Tracey and Meade-Mortensen

[2008] FamCA 372

FAMILY COURT OF AUSTRALIA

TRACEY & MEADE-MORTENSEN [2008] FamCA 372

FAMILY LAW – CHILDREN – With whom a child spends time –  6 yo boy – never met father – mother alleges past victim of father’s domestic violence – extreme anxiety about any contact – court determines limited supervised introduction with subsequent review in child’s best interests

APPLICANT: Mr Tracey

RESPONDENT: Ms Meade-Mortensen

FILE NUMBER: BRF 2230 of 2003

DATE DELIVERED: 15 May 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 12 - 15 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lyons

SOLICITOR FOR THE APPLICANT: MacDonald Law

COUNSEL FOR THE RESPONDENT: Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT: Emerson Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr George

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: SBS Family Lawyers

Orders

IT IS ORDERED

1. That the child, …, born … September 2001, have two (2) sessions of supervised time with the Father at Relationships Australia Children’s Contact Service in Perth or Freemantle over a period of two (2) consecutive weekends, with the first session to be no more than one (1) hour and the second session to be up to two (2) hours as may be deemed appropriate by a Counsellor nominated by Relationships Australia Western Australia.

1. That the Father take all steps necessary, including undertaking any intake requirements of Relationships Australia, to give effect to these Orders.

1. That the Father meet any costs associated with such supervised time.

1. That the Father give no less than one (1) month’s notice of the dates of his intended travel to Perth.

1. That the Mother take all steps necessary to secure attendance of the child at the contact service, including undertaking any necessary intake requirements and including attending upon any Counsellor and counselling recommended by Relationships Australia before and after such supervised time.

1. That the Independent Children’s Lawyer secure a report from the contact service and provide a copy of that report to the legal representatives for each of the parties.

1. That the matter be listed for a Continuation mention before Justice Jordan at 9.30 am on Tuesday, 19 August 2008.

1. That each of the parties be excused from personal attendance on 19 August 2008.

1. That the Mother give the Independent Children’s Lawyer not less than thirty (30) days’ written notice of her intention to relocate the child’s residence, including the new location proposed and the reasons relied upon by the Mother in support of such a change.

IT IS NOTED

1. That Orders 2, 3 and 4 of the Orders of this Court dated 23 January 2006 in relation to the placement of the child on the Airport Watch list remain in effect until further order.

IT IS FURTHER ORDERED

1. 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: BRF2230/2003

MR TRACEY

Applicant

And

MS MEADE-MORTENSEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I direct that these Reasons be transcribed expeditiously and copies be made available to the legal representatives of the parties.

2. The matter before the Court essentially raises the question of whether it is in the best interests of a 6 year old child, who was born in September 2001, to be introduced to his father. 

3. The child’s mother argues strongly that it is not in his best interests.  The father contends that the child should be given that opportunity and hopes that, in the fullness of time, he may be able to play an active role in his son's life and spend some meaningful time with him.

4. During the course of these proceedings, the Independent Children's Lawyer proposed that the Court should put in place some interim orders designed to introduce the child to his father in a controlled environment, with a view to then reviewing the position with the benefit of a report in relation to that introduction.

5. In his application, the father seeks a wide range of orders related to future care and contact issues, but before me he has pursued a much narrower case, focusing largely upon the proposal of the Independent Children's Lawyer.  In that sense, at least on one view, the parameters have become narrow.

6. The mother argues for a final determination that there should be no orders for contact and I have, for reasons I will explain, limited myself to a case with the parameters of considering whether there should be no order for contact, supervised or otherwise, or whether I should make the types of orders proposed by the Independent Children's Lawyer.

7. The background includes observing that, whilst the matters for determination may have become very narrow, there are serious matters in issue in this case.  The Court is here reviewing what was clearly a short, troubled and largely dysfunctional relationship which had its beginnings towards the end of 1999 and was finally terminated early in 2001, well before the child’s birth.

