age and his situation.

5. The second primary consideration I have to take is the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.  The evidence of Dr L would indicate that if X remains in the mother's care there is a risk of psychological harm unless she withdraws from narcotics. As night follows day, she will require higher and higher doses of narcotics.  Dr L says when that happens her conduct will become increasingly aberrant.  She would not sleep regularly.  Her thinking will become distorted and a host of other symptoms which Dr L particularised in his evidence.

6. For the mother, as I have indicated, Dr L's view is that drug dependency is not the only issue.  He referred to the personality disorders and the somatization.  That has led to the drug addiction. 

7. The view that I have formed is that X is likely to be increasingly enmeshed with her mother if nothing is done.  She will become the child parent; there is a strong likelihood of that.  I accept that the mother has been very generous.  I accept that she has worked hard and tirelessly to ensure the success of her children.  The price to be paid is that the mother expects and demands total appreciation for her efforts.  I have referred to Dr L's report in that regard.  If in the fullness of time the child is not forthcoming with sufficient gratitude the mother will reject the child.  That appears to have happened in T’s case. 

8. Under the additional considerations I have to consider a range of matters including views expressed by the children.  As stated in Ms M’s detailed reports, T has no wish to see his mother at the present time.  It is likely that the mother's non-compliance with the Court orders of Bell J of February this year could be interpreted as a tit for tat exercise in that if she cannot see T, then the father cannot see X either.  I bear in mind though that the father was having increasing difficulties seeing the children from the time he commenced his relationship with Ms N.

9. I have taken into account the ages of the children and their wishes, in arriving at my determination.  I have to say my determination is made easier by the fact that in the course of cross-examination the mother developed some insight and she has agreed to undertake the recommended course. That is what she is telling the Court. As with Dr L, I have concerns that she is saying one thing and whether she carries through with that is another.  One minor example is that late in the piece, yesterday afternoon, I was discussing the Christmas holiday period.  I invited the parties to discuss that.  The mother simply said, "Well, I'm taking [X] down to the Gold Coast for three weeks."  My first response is what about the detoxification program that the mother had agreed to enrol for next week? There is that ambivalence in her statements which concerns me.  However, I have no control over whether she does it or not.  But if she does not there are consequences.  There are serious consequences to her personally and there are serious consequences vis-à-vis her ongoing relationship with X.  

10. Dealing with the nature of the relationship of the parents with the children, I was urged to make orders in relation to T.  It is not my practice to make orders for someone who is 6 foot 3 and will turn 15 next year.  However, I am mindful of the submissions that have been made.  What I propose to do is to name T in the orders, but I will provide that T is only required to spend time with his mother if he wishes to.  I am not going to force him at his age against his will.  I am satisfied, as I have said, that X has had a good relationship with both parties.  She is closely bonded with the mother.  It is, however, likely to deteriorate to an unhealthy relationship in the near future unless something is done and that has to be done critically and expeditiously. 

11. The other factors that I have to consider relate to the willingness and the ability of each of the child's parents to facilitate and encourage a relationship.  I have really dealt with that in the first matter that I had to consider.  I have to consider the likely effect of any changes in the children's circumstances.  I do not need any convincing X will be devastated at not remaining in her mother's care.  She cannot remain in her mother's care because the mother is going to be undertaking a detoxification program for two, three, four weeks, and thereafter – that is not the end of it – she has to be under Dr L's care at least once a month.  I am not clear on Dr L's role.  Is he simply giving an assessment to the Court or is he going to be the treating psychiatrist? 

12. Again it is not my function to tell Dr L how to conduct his medical practice.  He will determine whether he is to be simply an assessor and/or the treating doctor.  He would have to discuss that with his patient.  But I can only say that because of the enormous stress to the mother as she is undergoing this program it is appropriate that for that time being X be placed in her father's care, and I propose to so order.  As I understood the situation, the mother was in effect accepting of that, but in very limited terms.  She thinks it will be over before Christmas.  Sadly, I do not think it will. 

13. The order that I propose to put in place in is in terms that the mother is to see X on such terms as recommended from time to time by Dr L, subject to the parties having the right to refer the matter back to Court.  I can indicate that I am not going to lightly go against any recommendations of

    
    

    Dr L.  I cannot delegate total responsibility of decision-making to a third person.  The law does not allow me to do it.  So there is supervisory role in my position, but I am delegating it to Dr L for good reason; that he is the expert, he is involved in the case and he is prepared to see the mother on a monthly basis.  If he says overnight contact is fine, then I expect the father will accept that.  It is to be hoped that over a period of time if Dr L says in all the circumstances X should be returned to her mother, I would happily make that order.  But if I do so that is when I move into final order mode.  I want there to be regular time spent, regardless of what happens to T, by X with her father.  If the mother is not accepting of that there will be one conclusion, and that is, the child will stay permanently with her father. 

14. I have to consider the capacity of the parties to provide for the needs of the children, including emotional and intellectual needs.  The mother more than caters for the children's intellectual needs. Dealing with the children's emotional needs is far more difficult.  The mother has presented as a very controlling and at times volatile personality.  The father, as noted by Dr L, is extremely passive.  The mother's thinking is at times tangential.  She has a high level of drug dependence.  Dr L has not made the observation of the psychiatric term "projection", but certainly it occurred to me that there was a deal of that in the mother's behaviour.  And Ms M readily agreed with her observations from her professional experience the mother tends to project onto others or attribute to others her own idiosyncratic behaviours. 

15. I propose for the reasons I have given to put in place the orders which I am about to read into the record.  There have been positive signs this morning, the mother getting the referral and the mother agreeing to drop the domestic violence proceedings.  I can only wish her well that she will go the distance and be successful in her recovery and be able to be restored to a fulfilling relationship with her daughter. 

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

Associate: 

Date:  30 November 2007