Raymond and Choate
[2010] FMCAfam 451
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAYMOND & CHOATE | [2010] FMCAfam 451 |
| FAMILY LAW – Interim parenting – change of residence – mother has not complied with order to attend counselling with the child – Expert evidence is in favour of a change of residence – child to live with father – no contact with mother for three months. |
| Applicant: | MR RAYMOND |
| Respondent: | MS CHOATE |
| File Number: | SYC 2546 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 9 April 2010 |
| Date of Last Submission: | 9 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | DTA Lawyers |
| The Respondent: | Self-represented |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
| Solicitor-Advocate for the Independent Children’s Lawyer: | Ms Power |
ORDERS
The Orders made 12 February 2008 are discharged.
The Child [X] born [in] 2000 live with the Father.
That the Child spend time with the Mother as follows:-
(a)each alternate weekend from 10.00am Saturday until 6.00pm on Sunday;
(b)from 3.00pm on Christmas Eve each year until 11.00am on Christmas Day;
(c)for four (4) hours on the Child’s birthday;
(d)for four (4) hours on the Mother’s birthday.
That the operation of the order referred to in the preceding paragraph be suspended for a period of three (3) months from the date of these orders.
The matter be adjourned to 9 July 2010 at 9.30am for mention.
The parties have liberty to apply on 72 hours notice.
Pursuant to s.67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born [in] 2000 and to return/deliver the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
IT IS NOTED that publication of this judgment under the pseudonym Raymond & Choate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2546 of 2007
| MR RAYMOND |
Applicant
And
| MS CHOATE |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
I provide the following ex tempore reasons in the matter of Raymond and Choate. This is an application in relation to a child, [X], who is
10 years old. The applicant is [X]’s father, and the respondent her mother. The matter has a very long history and the decision is a very difficult one to make.
The father’s proposal today is in accordance with his amended application that was filed on 23 December and, in effect, he seeks that all previous orders be discharged, that he have sole parental responsibility in respect to [X], that [X] live with him and spend time with her mother, but that the contact not occur for a period of three months from the date of these orders. That is the position sought by the father, and it also represents, in effect, the position by the independent children's lawyer. .
The respondent mother, who was representing herself today, proposes that the existing orders continue, save for the substitution of a different psychologist to provide family therapy and that, in effect, the circumstances which she says have prevented her from attending on family therapy be addressed. But for all practical purposes, the mother’s position is that the existing orders continue.
The case raises some quite serious issues about what is in the best interests of [X] and, specifically, whether she is currently exposed to some form of psychological harm whilst in the care of her mother. It also raises issues about the weight to be given to her views, the nature of her relationship with her father and with her mother, and the willingness of the mother to facilitate an ongoing relationship between [X] and the father. And, in particular, on the father’s proposal, supported by the ICL, the impact of change on [X], given that the father proposes, in effect, a reversal of the existing long-standing care arrangements.
There are also issues about the capacity of the parents to provide for [X]’s needs, particularly the capacity of the mother to provide for her needs. This case is being dealt with not on a final basis but on an interim basis, and I’m satisfied that the issues raised warrant the making of an interim decision. But I think it’s very important for both the mother and father to recognise that any decision I make today is a temporary one.
This is not a final hearing. What is in the best interests of [X] today is not necessarily what’s in her best interests in a month’s time, or three months time, or in a year’s time. One must look at the circumstances at that time and make a decision at that particular point in time. So it is important to remember that any decision I make is a temporary one.
I think it’s very important in this case to set out the procedural history, and whilst this is long, nonetheless it is important to record it in these ex tempore reasons.
On my estimation, there have been at least 16 appearances in court since this matter first came before the Federal Magistrates Court. The first occasion was on 30 May 2007, when Mr Trodden appeared for the father, with the father, but there was no appearance on behalf of the mother. The case was adjourned. The next occasion was on 13 July. The father and his solicitor appeared in person and the mother by telephone. The mother was ordered to personally attend court on
16 July and to not leave the precincts of the court until the appearance before Sexton FM, before whom the matter was listed.
When the matter came before the court on 16 July, the parties entered into consent orders that provided for [X] to live with her mother and for contact to take place between [X] and her father as set out in the order in question. The matter next came before the court on
17 September with the parties appearing, and with the mother appearing in person. The parties agreed to some further consent orders in relation to [X] spending time with the father, and an independent children's lawyer was appointed.
When the matter came back before the court on 31 October, the father appeared with his solicitor. There was no appearance by the mother, and the independent children's lawyer appeared. Sexton FM made an order that the mother appear personally on the adjournment date, noting that in the event she did not appear it was open to the court to issue a warrant for her arrest. When the matter came back before the court on 12 December 2007, some further consent orders were made in relation to [X] spending time with her father, particularly over the Christmas, New Year period.
