Partos and Merritt

[2009] FamCA 238

FAMILY COURT OF AUSTRALIA

PARTOS & MERRITT [2009] FamCA 238

FAMILY LAW – CHILDREN – With whom a child spends time – Enmeshment with child – Separation anxiety

Family Law Act 1975 (Cth)

Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Partos

RESPONDENT: Ms Merritt

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon Solicitors

FILE NUMBER: BRC 1985 of 2007

DATE DELIVERED: 16 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 March 2009

REPRESENTATION

APPLICANT: Appears on his own behalf

RESPONDENT: Appears on her own behalf

INDEPENDENT CHILDREN'S LAWYER:

Mr Shaw, Solicitor

Christine Vachon Solicitors

Orders

IT IS ORDERED THAT

1. The hearing of the Contravention Application filed by the father on 10 March 2009 be adjourned before Justice Bell to the further hearing of the matter listed at 10.00am on 8 May 2009 in the Brisbane Registry of the Family Court of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. All communication occur through the communication book, as previously provided in the orders of Justice Bell made on 3 November 2008.

2. The father desist from contacting J Organisation save via normal court process, including in particular, a subpoena directed to that Organisation for obtaining documents relating to the child … born … May 2006 (“the child”).

3. Both the father and the mother desist from entering the other’s property.

4. For the purposes of paragraph 3(b) of the orders made by Justice Bell on 3 November 2008, such time commence at 9.00am on Saturday 21 March 2009, and otherwise continue at the times, on the days and in the sequence provided for in those orders.

IT IS FURTHER ORDERED THAT

1. The father be granted leave to issue subpoena to J Organisation to obtain all such documents held by that Organisation relating to the child and in respect of such subpoena:

   a.that all parties be granted leave to inspect such documents;

   b.that the Independent Children's Lawyer only be granted leave to copy all such documents as considered appropriate.

2. 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1985 of 2007

MR PARTOS

Applicant

And

MS MERRITT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 3 November 2008, Bell J delivered reasons for judgment in respect of a parenting dispute concerning living arrangements for the child, a son who was born in May 2006. 

2. Although the child is not yet three years of age, his life has already been attended by almost constant disputes about his co-parenting arrangements and there is already a relatively lengthy history of litigation about him.

3. As an instance of that, the proceedings before Bell J included a report from Mr P, who is a family consultant attached to the Family Court at Brisbane.  Mr P prepared, pursuant to this Court’s child responsive programme, a family and parents’ issues assessment report dated May 2008 and flagged in that report a number of issues.  Subsequently, Mr P prepared a family report dated 26 June 2008.  He has had, then, an association with this family for nearly 12 months. 

4. In the proceedings before Bell J, there was also a report from Dr H who is a psychiatrist.  Dr H’s report was prepared on the basis of interviews with each of the parents and the examination of collateral information and documents, including a report of Dr R recorded at page 14 of Dr H’s report, as a “treating psychiatrist for [the mother]”. 

5. About that, Dr H says:

   “I noted that (Dr [R]) was clear the report was written at short notice and was not a comprehensive report on the patient or her son.  I noted he was concerned that the patient felt that some of her anxiety symptoms might be affecting her son’s adjustment.  He then repeated the allegations that mirrored the allegations she had made at other places.  He then noted that she had a past history of childhood sexual abuse, anxiety and depression and sexual assault in the workplace.  He noted that two independent psychiatrists in 1994 and 1995 had diagnosed her as suffering from Post Traumatic Stress Disorder.  He reported that she had been well for the past 10 years until recently when she had a recurrence of her post traumatic and anxiety symptoms within the context of conflict over the access issues.  I noted that he identified the child’s sensitivity to the mother’s mental state.  I noted he was entirely reliant on the mother’s information with regard to his comments about the father.  I note his belief that the mother’s anxiety would improve if there was no contact between her and the father at changeover and that supervised contact proved to the mother that the father was a safe and competent parent.  I noted that he was continuing to see her on an ongoing basis for the management of her mental health issues.”