8. It is also common ground that conflict between the parties continued, if not increased, after separation.  There were multiple references to the authorities and a number of domestic violence applications.  The mother actively ensured that the father had nothing to do with the child.

9. Ultimately, the mother took flight to Western Australia in March of 2002 for the express purpose of escaping from the father and removing herself and the child from the traumatic life she said she was exposed to in Queensland.

10. The father acknowledges the conflict but refutes suggestions that the problems before and after separation were solely his responsibility.  He maintains that the mother did in the past, and has continued to this time to exaggerate and fabricate a case against him.  He says that the mother's flight was unwarranted and designed only to exclude him from the child’s life.  He says that once he discovered the mother's whereabouts, he has committed to the legal process designed to enable him to have a relationship with his son.

11. In the context of the case, the stark decision for me is whether I should, at this stage, determine that the child has lost his right to a relationship with one of his parents, or whether I should proceed cautiously with a structured, regulated and supervised introduction of father and son.

12. In considering those matters, I must have regard to the provisions of the Family Law Act and, in particular, take account of the one constant, and that is that in determining what parenting orders should be made, I must have regard to the best interests of the child as the paramount consideration.

13. In the context of the issues and facts of this case, it is timely to formally remind oneself of the objects and principles of the Family Law Act. Those objects include observing that the provisions of the Family Law Act are clearly designed to ensure that children's best interests will be ordinarily met by enabling them to enjoy the benefit of having both parents meaningfully involved in their lives, subject to the need to ensure that children are protected from harm. The Court is obliged to make orders designed to ensure that children receive adequate and proper parenting and to ensure that the parents fulfil their duties and responsibilities towards the care, welfare and development of their children.

14. The principles underlying those objects include acknowledging that, ordinarily, (1) children have a right to know and be cared for by both their parents and (2) children have a right to spend time with and communicate on a regular basis with both their parents.

15. The Act also prescribes that the primary matters for consideration by a Court are, firstly, the benefit to a child of having a meaningful relationship with both of the child's parents and, secondly, the need to protect children from harm.

16. It is important to note that the focus of those matters is upon the child’s rights.  Of course, that is not to say that the Court should not have regard to the legitimate interests and aspirations and concerns of the individual parents, but those interests, concerns and aspirations are secondary to the primary consideration relating to the rights and welfare of the child.

17. Through her counsel, the mother effectively acknowledges the legitimacy of the objects and principles of the Family Law Act, but argues that this is an exceptional case, as it were, where the child should be deprived of the opportunity to have a relationship with his father on the basis that any contact would be to expose the child to an unacceptable risk of harm.

18. In her evidence, the mother bases that proposition on two primary premises, firstly, relating to the character and behaviour of the father and her concern that he represents a poor role model who would be a harmful influence upon the child.  In that sense, she does not see any value in an introduction.  Secondly, she contends that her experiences with the father have been so negative as to leave her damaged and vulnerable, and so unable to accommodate any relationship between the child and his father as to be debilitating and as to seriously undermine her functioning generally and as a parent.

19. If I turn to the specifics of the mother's case, on the question of broader character, she asserts, as I say, that the father is a poor role model.  She describes him largely as a failure as an adult and a parent; she refers to his asserted dishonesty and his background and history, which she says includes prostitution, criminal behaviour and other examples of a lack of responsible attitude.  She also raised a concern about the prospect that he is a paedophile, based at least in part upon his habit during the relationship of bathing and sleeping naked with her young daughter from a previous relationship.

20. On the issue of domestic violence, she refers to an isolated incident of physical abuse, but primarily she relies upon an assertion that, during the relationship, the father was verbally and emotionally abusive, manipulative and controlling and prone to exhibiting extreme jealousy.  She says that, after separation, he continued his harassment of her and engaged in active stalking.  She said that this resulted in her experiencing extreme anxiety which necessitated her flight to Western Australia.