There was a further specific order made on this occasion that the mother facilitate the child’s attendance on the independent children's lawyer no later than 20 December. On 12 February 2008, the matter came back before Sexton FM. Some further orders were made and in this case, on 12 February, the orders appear to be final orders rather than interim orders, and they provide for [X] to live with her mother, for the mother to have sole parental responsibility on a day to day basis and so too for the father, and for [X] to spend time with her father, basically each alternate weekend from 10 am Saturday until 6 pm on Sunday, and on special occasions. That, as I indicated, was on
12 February 2008.
The matter came before me on 8 April 2009, and the context of that was that the father had filed a contravention application in relation to alleged breaches of orders that were made on 12 February 2008. Directions were made about the filing of an amended contravention application, and for the mother to file and serve an application to vary the current orders. An independent children's lawyer was reappointed.
On 17 June, further directions were made about filing the documents that were ordered to be filed on 8 April. On 24 July, the matter was adjourned to a date for a possible hearing. The mother was, again, directed to file and serve any application that she wished to make, specifically, in the context of seeking to vary the existing orders, and the father was likewise invited to do so. Order 5 provided that [X] be brought to court on the next occasion and placed in child care on
level 2.
On 20 August 2009, a family report was ordered, and the court noted the mother’s undertaking to comply with orders and not undermine them, and to stay away from level 2 until notified otherwise by the independent children's lawyer. When the matter came before me on
19 November, there was an order made for the parties to attend in person on 8 December, providing the family report was available. On 11 December, in view of the matters contained in the family report, a direction was made about the appointment of a part 15 expert, and some procedural directions in relation to the further conduct of the matter.
When the matter came before me on 22 December 2009, I made orders appointing Dr Milch as a part 15 expert, and when the matter came before me on 25 February 2010 which was the date that had been set down for the hearing of this matter, I note on this occasion, the father and mother were both represented by counsel and Mr Wong appeared for the independent children's lawyer. The parties agreed on an interim basis that there be equal shared parental responsibility, that [X] live with her mother, that the parties do all things necessary to attend upon Ms B, a clinical psychologist in [address omitted], basically, for the purposes of implementing recommendations contained in Dr Milch’s report.
The order in question about attendance on Ms B is quite prescriptive:
a)That the child live with mother.
b)That the Mother and the Father do all acts and things necessary to attend upon Ms. Ms B ("Ms. B"), Clinical Psychologist, [address omitted], Sydney for the purpose of her providing family therapy ("the Therapy") and continue to attend as recommended by Ms. B and ensure that [X] attends appointments with Ms. B as recommended by her.
c)
That the Mother and Father attend upon the office of Ms. B on
10 March 2010 at 9 am for an initial consultation with her.
d)That the Mother and Father attend upon the office of Ms. B and cause the child to so attend on 11 March 2010 as follows:
i)at 9 am for a consultation between Ms. B and the Child;
ii)at 10 am for a joint-consultation between Ms. B, the Child, the Mother and the Father.
e)That leave be granted to the Independent Children’s Lawyer to provide to Ms. B the following documents:
i)a copy of the Family Report, prepared by Kalli Tsiotsioras and dated 7 February, 2009;
ii)a copy of Dr. Milch’s Report dated 10 February, 2010;
iii)a copy, if necessary, of the affidavits and application/responses filed in these proceedings;
iv)copies of subpoenaed material.
There was also an agreement about spending time with the father, the funding of the appointments with Ms B, and a number of other incidental orders.
On 8 April, I made an order in chambers pursuant to a request by the independent children's lawyer to relist. Such liberty was granted in the orders of 25 February. On 8 April I made an order listing the matter before me this morning for a possible interim hearing, and also made an order that the mother is to bring the child to the child care facility on level 2 by no later than 9.30 am on 9 April.
I’m not sure that the history that I have recited, in fact, captures all of the attendances before the court, but I suspect it’s the more significant ones. Reflecting on that procedural history, it evidences a particular pattern of the father seeking time with [X] with agreements being reached, with agreements breaking down, with contravention applications being filed, with further agreements being reached, with the agreements breaking down.
The history of the matter, unfortunately, is one where whatever agreements have been made by the parents have simply not been implemented in such a way as to prevent the matter coming back before the court. I note that, on a number of occasions, an order was made for [X] to attend on the court on the relevant day.
