Montgomery and Montgomery

[2007] FamCA 72

FAMILY COURT OF AUSTRALIA

MONTGOMERY & MONTGOMERY [2007] FamCA 72

FAMILY LAW - CHILDREN - Best interests - Child live with paternal grandmother - supervised contact for both parents - allegations of sexual abuse by father

APPLICANT: Mr Montgomery

RESPONDENT: Mrs Montgomery

INDEPENDENT CHILDREN’S LAWYER: Luke Adamson

FILE NUMBER: SYF 6914 of 1999

DATE DELIVERED: 14 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: Litigant in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: n/a

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Adamson Solicitors

Orders

1. The current parenting orders in relation to E born in January 1998 (“E”) be suspended.

2. A reside with the paternal grandmother, Mrs Montgomery in the home of her paternal aunt Ms G and that Mrs Montgomery supervise E at all times that she is not at school.

3. The child spend time with her father as follows:

   3.1.For a period of 7 days, not more than 2 hours each day

   3.2.For a further period of 7 days, not more than 4 hours each day

   3.3.There after such time as agreed between the paternal grandmother and the father.

4. The child spend time with the mother each Saturday for a period of up to 2 hours.

5. At those times that the father is spending time with the child it be supervised by the paternal grandmother, Mrs Montgomery. Mrs Montgomery must be psychically present and not absent herself from any room or space that the child and father are occupying.

6. The mother’s time spent with the child be supervised by a person or persons approved by the Independent Children’s Lawyer.

7. There be no restriction on Mr B staying over at the home in which E is residing.

8. I direct that the report of the Chapter 15 Expert Dr C dated 19 January 2007 be released to Ms H for the purposes of counselling with E.

9. The mother is prohibited from directly or indirectly approaching, contacting or enquiring of the child to any person or agency until further order.

10. The independent children’s lawyer is directed to approach the person in charge at D School for Girls, for the purposes of implementing the change over of residence.

11. Leave is granted to re-list by either of the parties on 72 hours notice.

12. Dr C provide a supplementary report in relation to the meetings referred to in notation A. 

13. The matters to be covered by the supplementary reports will cover matters in respect of which Dr C was asked to report initially and any other matter that she believes is relevant. 

14. I note Dr C’s recommendation that the mother obtain an assessment in respect of her mental health and I direct that the mother, with the assistance of the Independent Children's Lawyer, make an arrangement for an assessment of her mental health by a psychiatrist.  The mother will inform the Independent Children's Lawyer of any appointment that she makes for that assessment and the Independent Children's Lawyer will provide to the psychiatrist a copy of Dr C’s report and any report, from that psychiatrist who the other sees, should comment upon the conclusions Dr C reached as a result of the mother’s presentation at the interview before Dr C on 21 December 2006. 

15. The mother is to be restrained from approaching E, approaching E’s school, approaching any of E’s friends or approaching or communicating with Ms T.

16. The paternal grandmother will ensure that E continues her regular meetings with Ms T.

17. I specify that the order that I have made allowing E to spend time with her father is inconsistent with an existing family violence order.

18. On the information before me the paternal grandmother can provide adequate supervision for E in the presence of her father  

19. I direct that the Magellan Registrar provide a copy of these orders pursuant to Section 68P(3) to the persons referred to in that section.

20. The mother comply with any request and direction by the Independent Children's Lawyer to deliver up any of E’s personal possessions that he may request that she deliver and comply with any directions in relation to any arrangements in respect of the delivery of those items. 

21. Pursuant to s.65DA(2) and s.62B, 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. 

NOTATION

A.I note the Independent Children’s Lawyer is to co-ordinate the family assessment of the maternal family with Dr C and facilitate Dr C meeting with the paternal grandmother, Mr B, Ms G and the father with E.

B.I fix the matter for a final hearing commencing 26 March 2007 for 4 days before me.

C.I direct that the parties file a list of material filed on which they rely and any additional material that they seek to rely on, no later than Friday, 9 March 2007.

D.Fix the matter for mention at 9.30am on 16 March 2007 before a Registrar for compliance.

E.I note that the father intends to maintain the enrolment of E at D School for Girls.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 6914  of 1999

Mr Montgomery

Applicant

And

Mrs Montgomery

Respondent

REASONS FOR JUDGMENT

1. On 9 February 2007 I made orders in the following terms:

   1.The current parenting orders in relation to [E] born [in] January 1998 (“[A]”) be suspended.

   2.[E] reside with the paternal grandmother, [Mrs Montgomery] in the home of her paternal aunt [Ms G] and that [Mrs Montgomery] supervise [E] at all times that she is not at school.

   3.The child spend time with her father as follows:

   3.1.For a period of 7 days, not more than 2 hours each day

   3.2.For a further period of 7 days, not more than 4 hours each day

   3.3.There after such time as agreed between the paternal grandmother and the father.

