Morgan and Jones

[2009] FamCA 1162

FAMILY COURT OF AUSTRALIA

MORGAN & JONES [2009] FamCA 1162

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT: Mr Morgan

RESPONDENT: Ms Jones

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 6583 of 2007

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 5 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. O’Neill of Counsel

SOLICITOR FOR THE APPLICANT: Blanch Towers Lawyers

THE RESPONDENT: The Respondent appeared on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders

1. The child, B born … June 2002 (“the child”) shall live with the Father.

2. The Mother shall spend time with the Child for two hours per fortnight supervised by the E Contact Centre commencing Sunday 15^th November 2009.

3. The Father shall notify the Mother immediately, or at least within 4 (4) hours of any significant accident or illness, hospitalisation or medical emergency that might arise in relation to the Child whilst the Child is in his care.

4. The Father keeps the Mother informed about the welfare and education of the child.

5. Each party keep the other informed of their residential address and contact landline and mobile telephone numbers and provide notification of any change within 48 hours of such change. Both parties acknowledge that these details are to be used for the sole purpose of communication regarding the Child’s care and welfare only.

6. Ms O is appointed pursuant to section 65L(1)(b) of the Family Law Act1975 to be the mental health case worker for the Mother and that she provide a further report to the Court not less than six (6) months after the making of this order on the mental health status of the Mother including but not limited to reporting on any steps the Mother has taken in treatment of her mental disability.

7. The Independent Children’s Lawyer’s appointment continue until further Order of the Court.

8. The matter be adjourned for mention at 9.30am on Friday, 18^th June 2010.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6583 of 2007

MR MORGAN

Applicant

And

MS JONES

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Mr Morgan, hereinafter referred to as the applicant, for parenting orders in relation to a child, B, born in June 2002, the result of a union between himself and the respondent, Ms Jones. 

2. I believe that an intermittent de facto relationship commenced in or about the year 1999 and this continued on with many breaks and unfortunate occurrences between the parties, until about 2007, when they finally separated in that year and have not lived together in a de facto relationship since.

3. I have already touched upon the fact that the child was born in June 2002;  he is, thus, 7 years of age.  Subsequent to the separation the child lived with the mother, continued to do so and notwithstanding the fact that the mother did, on at least two occasions, remove herself with the child as she says, to protect herself and the child from the violent acts upon her person by the father, which I do not accept.  She has lived generally in the area of south-east Queensland.

4. The father has spent time with the child on frequent occasions and a number of consent orders were made between the parties, the last of which was earlier this year.  I do not have it to hand unfortunately.  That order indicated that the parties were to share the spending time with the child on a week-about basis.  Much looms in relation to that:  whether, in fact, the mother or the father complied strictly with the order or otherwise, and I will touch upon that at a later stage.

5. I am mindful of the directions which have been imposed upon this court by the politicians in Canberra and I will be taking into consideration those matters.  Initially, I must consider the fact that there is a presumption that parental responsibility shall be shared.  I do consider that and will touch upon that at a later stage, particularly as a result of the evidence of Ms O, the family consultant, wherein she varied what her recommendations which were contained in her report dated 14 September 2009.

6. One of the prime concerns in this case, I make it quite clear, that it is possibly the concern, is that the mother is psychologically unwell.  In 2003 she was admitted to hospital for a period of approximately four weeks with a psychotic episode and it was at that stage, and according to the records, diagnosed as a bipolar attack, if I can put it that way.

7. Since that time she has exhibited what I consider to be worsening symptoms of this bipolar disorder, notwithstanding the recommendations by her doctor, Dr R, for whom she has a great deal of regard and respect, she has not done anything to control bipolar.  She has, on one occasion, notwithstanding there were five or so recommendations by Dr R, attended upon a psychiatrist who in fact did prescribe certain controlling bipolar drugs which she took on one occasion and found them too heavy and as a result thereof she ceased taking them, has not sought the assistance of an expert psychiatrist since then and does not take any drugs which are prescribed by a psychiatrist for the control of bipolar.

8. There is evidence before the court by Dr M, which I incorporate in these my reasons for judgment and also in cross-examination in which she indicates that bipolar can be controlled but that it is necessary for her to take drugs which control it and that it is necessary for her to be monitored so that she can in fact have a correct dosage given to her which does not exacerbate any side effects the drugs may have.  She has not done anything, as I have said, to endeavour to lessen the incidents of this unfortunate psychological illness. 