21. The father largely denies these allegations against him.  He acknowledges that there was a high degree of conflict and acknowledges his contribution to that conflict, but says that he was not the perpetrator of abuse, physical or emotional, save for one incident of physical altercation which has not been a particular focus of either of the parties.  The mother's complaints are primarily relating to emotional abuse, which the father denies, and he particularly denies any harassment after separation and any stalking.

22. In relation to these allegations, in addition to hearing the evidence of the mother, I have heard from a Ms F and a previous partner of Ms F, Mr B.  Other witnesses have sworn affidavits.  I need to observe that the quality of evidence on these matters was, in large part, of dubious value.  Much of the evidence relied upon by the mother was first‑, second- or third-hand hearsay and opinion evidence.  However, of course, Ms F and Ms B were able to give some direct evidence of their own personal experiences which was at least potentially of some probative value.  The issue of the relevance and probative value of this evidence of past relationship difficulties was not argued before me, but in any event I am satisfied that I can make appropriate findings by largely focusing upon the evidence of the parties themselves.

23. On that issue, I need to observe that I found the father's presentation somewhat troublesome.  Whilst giving evidence, he was at times vague, at times guarded and at other times appeared quite evasive.  Regrettably, at the end of his oral testimony, I was left with a concern that I could not have a great deal of confidence about the quality and reliability of the evidence he gave.

24. The mother, on the other hand, presented as a much more credible witness.  She was consistent, she was firm and she convinced the Court that the beliefs she held were both genuine and reasonable.  I broadly accept what the mother had to say, although at the same time I acknowledge that what she has to tell the Court has necessarily a very subjective element to it.  If her evidence was broadly reliable, it needs to also be observed that her reactions to what transpired were likely to have been exaggerated, in the sense that, I suspect, the mother was becoming more and more anxious, more and more vulnerable and perhaps more prone to assume the worst.  Further, the way the case has been presented makes it impossible for me to make any firm findings on, for example, the stalking allegation.  The case about such specific matters is somewhat fragmented and it would be impossible for me to tell to what extent any contact subsequent to separation may have been coincidental, or may have been evidence of stalking.

25. What I am able to find as a fact is that the reality for the mother is that she perceived that she was being stalked and, given her experiences and presentation, I accept that that was a reasonable and rational belief on her part.  However, I am not in a position to make positive findings on the assertion itself because of the lack of detail and lack of examination of those matters before me.

26. I accept that in March of 2002, the mother was so unsettled, intimidated, concerned and anxious about her life in Queensland, that she did indeed perceive that it was necessary for her safety and for the welfare of her child to take flight.  I conclude that, in the circumstances, that decision was one reasonably based. 

27. I therefore reject a suggestion that the real purpose of the flight was one designed to alienate the child from his father although, necessarily, that has been one of the consequences of the circumstances of the parties.

28. Other relevant findings that I make on the totality of the evidence which are relevant to my limited inquiry are that the mother presents as a dedicated parent who has provided exceptional parenting to her children despite difficult circumstances and despite her own struggles.  She has managed, in difficult circumstances, to piece together a very good life for herself and her children.

29. The best evidence of the quality of the mother's parenting is the child, the subject of these proceedings.  It is quite clear that the mother has raised a young boy who presents as being delightful, intelligent, articulate, sensitive and, as one of the witnesses was to say, impeccably mannered.   This is to her great credit. 

30. However, as praiseworthy as those outcomes are, there can be little doubt in my mind that the greatest testament to the mother as a parent and a person is the fact that, despite the intensity of her fear of, and antipathy towards, the father, she has not seen fit to share her views of the father with her son.  She has not engaged in any conscious effort to alienate the child from his father. 

31. Her admirable efforts in that regard become relevant to my deliberations in this matter.  Happily, I am not dealing with a troubled, damaged, anxious young boy; I am dealing with a young, well-developed, sensitive boy who is, as it were, something of an open book, who is currently approaching life without knowledge of his father and, importantly, also happily, without any fear of his father.