6. Independently of that assessment by a psychiatrist who had had contact with the mother over a lengthy period of time (although not for the whole of that time), Dr H gave his own opinion and provided his own diagnosis.  It is important in the context of this application to cite that opinion in the report at some length.  First, Dr H said:

   “[The mother] had clearly in the past met diagnostic criteria for Post Traumatic Stress Disorder.  It was not entirely clear whether she still met this criteria as she did not disclose suffering from significant re-experiencing phenomena at the time of review...She has certainly suffered from a significant degree of anxiety and it would be appropriate to give her a diagnosis of Adjustment Disorder with Anxiety at a minimum.”

7. Dr H then went on to consider her personality and concluded:

   “It was not clear whether she met full criteria for personality disorder although she certainly had mixed personality traits of some significance that, in combination with her anxiety, caused some level of dysfunction.”

8. Dr H then went on to provide an opinion which I consider to be extremely important in the context of the current application:

   “There was some concerns about her posing a risk to her child’s physical and emotional wellbeing as a result of her degree of enmeshment with the child and there were significant doubts about her ability to support [the child] having a relationship with his father despite her intellectual acknowledgement of the necessity for this for the child’s optimal development.”

9. It can be seen then, that as early as October 2007, when Dr H prepared his report, that the doctor was significantly concerned about whether the mother’s anxiety would pose a risk to the child resulting from, in Dr H’s opinion, her degree of enmeshment with the child.  Dr H went on to say in that report:

   “This process of increased access with the father may well cause significant psychological distress to the mother, however, it would be critical that she continue in appropriate psychiatric therapy in support of Dr [R] to assist her in coping with this.”

10. Dr H then goes on to say something, which again, I consider to be particularly important:

    “Should her level of distress become more severe, then one would need to consider the effect that this might have on the child and what arrangements might be put in place to buffer the child from exposure to her level of distress.”

11. Those opinions provided by Dr H are important both because of events that are said by each of the parents to have transpired consequent to the orders made by Bell J and also because Bell J, consider all those opinions important in the context of making his decision after a trial and because of what the Full Court had to say recently about the “Rule” in Rice & Asplund. 

12. Initially, the father filed an application for contravention.  At the same time, he filed an Application in a Case together with supporting documentation in respect of each. 

13. The father made it clear, at the outset of the application before me, that the thrust of this application, brought by him on an urgent basis was to ensure that he saw his child in circumstances where, as he alleges and as Bell J alluded to, there had been very significant difficulties associated with him spending significant time with the child, essentially since the child’s birth.

14. With that in mind, the father agreed to the application for contravention being adjourned to the proceedings before Bell J on 8 May and sought to proceed with what was, in essence, an application seeking an order that he spend time with the child as ordered by Bell J. 

15. The application just referred to was served only last Friday on the mother.  The mother indicated that she had prepared some material but that, her affidavit in particular, was not in a state that she would be perfectly content relying upon it.

16. Bearing in mind the important issues for the child in this case, I determined, consistent with the provisions of division 12A of the Act, to do two things:  first, to allow the mother to give such oral evidence as she desired with respect to the father’s amended application and, secondly, to request Mr P to also provide oral evidence before me this morning. 

17. That latter course was taken particularly in light of the fact that Bell J had ordered, in effect although not in terms, that the time between the father and the child be the subject of an order made pursuant to s 65L of the Act and specifically that Mr P compile a report pursuant to that section prior to the further return date of this matter before Bell J on 8 May.  In addition, Bell J ordered, at par 3(b) of his Honour’s orders, that overnight time between the child and his father commence after and “be conditional upon the father completing an attachment based parenting programme”. 

18. Evidence was received today from the Independent Children’s Lawyer that there were difficulties in accessing outside agencies that provide such a course and, in the event, Mr P, who had some earlier experience in those courses conducted a process that would fit the description in his Honour’s order.