Now, just pausing at this point, I just want to deal with the order that was made on 8 April, that is yesterday, for [X] to be brought to court. The mother has asserted that she was not aware that it was necessary for [X] to be brought to court today, though she acknowledges that she knew that she certainly had to be here today. Her former solicitor,
Mr Tyce gave evidence this morning by telephone and he, on oath, has indicated that sometime after lunch yesterday, he had two conversations with the mother, and during the first conversation advised her of the necessity to bring [X] to court today.
There’s obviously a factual issue here with the mother saying she didn’t know and Mr Tyce saying that he informed her. Mr Tyce is an officer of the court who gave evidence on oath, and, under the circumstances, it is hard not to accept what he says, particularly in the context of his assertions that there is a file note and that his communication was actually corroborated by his administrative assistant.
I recognise in these extempore reasons that there are issues about client privilege and waiver, but I’m satisfied that the issues in question are not covered by privilege, and, in any event, even if they were, that the circumstances of this case are such that it would be in the best interests of the child for the evidence to be given.
Under the circumstances, I make a finding that the mother was aware of the fact that she had to bring [X] to court today but for some reason did not. In any event, that’s just one matter incidental in the course of an otherwise difficult case.
Even though these are interim proceedings, there’s an abundance of expert evidence that is available to the court. The first piece of expert evidence is a report that was prepared by a family consultant, Kalli Tsiotsioras in December 2009, and I incorporate into these extempore reasons a number of provisions from her report, and, particularly, paragraphs 44 onwards. Ms Siasorus - I hope that’s right - had the opportunity, of course, to observe the mother and father and the child in the usual context for a family report.
At paragraph 44 in her evaluation she makes this comment:
Mr Raymond’s relationship with [X] appears to have been discouraged by Ms Choate from approximately the time that [X] began primary school. This appears to have coincided with her realisation that the relationship with Mr Raymond was truly over. The commencement of Mr Raymond’s relationship with Ms R appears to be the point of significant further deterioration in the parental relationship and Mr Raymond’s relationship with [X].
At paragraph 45 she notes that:
Mr Raymond presented as a child focused parent who has an awareness of the impact of the conflict on [X].
At paragraphs 46 to 48 the family consultant presents a number of observations about the mother. At paragraph 46, for example, she notes that the mother did not demonstrate an understanding of [X]’s needs as separate from her own:
She views [X] as an extension of herself and spoke about herself and [X] as a collective unit. She seeks to sabotage [X]’s relationship with her father and appears unaware that in the process, she is emotionally damaging her.
I just want to add my own observation there. I’ve had the benefit of quite extensive interaction with Ms Choate in court. I must say I agree that I don’t think that the mother is aware of how her own actions are emotionally damaging her. This is not a case where the mother is acting maliciously or doing anything intentionally to harm her daughter. I think, with respect to the family consultant she has hit the nail right on the head here that the mother is unaware that she is emotionally damaging her daughter.
She goes on to talk about the mother’s intense hostility and feelings of abandonment in relation to Mr Raymond, and that the mother’s behaviour was observed to be impulsive, enraged, distressing for [X], and uncontainable in her presence. She says at paragraph 48:
Ms Choate’s behaviour during the interview process and pattern of behaviour described suggest that Ms Choate’s problems with interpersonal relationships are characterological. If this pattern of behaviour continues in the presence of [X], it will lead to further distress and long-term mental health concerns for her.
At paragraph 50 there are some observations about [X] herself. The family consultant states that:
[X] presented as emotionally labile and pseudo mature.
She waivered between visible distress in the presence of her mother and emotional constriction when interviewed by the family consultant:
She responded to her mother’s explosive behaviour in an adaptive manner to appease her. Her, at times, motionless and fearful presentation is suggestive of a child whose experience of safety and stability has been compromised.
At paragraph 51 she says:
[X] and her mother have an enmeshed relationship. [X] is used to emotionally supporting her mother and has become a peer to her.
There are a number of other relevant provisions at paragraph 53 and 55 onwards. She, in particular, notes the need for professional support to deal with the family, that the mother would benefit from a psychiatric assessment and ongoing psychological assistance. She acknowledged the father’s concerns about [X]’s welfare in the mother’s household, which are actually articulated at paragraph 56. The family consultant states the advantages and disadvantages of [X] living with her father and living with her mother. At paragraph 58 she says:
[X] is only nine years old -
as she was at the time:
If she remains living where she is and Ms Choate does not engage in appropriate therapy, [X] will be living with a disturbed parent for the balance of her formative years.