9. It is a dangerous illness insofar as the person who suffers, the patient, suffers extremes of mood swings from euphoric to heavily depressed and may, during either of those swings, exhibit signs of aggressiveness.  She quite clearly, in her evidence before me yesterday, gave classic examples of this variation in mood swings, moving from euphoria to inappropriate laughing, to aggressive objections, to aggressive and semi-aggressive attitude in the witness box, to weeping extensively in the witness box.  It did not do her case one jot of good.  It has not done her case one jot of good that she has seen fit not to seek the assistance of psychiatrists and receive proper and adequate medication. 

10. Where does that take us?  She now says that she wants me to send her to hospital, that she has now recognised that she is suffering from bipolar and it is not helping her or anybody else.  I do not believe that the court should have it put upon itself to direct a fully grown, intelligent mother to go to hospital.  She should take the bit between her teeth and do it herself.  She has not done so for a period of six years, when she was first diagnosed.

    RECORDED  :  NOT TRANSCRIBED

    Some six years, and she is aware, I am sure, notwithstanding she denies this, but her conduct is such that it does not advance the welfare of herself;  it does not advance the welfare, in particular, of the child.

11. How, then, has this lack of control engendered by this illness which can, of course, be controlled, affected her?  It has affected her in her relationship with the father of her child.  It has affected her gravely, in my opinion, with her relationship with the child.

12. The child, up until the beginning of this year, lived, generally, with her and experienced periods of spending time with his father.  The order was made, as I have said, for weekly spending time with and it is the allegation by the mother that she has complied strictly with that up until some three weeks ago and that, according to the evidence of Ms O, she has enjoyed the structure of the week and week-about and she believes that the child has enjoyed it.

13. The child had some difficulties up until last year at schooling, particularly with his speech.  It appears that since the order that was made this year he has improved considerably and that appears to be the case from the reports attached to the evidence of a Mr J.  I am quite impressed with his evidence. 

14. However, one of the big concerns of Mr J’s affidavit is appendix 4, which is the report from the child’s class teacher as to the child’s concerns about going to his mother.  I incorporate the whole of that report in these, my reasons for judgment and refer, should this matter go any further, the appellate court to the evidence of Dr M who, upon my putting to her the contents of that report, in answer to a question directed to her by myself as to whether that concerned her, it did. 

15. Not only do we have those concerns of the child’s, we have the concerns wherein she, herself, concedes that she has struck the child on at least one occasion with a thong.  The stories seem to vary with whom she is speaking to.  On the one hand, she said she hit him because he refused to get in the shower;  he would never take showers and he became smelly.  On the other occasion, she said that she struck him because he got into the shower and turned the hot water up to such an extent that it might have scalded him, and so she struck him because he could have scalded himself. 

16. On another occasion she has struck him with a belt.  We are not quite sure as she was unable to accurately describe what the belt was, but it does not appear to have been a leather belt.  It may have been some plastic or rubber or something of that nature but she struck him.  Once again, she says, because she thinks, not quite sure, that in fact he was refusing to have a shower.

17. This not the conduct that any mother should exhibit to her son of whom, she says, she is much in love and respects intensively.  He is, as they refer to him, a little boy.  He was 6 years of age at that time.  He is now 7.  He, himself, is exhibiting signs of great concern about the mother’s attitude towards him.  Not only does she strike him on at least two occasions, I am satisfied, in all probably more, but she also makes threats to commit suicide, describing explicitly how she will get a hand gun and kill herself.  I refer to the incident of Mother’s Day this year.  This took place in front of the child.

18. She does not have the insight - and I once again refer and incorporate in these my reasons for judgment the evidence of Ms O - she does not have the insight to recognise that that type of thing, taking place in front of a sensitive 6 year old boy who loves his mother, would be counter-productive to the boy’s emotional wellbeing.  She has let him down, in other words.  She has put her own feelings first.  She has not in any way considered the effect of those actions.  Not only the actions of threatening to commit suicide, but the actions of kicking doors, the actions of assaulting the boy, the actions, as he says, of losing her temper and pouring water on him, all this type of thing.  It must be absolute hell for this boy because it is not her that is carrying on like that, it is a person who is affected by bipolar disorder.  It is a highly dangerous one not only to herself but it can be dangerous towards the boy.  Dr M said that.

