Tracey and Meade-Mortensen

[2008] FamCA 1162

FAMILY COURT OF AUSTRALIA

TRACEY & MEADE-MORTENSEN (NO. 2) [2008] FamCA 1162

FAMILY LAW – CHILDREN – 7 year old boy – Contact with father – Mother’s extreme apprehension – Efforts at re-introduction after trial failed – Determined that further efforts would be very harmful – No order for further contact

APPLICANT: Mr Tracey

RESPONDENT: Ms Meade-Mortensen

FILE NUMBER: BRF 2230 of 2003

DATE DELIVERED: 25 November 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 25 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lyons

SOLICITOR FOR THE APPLICANT: MacDonald Law

SOLICITOR FOR THE RESPONDENT: Mr Emerson, Emerson Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg, sba Family Lawyers

Orders

IT IS ORDERED

1. That the child, …, born … September 2001, live with the Mother.

2. That the Mother have sole parental responsibility for the said child.

3. That the father not spend time with or communicate with the said child.

4. (a)     That paragraphs 2, 3 and 4 of the Orders of this Court made on 23 January 2006 be discharged.

   (b)That the PACE Alert currently in place in relation to the said child be lifted.

5. That pursuant to s65DA(2) and s62B, 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 Tracey & Meade-Mortensen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2230 of 2003

MR TRACEY

Applicant

And

MS MEADE-MORTENSEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter was before me for four days, commencing 12 May 2008.  The matter has, in fact, been before me for a total of almost three years. 

2. I refer to my judgment delivered on 15 May 2008 which outlined some of the issues and evidence before me during the hearing.  As emerges from that trial and that judgment, the father's reasonable ambition to have a relationship with his son had not come to pass by May of 2008.  The child was born in September 2001, so he is currently 7 years of age. 

3. At the time the proceedings came before me, the reality was that the child had not met his father and, as is set out in the judgment, the mother asserted that she had been harassed and emotionally destroyed by the father and, as part of her response, she moved to Perth in 2002.  The parties had separated before the child’s birth.

4. The father's efforts to address those problems, as I say, have spanned almost three years before this Court and he has continued to encounter logistical difficulties and the mother's strong opposition. 

5. In the proceedings on 12 May and beyond, I had regard to the evidence of the parties and the evidence of the experts and concluded that the mother's apprehensions and anxieties were real to her and, as Dr M suggested at that time, even the prospect of some limited contact might be debilitating for the mother and affect her capacity to parent and function and have an adverse impact upon the child.  However, during the course of the proceedings, the Independent Children's Lawyer proposed a very cautious, limited process of introduction of the child to his father under strictly supervised arrangements.  The father eagerly embraced that prospect, no doubt hoping that it would be the first step in a process of developing a relationship with his son.

6. Dr M had, as I say, very real concerns about the prospect of imposing contact upon the mother but was supportive of a trial, as it were, on the very limited basis suggested by the Independent Children's Lawyer because she determined that, in those very limited circumstances, the harm which may be occasioned to the child was, as it were, a risk worth taking to at least explore the viability of introductions and time spent, and it was very much on that experimental basis that I made orders on 15 May 2008 designed to put in place arrangements for two limited visits, with a view of receiving evidence about the outcomes and the viability of extending upon that trial.

7. The father did see the child in August and I have the report of the supervisor, Ms J, which suggests that the episode between father and son was a reasonably positive, uneventful one in terms of the observations of the counsellor.  However, it is known that the second planned visit did not take place.  The mother asserted that the child did not want to attend but, in any event, she was clearly not able personally to accommodate that second visit.

8. I have the benefit of an updated report from Dr M, which includes interviews with the parties and with the child.  Sadly, this pleasant young child was to tell Dr M, when asked about three wishes:

   "one – that I don't see my father again, two - that he never comes to school to try and get me, three - that he never comes to Perth." 

   When describing the worst thing that has happened to him, he said it was:

   "seeing his Dad."

   The boy expressed concerns about his father taking him away and about having bad dreams.

9. The mother had three panic attacks during the course of her interview with Dr M. Dr M had the benefit of conferring with the mother's treating psychiatrist, Dr R, and jointly they are of the view that the mother has psychiatric/psychological/personality issues which leave her, as I perceive it, predisposed to anxious reactions.  In the circumstances of this case, she has developed phobias and depression.

10. I have earlier made a finding - as I say, in the earlier proceedings having observed the parties over four days, and in particular having observed the mother over four days - that her concerns are genuine, and there was not the need to determine to the extent they are justified, but they are real, and what has emerged since the hearing of this matter is, unfortunately, a failed exercise.

11. Whilst the time itself did not appear to be a negative experience, I am satisfied that the events surrounding it, and particularly the mother's reaction to the contact and her inability to facilitate the second visit, are consistent with the medical assessments, consistent with my assessments of the mother, and really point to the future.

12. Dr M concluded in her report:

    "It is my view that circumstances are unlikely to change.  In other words that any attempt at contact between [the child] and his father is likely to result in an exacerbation of the mother's symptoms.  It is my view that this compromises her parenting ability and this is reflected in the development in [the child] of symptoms at the time of the last attempt at contact.  My impression is that the attempt was conducted meticulously by a skilled counsellor and I form the conclusion that it is highly unlikely that any future attempt at contact would be successful.  If the only criterion to be addressed was the well being of the child it would be more advantageous to [the child] not to have contact with his father until he is at an age when he may actively seek such contact.  Despite the obvious disadvantage to him of growing up with the belief that his father is a bad person, any alternative would mean disruption of his capacity to achieve his normal developmental goals."

13. In his interview with Dr M, the father appeared to acknowledge the reality of the situation and apparently informed Dr M that, at that stage, he did not believe that contact would work and that he would no doubt reluctantly have to sit back and not have contact.  I am in no way critical of the father if that was his position and he has now changed it.  One can only begin to understand the gravity of these types of decisions but, with respect to him, what he is asking the Court to do is not to make any further orders for contact at this time, but to make some order requiring the mother to submit to further medical treatment. 

14. It is clear from the report of Dr M that the mother is resistant to that course and she would only attend to such treatment under sufferance. The medical evidence on such exercises is overwhelming to the effect that, if people are not embracing the prospect of help, they are not going to receive any help.  If she is forced to attend upon a medical practitioner against her wish, she is not going to derive any benefit from it.

15. The medical evidence is already in.  There is not likely to be any change, even with skilled intervention.  There is not likely to be any change to the circumstances surrounding the child, and to the prospect that a continuation of this litigation is not going to serve his interests, it is only going to be to compromise his mother's well-being.  She is his primary caregiver.  The sad reality in this case is that she is his world as a 6 year old/7 year old boy.  He is entirely dependent upon her for his care and well-being, and the remote, at the very best, prospect that there is any chance of an improvement in that state of affairs in the short or medium term is, in my view, far outweighed by the immediate compromise to the child's well-being that would be occasioned by persisting with this matter beyond this point.

16. Regrettably, I have concluded, in the unique circumstances of this case, that it is not in the child’s best interests to persist with litigation designed to protract and extend what is causing difficulties in his life, and it is one of those sad and rare cases where I need to make orders which reflect the reality, and that is, orders in terms of the draft orders handed up on behalf of the mother, which vest living arrangements and parental responsibility in the mother and that there should be no order for contact.

17. I think the reality of this case has now become not a Family Court matter, but a personal matter between the father and the son which might be pursued at a pace and at a time later in the child’s life when, and if, he chooses to do so.

18. In those circumstances, there is no purpose to a continuation of any PACE alert.

    ORDER DELIVERED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  13 January 2009