19. On 20 February 2009, as exhibit ICL1 indicates, the Independent Children’s Lawyer wrote to the mother confirming that “[the father] has completed the attachment based parenting programme with him”.  That letter goes on to say “Accordingly, we can see no impediment to the overnight arrangements commencing this weekend in accordance with the orders”. 

20. The mother says that she did not receive that communication prior to the scheduled time for the following day.  It is not necessary to examine the ins and outs of that particular assertion (or any counter-assertion); it seems that, in the event, overnight time occurred on that weekend in accordance with the orders.  However, overnight time did not occur on the following weekend upon which it was due, mainly the weekend of 7 March 2009 and has not occurred since. 

21. The mother makes no bones about the fact that time has not taken place in accordance with the orders. 

22. First, she says that the father has not undertaken therapy which Bell J indicated he ought undertake.  That assertion was the subject of discussion during the course of the proceedings today.  It is plain, both from the evidence of Mr P and from the terms of his Honour’s order itself, that the only requirement upon the father prior to commencement of overnight time was the commencement of the attachment programme to which I have earlier made reference. 

23. In my judgment, there is no foundation to the implicit assertion by the mother that overnight time was only to commence after a process of “therapy” as referred to in par 47 of his Honour’s Reasons for Judgment. 

24. That issue aside, the mother asserts a number of things have occurred with respect to the child since he has been seeing his father.  She says, in broad terms, that he has returned from time with his father “completely traumatised”.  She says that the child “makes himself vomit” before time with his father, that he “has to be prised off her” by those effecting changeover, that he is “scared” of his father and has expressed fear of his father, that he had a “toe nail torn off” and there was no explanation provided for that by his father and that he has said to his mother that the father “hurts him”.

25. The mother said in her evidence that a worker at the contact changeover centre, called T, described the behaviour to which the mother refers as “normal separation anxiety” but that Dr R, who the mother apparently continues to see, has described it as “situational anxiety”.  The difference between the two terms was not made clear but the mother is at pains to point out that Dr R, if he were a witness in these current proceedings, would give evidence to the effect that it is not beneficial for the child to see his father. 

26. The mother makes a number of other assertions with respect to the father.  She alleges that there was a break-in at her house and that the toilet roll was turned around in a way consistent with the manner in which the father did it during her brief relationship with him.  In effect, she says that, while she cannot prove it, and whilst the police were unable to obtain appropriately usable finger prints, she suspects the father has broken into her home.  She alleges that the father has threatened and intimidated staff at the J Organisation Day Care Centre where the child attends.

27. The issues raised by the mother can be seen to be, as she herself admitted in the witness box, entirely consistent with the allegations raised by her in the trial before Bell J.  Bell J’s Reasons for Judgment indicate that, central to his Honour’s decision, were allegations and assertions by the mother about conduct perpetrated on the child by the father.  Those issues were dealt with by his Honour in those Reasons for Judgment. 

28. As importantly, issues flagged both by Dr H to which I have referred, and by Mr P in the family report to which I have also referred, were also dealt with in some considerable depth by his Honour.

29. His Honour found that the report of Mr P had “cogently, thoughtfully, and comprehensively” dealt with those issues and, in very broad terms, accepted the recommendations and assessment of Mr P in that respect. 

30. In a paragraph of the report that might be thought to have some prescience given the events which have occurred subsequently, Mr P said this: 

    “[The father] near the end of the interviews made a statement that I thought reflected an appreciation for what the outlook might be for [the child].  Unfortunately, it was a sentiment that was largely absent otherwise.  He said: “I think Court ordered contact will be good but I do not think it will fix the underlying problems.  I worry the orders will mean I see [the child] but [the mother] and I will go on having this totally separate arrangement and [the child] will grow up seeing this.”

31. I should add that I, too, based, albeit, on the limited evidence to which I have been exposed in these proceedings today, share the same fear for this, yet, tiny child.