The family consultant is not optimistic about Ms Choate’s capacity to respond to psychological intervention, given that her issues appear to be characterological in nature. The report of the family consultant precipitated engaging Dr Anthony Milch as the Part 15 expert. His report is dated 10 February 2010, and I think the relevant parts commence at paragraph 102. At paragraph 103 he states that in his opinion:
[X] has developed an enmeshed relationship with her mother, with whom she closely identified, and became estranged from her father.
At paragraph 104 he refers to the mother’s personality vulnerabilities. He says:
Her response to her circumstances was immature. It was evident that she had failed to consider the profound impact that her behaviour over time has had upon her daughter, whom she no doubt loves greatly.
It was of concern that [X] had become her mother’s primary emotional support. Her exposure to such circumstances had impeded her emotional development. At paragraph 105 he refers to the mother’s longstanding history of vulnerability to depressive symptoms. He notes that it was evidenced that there was a significant personality component to her mood disorder. At paragraph 106 he noted the contrast with the father, who presented in a concerned and balanced manner.
Mr Milch did not find evidence of any significant impairment in his mental state or parenting capacity. He highlighted his attendance to [X]’s emotional and developmental needs. This was in contrast to the mother’s immature focus on the importance of the mother-daughter relationship.
At paragraph 107 he makes some important observations about the views that [X] has expressed. He says that although [X] was consistent in her wishes that she continue to reside with her mother and have no current contact with her father, caution should be used in considering this view. There was no doubt that [X]’s wishes reflected her mother’s immature response to her circumstances and were driven by her powerful emotional bond with her mother. At paragraph 108 he makes the statement that there is a clear indication for intensive family therapy intervention.
At paragraph 109 he says, perhaps presciently:
Should the mother be unable to hold to this commitment, as predicted by the father, and should she be unable or unwilling to facilitate [X]’s regular contact with her father in the future, then this will be an indication for the implementation of the order sought by the father.
He goes on to say that should the intervention -that is the intervention of intensive therapy - fail, it would be his recommendation that a change in residence be strongly considered by the court. He says:
I would agree with the analysis explored by the family consultant.
He states that therapeutic intervention is critical to [X]’s emotional development. He recommends such an intervention, should it be held by the court that [X] remain in her mother’s care or should a change in primary residence be ordered. Dr Milch provides an updating report that’s dated 7 April 2010. This was released to the parties this morning. He indicates that he has had the opportunity to review the progress of family therapy conducted by Ms B.
In his report he sets out his communication with Ms B. He says:
Ms B reported that a total of four sessions had been held with [X] and her parents, both separately and together. The mother’s resistance to therapeutic intervention was significant from the outset. Finally, on 31 March 2010 she cancelled all future appointments for [X], having previously refused to attend together with the father. It was evident that the mother was unable to comply with the court orders to attend therapy, and refused to support [X]’s therapeutic intervention or engagement with her father.
Dr Milch states that the failure of the family therapy intervention was unfortunately consistent with the previously identified vulnerabilities experienced by the mother. He lists these at the bottom paragraph of the first page of his report, and going on to the first paragraph of the next page.
The failure of the family therapy intervention was unfortunately consistent with the previously identified vulnerabilities experienced by the mother. This included her difficulties in prioritising [X]’s developmental needs. She simply is unable to view [X] as having separate needs from herself. Under these circumstances she should be viewed as having a significant impairment of her parenting capacity. This was consistent with concerns identified by myself and the family consultant, with regard to her ability to provide appropriate care for [X]’s future. Instead, [X] has been parentified and carries the burden of her mother’s psychological impairment. This is exacerbated by the mother’s refusal to allow [X] to engage with other adults who are not on her side. This includes the father and members of the maternal extended family. Importantly, [X] was observed to have engaged well in therapy and in this context was willing to have contact with her father. This of course was a threatening situation for her mother who was unable to sustain this intervention. This was the case even though she had clear guidance from the Court that this was a necessary component of her maintaining her daughter’s residence.
He recommended that the matter be reheard by the court as soon as possible, that both parents and [X] attended court, that arrangements be made for the transfer of [X]’s care from her mother to the father at court, that [X]’s contact with her mother subsequently be limited and supervised. He says, at point 5:
It is important for the court ordered family therapy intervention being conducted by Ms B to be continued. A change of therapist under the current circumstances is likely to impede the effectiveness of this intervention. In addition, it will expose [X] to unwarranted change of therapist, which will be disruptive to her ability to form and maintain a therapeutic alliance.
His last recommendation is this: that arrangements be made to provide psychological support for the mother, as such events are highly likely to result in a substantive destabilisation of her mental state. It is with this background that the matter comes before the court today. The applicant father and the independent children's lawyer propose that they have tried everything without success, and that the mother has failed to adhere to that which was clearly agreed to in the consent orders that provided for them to go to family therapy.