   4.The child spend time with the mother each Saturday for a period of up to 2 hours.

   5.At those times that the father is spending time with the child it be supervised by the paternal grandmother, [Mrs Montgomery]. [Mrs Montgomery] must be psychically present and not absent herself from any room or space that the child and father are occupying.

   6.The mother’s time spent with the child be supervised by a person or persons approved by the Independent Children’s Lawyer.

   7.There be no restriction on [Mr B] staying over at the home in which [E] is residing.

   8.I direct that the report of the Chapter 15 Expert [Dr C] dated 19 January 2007 be released to [Ms T] for the purposes of counselling with [A].

   9.The mother is prohibited from directly or indirectly approaching, contacting or enquiring of the child to any person or agency until further order.

   10.The independent children’s lawyer is directed to approach the person in charge at [D] School for Girls, for the purposes of implementing the change over of residence.

   11.Leave is granted to re-list by either of the parties on 72 hours notice.

   12.[Dr C] provide a supplementary report in relation to the meetings referred to in notation A. 

   13.The matters to be covered by the supplementary reports will cover matters in respect of which [Dr C] was asked to report initially and any other matter that she believes is relevant. 

   14.I note [Dr C’s] recommendation that the mother obtain an assessment in respect of her mental health and I direct that the mother, with the assistance of the Independent Children's Lawyer, make an arrangement for an assessment of her mental health by a psychiatrist.  The mother will inform the Independent Children's Lawyer of any appointment that she makes for that assessment and the Independent Children's Lawyer will provide to the psychiatrist a copy of [Dr C’s] report and any report, from that psychiatrist who the other sees, should comment upon the conclusions [Dr C] reached as a result of the mother’s presentation at the interview before [Dr C] on 21 December 2006. 

   15.The mother is to be restrained from approaching [E], approaching [E’s] school, approaching any of [E’s] friends or approaching or communicating with [Ms T].

   16.The paternal grandmother will ensure that [E] continues her regular meetings with [Ms T].

   17.I specify that the order that I have made allowing [A] to spend time with her father is inconsistent with an existing family violence order.

   18.On the information before me the paternal grandmother can provide adequate supervision for [A] in the presence of her father  

   19.I direct that the Magellan Registrar provide a copy of these orders pursuant to Section 68P(3) to the persons referred to in that section.

   20.The mother comply with any request and direction by the Independent Children's Lawyer to deliver up any of [E’s] personal possessions that he may request that she deliver and comply with any directions in relation to any arrangements in respect of the delivery of those items. 

   21.Pursuant to s.65DA(2) and s.62B, 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. 

2. I made notations in the following terms:

   A.I note the Independent Children’s Lawyer is to co-ordinate the family assessment of the maternal family with [Dr C] and facilitate [Dr C] meeting with [Mrs Montgomery], [Mr B], [Mr G] and the father with [E].

   B.I fix the matter for a final hearing commencing 26 March 2007 for 4 days before me.

   C.I direct that the parties file a list of material filed on which they rely and any additional material that they seek to rely on, no later than Friday, 9 March 2007.

   D.Fix the matter for mention at 9.30am on 16 March 2007 before a Registrar for compliance.

   E.I note that the father intends to maintain the enrolment of [E] at [D] School for Girls.

3. Whilst I gave short reasons on 9 February 2007 I indicated that I would provide fuller reasons when time permitted and I now do so.

4. This case is about E who was born in January 1998 and she is currently 9 years old. 

5. A consent order was made in this matter on 14 October 2005.  Under that consent order E was to reside with her mother.  The father was to have contact with E to be exercised only in the event his sister and mother fully supervised the contact.  The supervision was to be for six to twelve months.  It would be less than twelve months if the parties agreed. 

6. It is alleged that on Saturday 17 December 2005 the child was touched her father “on her front bit” and she was made to touch his penis.  E has not seen her father since. 

7. In March 2006 the mother contacted the Department of Community Services and JIRT.  E was interviewed.  She made allegations of sexual abuse by her father.  Interim AVOs were issued by the B Local Court on 24 March 2006 and 28 April 2006, the child being the protected person. 

8. The matter is now listed for final hearing before me over four days commencing 26 March 2007. 

9. On 15 September 2006 by consent I ordered a further expert report.  The report was to be prepared by Dr N. 

10. When the matter came before me on 15 December 2006 I was informed by the Independent Children's Lawyer that the parties (who were present in Court) and the Independent Children's Lawyer had agreed that Associate Professor C prepare the report and in fact I was told she had commenced interviews for that report.  The matter proceeded on the basis that Associate Professor C rather than Dr N would prepare the report. 

11. Associate Professor C is an associate professor of the School of Psychiatry at a NSW University and is a consultant forensic child and family psychiatrist in private practice.  She has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists for over 30 years (her full curriculum vittae is attached to her report). 