32. Mr P concluded, at par 76 of the report: 

    “I find there to be insufficient reason to think that [the child] is at risk of harm whilst in the care of his father.  I do not believe that [the father] would consciously and deliberately harm [the child] as a way of aggravating [the mother].  If this was the only question in hand, then I would without hesitation recommend the father not be required to continue to see [the child] under supervised conditions.  The truth is, however, there are, in my opinion, a number of other factors in this matter that one way or another impact on the prognosis of this case.”

33. Mr P then went on to consider the mother’s past psychiatric and emotional issues, namely the anxiety to which I have earlier made reference in these reasons.  In that latter respect, Mr P concludes: 

    “The second factor concerns [the mother’s] very high levels of anxiety and distress in respect of her apprehension of [the child] being in his father’s care.  Whilst I conclude this is not entirely irrational, I think it is more the manifestation of her own relational experiences with [the father] and his disproportionate to the actual level of risk [the father] poses to [the child].  Either way, her state of mind in this matter is of central importance.  Empirical data suggests that in cases where the children live with the mother and have a primary attachment with her, the mother’s level of satisfaction and assurance that the children are safe with the father is a significant measure of the likelihood that the visit regime will go smoothly and also of the children’s sense of connectedness with both parents.”

34. I accept, and respectfully agree with, that evidence.  I note that in broad terms, that evidence was accepted by Bell J in the Reasons for Judgment earlier referred to. 

35. In his evidence in the witness box today, Mr P expressed extreme concern about the behaviours of the child described by the mother.  Mr P said that there were concerning themes emerging from that evidence and there was a “pervasive” theme of self induced behaviour on the part of this tiny child.  For example, the mother referred to “the child making himself vomit” and that he “works himself into a state of aggression”.

36. Mr P was of the view that there was an “extraordinary attribution” by the mother of matters said to be either thought by, or expressed by, a child who is not yet three. 

37. An example of that is the fact that, although the child is of this age, the mother has provided him with a mobile phone so that he might phone her (or indeed, according to her, phone the father) should there be matters concerning him in either situation.  I repeat: this child is not yet three. 

38. Mr P said that another pervasive theme inferred from the list of symptoms said to occur in the child only by reference to time with his father is that he had a profound concern that the mother was “keeping [the child] in a state of dependency”.  This, it might be seen, is closely aligned to the concerns expressed by Dr H about the nature and extent of the enmeshed relationship between the mother and the child.

39. These matters are addressed in the context of these proceedings because, as the Full Court made clear recently in the decision of Miller & Harrington [2008] FamCAFC 150: (2008) FLC 93-383, the so-called rule in Rice & Asplund, when applied in a case of this type, must, by reasons of the changes made to the Family Law Act by the Reform Act take account of the best interests of the child, the subject of any such application. It is partly for this reason, and partly also because of the mandatory requirements upon the Court outlined in the Principles in Div 12A, that I determined to conduct the proceedings in the way that I did and to receive further evidence about the child.

40. In broad terms, it seems to me that, each and all of the matters raised by the mother (indeed the mother effectively admits as much), are precisely the same sorts of matters that were raised, and extensively examined, in the three-day trial before Bell J only some three or four months ago. 

41. I am acutely aware of the fact that the mother says that the nature and extent of those issues has increased and that is of itself a change.  I am not convinced of that, primarily because precisely the prospect of that occurring was in the mind of each of Dr H and Mr P at the time that they prepared their respective reports and certainly - inferentially, at least - in the mind of his Honour when his Honour delivered judgment in November of last year.

1. Secondly, I am acutely aware of the mandatory requirements contained in the Act to bring proceedings for a child to an end as soon as possible and to expose a child to as few Court proceedings as is possible.  I am also aware of what the Full Court said in the decision of Miller& Harrington and the decisions which preceded it in respect of those issues.  I am not at all convinced that, in this case, there has been a change of circumstances demonstrated by the mother such that the child’s best interests require a change to the orders that Bell J made after a trial in November last year.

2. Accordingly, in terms of the substantive part of the application, I am not persuaded that the order for time between the children and their father should be changed.