The evidence certainly does satisfy me, including the mother’s own submissions to me, that she discontinued the therapy at some time on or about 31 March. That was certainly communicated to the independent children's lawyer by way of a letter date 31 March 2010. The mother, in her submissions, explained that the reasons for failing to attend the therapy were, principally, financial ones. She says that she cannot afford the $52 which is her share of the total cost of the therapy.
She says that she cannot afford the cost of parking for attending the therapy, and she explains that she is unable to use public transport for medical reasons. Indeed, she provides me with a letter from her doctor that is dated 8 April, which states that the mother suffers from motion sickness which is precipitated by travelling in a bus. However, she is quite medically fit and capable, to safely drive her own vehicle, as different neural, vestibular, and optical pathways are involved.
The mother, in effect, pleads with the court to be given another opportunity to make the orders work, and she says that she will encourage the relationship between [X] and her father, and has provided assurances that [X] will spend time with her father tomorrow in accordance with an existing arrangement. However, she is quite categorical in saying that she won’t go back to Ms B for the reasons that she’s stated, and she proposes an alternative psychologist, Ms J, who is based at [suburb omitted], it would seem, and, therefore, much easier for the mother to attend.
The difficulties in accepting the mother’s proposal about an alternative psychologist are evident from the statements that had been made by
Dr Milch. It presents a further difficulty and change for [X] and, indeed, the qualifications of Ms J to conduct this type of family therapy are largely unknown. It is difficult, in the circumstances of this case, when the stakes are so high for [X] and for the mother, and when this has repeatedly been explained to her, to accept that the reasons provided for disengaging with family therapy are acceptable under the circumstances.
The orders in question dealt extensively with the meeting of the cost of it. There can be no doubt that the mother was aware that the cost to her would have been about $52 for each session with the psychologist. She says in her submissions that she wasn’t aware that the attendance would be as frequent. Also, she says she was not aware of the cost of parking associated with coming into the city. The mother’s concerns need to be weighed in the balance with all of the other concerns that are evident from the expert evidence in this case as well as the long history of this matter.
If I make the order that is sought by the father, supported by the independent children's lawyer, then there is no doubt that [X] is going to experience a sudden and potentially traumatic change in her life, and there is no doubt that, at least, from her perspective and the mother’s perspective, she might regard such a change as not reflecting the views that she has expressed to various professionals in this case. However, that needs to be weighed against a number of other matters.
In particular, this is a case where I find, on the evidence, that there is a need to protect [X] from psychological harm, from being exposed to, I think, what would unfortunately have to be characterised as emotional abuse in the home of her mother. The evidence of Dr Milch in question, but also of the family consultant, very graphically sets out what [X] appears to be experiencing and the future risk to her if she remains in the mother’s household.
Also, there is more than ample evidence, I find, from the history of this matter, that it would enable me to find, even at an interim level, that there are real issues about the mother’s willingness and ability to facilitate a relationship between [X] and her father. Also, that there are real issues about the nature of [X]’s relationship with her mother, and that, in particular, it is psychologically unhealthy. That means there are issues about the mother’s capacity to provide for her emotional needs.
I know that this is going to be a very significant change for [X], and I appreciate that this is going to be difficult for the mother to accept. But as I’ve indicated to everybody before, this is a temporary decision, and what’s in the best interests of [X] today is something that can be revisited in future and which, I assure you, will be revisited in future, depending on the circumstances of the case.
But when one has regard to the evidence and all of the factors that I’ve referred to above, I think it’s apparent that an order does need to be made in terms of that sought by the father. Accordingly, I propose to make orders in accordance with the amended application filed by the father on 23 December 2009.
A number of issues arise in terms of implementing this order. I understand that [X] is presently with her grandfather at [suburb omitted]. I’m concerned about trying to facilitate as smooth as possible a transfer into the father’s care, and what I’m proposing to do is to make some further orders to the following effect.
Firstly, I’m going to request the independent children's lawyer to contact the grandparents, and advise them of the orders that I’ve made, and that the father will be there to collect [X] in the next hour or so. I’m going to direct that the father attend at the home of the grandparents to collect [X] in the next hour or so. I’m going to direct the mother to keep away from the grandparents’ home until such time as [X] is collected.
I’m going to order the mother, in the presence of the independent children's lawyer, to contact her parents to let her know that orders have been made and that the father will collect [X] in the next hour.
I’m going to make a recovery order which is to lie in the registry until 3 pm, and which will be suspended on notification that [X] has been collected by her father.
I’ll bring it back in, say, three and a half months time to see how things are progressing.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Paris Rosemont
Date: 10 May 2010
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