12. Associate Professor C produced a report dated 19 January 2007 after reviewing material produced from a Sydney Hospital; the Department of Community Services; police records; clinical notes from Dr B, northern suburbs; documents received from the Independent Children's Lawyer and a family report prepared by Dr N  dated November 2004; a supplementary report by Dr N of March 2005; a report by Dr M; affidavits by the paternal grandmother, the sister of the father, the father, the paternal grandfather and having interviewed the father and his family, the mother and E. 

13. On the front page of the report from Associate Professor C the following words appear:-

    “CAUTION: 

    I recommend that this report not be released to the parties until their attendance at Family Court.”

14. Having read the report, aspects of it caused me concern. 

15. Associate Professor C interviewed the mother on 21 December 2006.

16. The interview with the mother and E is recorded on pages 37 – 45 and 48 of Associate Professor C’s report. 

17. At page 45 of the report Associate Professor C notes that during the interview with the mother, she was very excitable and there was manifest thought disorder and psychomotor excitation.  She noted that her speech was disjointed.

18. On page 48 Associate Professor C records that after she terminated the interview with the mother she made a notification to DoCS on 28 December 2006 of her concerns regarding the mother’s mental state. 

19. At page 50 the following paragraph appears:-

    “[The mother] appears to be suffering from some form of paranoid and/or personality disorder.  She is a very disturbing person to relate to and [E] too must experience her in this way.  As manifested on the day of this assessment it was such that would make an adequate parent child interaction almost impossible.”

20. At page 54 Associate Professor C says:-

    “I recommend that this report not be released to the parties until their attendance at Family Court as there is a risk that it may precipitate an escalation from the mother that may have serious consequences for the child”. 

21. At page 55 and 56 Associate Professor C says:-

    “The material with which the mother was preoccupied was clearly distressing for her, but the level of her hyperarousal and irritability far exceeded what would be expected in a simple reaction to stress or trauma.  In the absence of drug intoxication or organic illness, the psychiatric conditions that would account for her presentation are:-

    1.  Cluster B Personality Disorder with mixed narcissistic and borderline features, but, mostly especially, marked affect dysregulation.  Borderline personality features:  intense and poorly controlled anger, stress related paranoid ideation, affective instability, currently presenting a paranoid psychotic state and possibly fear of abandonment (in that the maternal family appears enmeshed and may be unable to separate from each other).  Paranoid states are feature of Borderline Personality Disorder but are transient and this distinguishes them from other more psychotic disorders.  Narcissistic features: grandiosity, lacking empathy, entitlement.

    2.  Psychotic disorder with strong affective component, grandiose and paranoid themes and labile affect.  If transient such a presentation can be accounted for by Borderline Personality Disorder but if sustained over time it is more likely to be a primary disorder such as Bipolar; Schizoaffective or Delusional Disorder.”

22. The report came to my attention on about 30 January 2007.  I made the following orders in chambers:-

    1.This matter be listed before Justice Watts at 10am on 9 February 2007. 

    2.[The mother], [the father], [the paternal grandmother], [Mr B] and [Ms G] and the Independent Children's Lawyer be personally present.

    3.[The mother] bring [E] born [in] January 1998 to the child mind centre at the Family Court, level 2, 97-99 Goulburn Street, Sydney at 9.45am on 9 February.

    4.The report of Associate Professor [C] dated 19 January 2007 be forthwith released to Mr Adamson, the Independent Children's Lawyer and that the Independent Children's Lawyer discuss the contents with Associate Professor [C] but not discuss the contents of the report with the parties prior to 9 February. 

    5.The Independent Children's Lawyer inquire as to whether  Associate Professor [C] would be available by electronic communication to give oral evidence at some point on 9 February after 12 noon and that as soon as possible he communicate with the Magellan Registrar in relation to that arrangement.

23. The mother informed my associate that E was on school camp on 9 February.  On 2 February 2007 I made an order that order 3 made on 30 January 2007 be vacated.

24. On 9 February 2007 the report was released to both of the parties at about 10am.  The parties were given about two hours to read the report.  The matter was called after noon.  Associate Professor C gave oral evidence by telephone.  She was questioned by the mother.

25. Associate Professor C confirmed her provisional diagnosis as to the mother’s mental health and specifically confirmed her opinion that there was a risk that the release of the report may precipitate an escalation from the mother that may have serious consequences for E. 

26. Based on that evidence and pending the final hearing I made an order that E reside with the paternal grandmother in the home of the paternal aunt. 

27. Consistent with evidence given by Associate Professor C I provided that E spend some time with both her parents in the interim on certain conditions that are set out in the orders.

28. Based on the comments made by Associate Professor C at page 56 of her report as set out above I made order 14. 

29. Associate Professor C is yet to see the members of the mother’s household.  I note in notation A that the Independent Children's Lawyer will coordinate the family assessment of the maternal family with Associate Professor C who will then provide a supplementary report (see orders 12 and 13). 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  14.2.2007