19. What can we do?  I have to take into consideration many matters.  I have to take into consideration, regrettably, as I have always attempted not to do in 34 years of experience in this court, not to berate one side or the other and indicate what I consider to be their failings because I feel that it is important that people retain some self-respect but that does not appear to be appreciated in other courts and consequently I now have to embark upon the invidious position of indicating that I could not accept what the mother said in any way whatsoever.

20. She moves from one story to another.  She is totally inconsistent.  As I have said, she exhibits signs of almost hysteria on one occasion and another deep depression and this took place in a period of approximately – I do not have the exact time that she was in the box – but about an hour and a half to two hours.  There was a whole gamut of emotions that were paraded before me and I am sure that the whole gamut of those emotions are paraded before the child, a 6 year old little boy.

21. What chance has a 6 year old little boy got of being able to grow up an emotionally mature boy if in fact this enormous pressure is brought to bear upon him and as I said, it is not the mother, it is the sick mother who carries this out.  I can only hope that she may be recognising that she is her own worst enemy because of her illness and she has done nothing about it.  That is my huge concern.

22. I now have to talk about the relevant factors.  Insofar as joint parental responsibility is concerned there is a presumption.  I take into consideration that presumption.  I make it quite clear that the over-riding concern of the legislation in relation to this Act is the welfare of the child.

23. Can I, in any way, say and believe that the mother and the father would be able to jointly get together in those matters which are set out in the relevant section in relation to parental responsibility?  Can I believe that there would be a joinder of minds?  Can I believe that there would be a joinder of putting the welfare of the child first?  No, I cannot.

24. Ms O was originally of the view that there should be joint parental responsibility but after consideration in the witness box, she was of the view that because of the lack of insight – this was the thing that concerned her more than anything – the lack of insight on the part of the mother, that she could not support that view any more and I must confess that I am of the same view.  I cannot see how that would advance the welfare of the child whatsoever.  Consequently the presumption is rebutted.

    I therefore looked at the matters which are important and that is the necessity of the benefit of the child having a meaningful relationship with both of his parents.  How can he possibly have, at this stage, a meaningful relationship with his mother who has carried on the way she has?  It is not really her, as I have said, it is the sick mother who has carried on the way she has.  How can I possibly consider that there will be a meaningful relationship when the mother herself says that if in fact I order, as is recommended, that there be supervised spending time with the child, she will not partake in it?  That, in itself, is cruel in the extreme and Ms O said if that is the case, that is cruel because the boy loves his mother, wants to have a relationship with her but her conduct precludes him from having that and if, in fact, she thinks that she is going to protect herself from hurt, she must consider that it is more important to protect the boy from hurt than herself. 

25. If she desires not to go and see the boy for periods at a contact centre if I order that, that is a matter for her.  It is not the racist suggestion which she put before the court that this is a stolen generation.  She is of Aboriginal extraction – I have to consider that too, as well – as is the father.  She, perhaps, has more contact with the Aboriginal side of her culture than the father has, who indicates that he has not any connection at all but will – he did say this – if necessary, enable the child to partake in Aboriginal activities and be encouraged to consider the Aboriginal culture.  I think that that is sufficient for me to say, other than the mother herself has not pushed the Aboriginality to any extent.  Ms O indicated that at one stage she raised it and dropped it and did not raise it again.  It was virtually not raised in this court except by myself when I asked her the name of her tribe and her tribe totem which she was able to give me, coming from the central Queensland area, she said her tribe is.

26. Notwithstanding the fact that the child is an Aboriginal child, I consider that the mother has not evidenced to me a degree of relationship that could really have a connection with the Aboriginal culture that would cause me any concern.

27. Is the order I am going to make needed to protect the child from physical or psychological harm?  I am quite satisfied, as I have already said and I do not wish to make it even more obvious, I hope that I have done before, that in fact this child is subject to psychological harm.  I am not saying physical, except of course that there is evidence of his being physically assaulted by his mother.  There is evidence from the mother, which I accept, quite clearly that her conduct is such that this is psychological harm to the child.