3. The mother, by response which she was given leave to read and file today, sought a number of other orders which it is necessary to deal with only briefly, given that many of the matters were effectively dealt with in argument during the course of the hearing. 

4. The mother seeks an order at par 3 that the father immediately be ordered to desist from all physical and psychological abuse of the child.  I do not propose to make that order.  The father denies, and has always denied, any physical or psychological abuse of the child and the facts necessary to demonstrate that he has engaged in any of those behaviours are beyond the scope of this interim hearing and there is no evidence before me from which I could be satisfied, on an interim basis pending the matter coming back before Bell J on 8 May, that I should make findings that abuse has occurred.

5. Next, the mother seeks an order that the father be ordered to attend therapy as per par 47 of Bell J’s reasons.  Correspondence admitted in these proceedings as Exhibit A makes it clear that therapy provided no part of the precondition for overnight time to occur in his Honour’s reasons.  That being the case, it seems to me that any broader issue of the father receiving therapy should be left to His Honour on 8 May.

6. Next, the mother seeks that the father be ordered to contact, and attend at, what she calls in the response, “the child’s developmental child psychiatrist” Dr R. 

7. As indicated earlier in the report from Dr H, Dr H was certainly of the view that Dr R was the mother’s psychiatrist.  Questioning of the mother by me indicated that, in fact, he was the mother’s psychiatrist, that she had seen him as a patient for some time some years ago and that she commenced seeing Dr R again when the child was about seven months old.  I cannot see how the child was a patient of Dr R (who is, apparently, a child psychiatrist) when a child was seven months old but it seems that the mother asserts that at the time – or, perhaps, subsequently - the child became Dr R’s patient.

8. In either event, it seems that, according to the father’s evidence, he has made some contact with Dr R.  Dr R is alleged by the father to have “perjured himself” in earlier proceedings.  I gather he means the proceedings before Bell J.  Obviously, that is, of itself, not an issue for today, but it seems that not only is Dr R a doctor who has had a significant ongoing relationship with the mother and, more recently, the child but that he might also be a “credit witness” in any further proceedings before Bell J. 

9. Accordingly, I do not intend to make the order sought by the mother.

10. The next order sought is that the father be directed not to contact the respondent mother by any means other than previously ordered by the Court through the communication book or, emergencies, by SMS.  The father says the communication book does not work effectively.  The mother makes other allegations.

11. In the approximate seven weeks between now and when the matter comes back before Bell J it seems to me necessary to simply order that the communication book be used.

12. Next, an order is sought that “the father be ordered to desist from contacting, threatening and intimidating any and all the staff associated with the respondent mother’s place of employment”. 

13. This issue has already been referred to.  As has fallen from each of the parties, there are existing factual disputes between the parties about this particular issue that are beyond the scope of these proceedings. 

14. The father indicates that the only reason he might have for contacting J Organisation is to obtain from them documents relevant to the child’s care at the centre. He concedes that, save for obtaining those documents, there is no need for him to contact the organisation in any way. I do not propose to make an order that makes reference to threatening or intimidating any staff because that is a contested factual matter but I will order that the father desist from contacting J Organisation save via normal court process, including in particular, a subpoena directed to that Organisation for obtaining documents relating to the child.

15. Next, the mother seeks an order the father be ordered to desist from entering the mother’s property.  He says he has no reason to go there.  He too seeks an order that the mother not come onto his property.  It seems to me appropriate, given the extraordinary level of conflict between these two parties, that such mutual orders are appropriate.

16. The mother seeks an order that her name be blocked by the Registrar of Titles for future property searches.  That order is incompetent is beyond my jurisdiction.

17. Finally, the father, as part of the application proceeded with today, seeks an order for what might be described as additional time.  Given the extraordinary degree of conflict between these parties and the evidence by the mother of the degree of stress experienced by the child, whatever might be its cause, I do not propose to order additional time pending the proceedings before Bell J on 8 May 2009.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  02 April 2009