28. I use as an example the threat to commit suicide in the present of the child on Mother’s Day.  He was brought over by his father for the purposes of his mother spending time with her only son.  She has a daughter who is aged approximately 20, from another relationship.  She said in cross-examination she had not had anything prepared, had a breakdown or something of that nature and threatened to commit suicide.  That would have caused the child enormous emotional distress.  He is subject to suffering psychological harm if he continued in the possession of his mother.

29. Notwithstanding the mother said that there was strict compliance up until, say, three weeks ago with the order of this court, that in fact I am satisfied she did not.  I am satisfied that she was irregular in coming to see the child, as has been set out by the father.

30. I am mindful, of course, that there are many factors under section 60CC which I have to consider, but I am also of the view that if in fact I have emphasised those matters which concern me particularly, that I need not go through each on of them seriatim.  I have, in fact, considered section 60CC(2)(a) and section 60CC(2)(b).

31. I have touched upon the relationship between the child with each of his parents.  He loves both of his parents.  He is concerned about his relationship with his mother and in particular I refer, once again, to annexure 4 to the affidavit of Mr J.

32. The background and lifestyle of the mother tends to concern me.  There is evidence before me, emphasised by the independent children's lawyer, that she does have a tendency to consume excessive amounts of alcoholic liquor.  She was surprised that any comment may be made that in or about October last year, she was charged with driving under the influence when she was 0.11 and she indicated to the court that she was surprised that she was 0.11 since she had has 12 hours’ sleep before driving off in the car.  If that is the case, history realises that the body excretes about 0.02 per hour - as a result thereof, when she went to sleep some 12 hours before, she would have probably been well in excess of 0.3, which is an enormous blood alcohol content for a woman of the mother’s age, condition and also for a person who suffers from bipolar disorder.  I am concerned about that and I do not consider that her lifestyle would be advancing to the welfare of the child.

33. So far as the capacity of each of the children’s parents to provide for the needs of the child including emotional and intellectual needs, I am satisfied that the father has done his best at school and I once again refer to and incorporate the reports attached to the affidavit of Mr J who indicates that the child has made a remarkable improvement in his attitude towards school. 

34. There has been family violence.  I have touched upon that but I do not wish to touch upon it any further. I have touched upon the question of his Aboriginality.  Insofar as considering the extent to which each of the parents has fulfilled or failed to fulfil his or her responsibilities as a parent, I have already touched upon that.  In fact, I have not touched upon it, I have berated it, that I fear as though the mother, as a result of her illness, and I emphasise that, has failed in those duties and responsibilities.

1. What, then, can we do?  She has conceded that she should get help.  Now, as I have said, she wanted me to put her in hospital.  It is not hospital.  She has to take the bit between the teeth and go and see those doctors which have been recommended by the doctor that she has a great deal of respect for and get onto drugs to assist herself.  Until such time as she does that, I have no other option open to me than that the child must be protected from these mood swings of the mother and consequently, taking into consideration the fact that the boy has a lot of love for his mother and that it should not be cut off, I regret that I have to order that such spending time with will be supervised at a contact centre and that such contact will take place once every fortnight at the contact centre.

2. Now, insofar as other matters are concerned, there is the question which has been raised by Ms O in relation to there being ongoing treatment of the mother and ongoing reporting.  I, myself, thought that that was a very interesting suggestion by Ms O – see paragraph 49 – where she says that it is suggested unsupervised visits do not occur unless the mother is managing her bipolar.  And then she goes on to say, later down in the self-same paragraph:

   Further, it is recommended that a suitably qualified medical health professional be responsible for making the assessment of [the mother’s] mental status.

3. And in par 50 she refers to there being, in effect, a report each six months from the family consultant.  This was opposed by the independent children's lawyer who says, in effect, that there must be a cessation of this, that the mother must realise that if she does not do what she should do in relation to her bipolar, that the supervised spending time with will continue for a period – I am mindful of the criticisms of lengthy periods by the Court of Appeal with which I quite readily concur. 

4. But I do feel as though the mother has shown a total lack of respect for herself and for the child by not doing anything about this and consequently I cannot place a sunset clause on the supervision until such time as I am satisfied that she has improved.  Consequently, I will be ordering that a suitably qualified mental health professional be appointed as a mental health case worker to make an assessment of the mother’s mental status.

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

Associate: 

Date:  26 November 2009