32. In terms of the father and his presentation and parenting, it is more difficult to judge these matters.  As Dr M observed, the father presents as a person who has had a history of difficulty with social relationships and his past choices in lifestyle and relationships exhibit a degree of instability which is reflected in, what I perceive as, still a quite uncertain future.  However, there does appear to be one relevant constant which emerges from the father's history, and that is that he does appear to place significant value upon his relationships with his children. 

33. The mother queries the father’s motivation in this case, but I am unable to conclude anything other than the fact that he has a genuine interest in meeting his son and a genuine interest in being given an opportunity to develop a relationship with him and to play a role in his life.

34. It is difficult for the Court to criticise his failure to meet any responsibilities towards the child in the past, given the mother's flight and the obstacles placed in his way.  I accept the father's evidence that, indeed, it would have been much easier for him to have walked away from this whole exercise.  This litigation has been an ordeal for each of the parties.

35. I accept, therefore, that the father is motivated by a belief that it is important for the child to meet him and to come to know who his father is, and by his belief that it is important for the child to have the opportunity to come to know his many siblings on his father's side.

36. Those objectives of the father are, of course, entirely consistent with the provisions of the Family Law Act to which I have earlier referred. They are also entirely consistent with the effect of the evidence of the experts called in this case. That expert evidence confirms that it is ordinarily in a child's best interests to have a relationship with each of his parents and the fact that a child is most likely to reach his or her full potential if they do have the benefit of input from each of the parents. The experts gave direct evidence that an association with each of the parents enables a child to understand his family background and to understand his identity, and I note the experts each say that these are important elements in the growth and development of a child.

37. I also note the evidence of Dr M, where she was to observe that it should be seen as a major insult to a child's development to unnecessarily deprive him of the knowledge of and association with a parent. 

38. Each of the experts was to advise the Court that the denial of a relationship is likely to create difficult identity issues for children and can result in children either demonising or idealising their father, and their observations that neither of those proposals are healthy outcomes.  They each suggested that denial can result in anger and resentment and that, ironically, that anger and resentment can be directed towards the primary caring parent.  It was also observed that a denial of a parental relationship can result in the child experiencing broader relationship difficulties later in life.

39. I note that Ms K, who has had the benefit of interviewing the child, observed that the child exhibited some interest in the notion of having a father and some curiosity and interest in the prospect of meeting his father.  Ms K, taking all the matters that she had before her into account, which included, I need to highlight, clear indications from the mother about her anxiety about such prospect, was to recommend the commencement of some form  of supervised contact, largely reflected in the proposed orders now put forward by the Independent Children's Lawyer.

40. As I said at the outset, the mother remains opposed even to the prospect of one or two supervised contact visits. In that sense, and having regard to both the evidence of the experts and the provisions of the Family Law Act to which I have earlier referred, I take the view that it is incumbent upon the mother to satisfy the Court on relevant principles and evidence that it is in the best interests of the child that he be deprived of that limited opportunity to even meet his father.

1. Necessarily, counsel for the mother sought to argue a case that I should find that the inherent benefits of such an introduction and knowledge are outweighed by the risk of harm to the child.  Counsel acknowledged in the course of her submissions that limited, regulated, supervised contact would address some of the broader issues of risks enunciated by her client.  Counsel based her case primarily on the proposition that even one or two supervised contact visits would be so debilitating for the mother as to leave her so anxious and upset, and that it would have such a serious impact upon her parenting and functioning as to represent detriment and harm to the child.

2. The mother has certainly asserted before me that she would be very anxious.  She says she is uncertain how she would cope and makes assertions which, in isolation, might be capable of supporting the propositions advanced by her counsel and, of course, there is a large subjective element in these matters which I must take into account.  At the same time, however, of course a mere declaration to that effect by one of the parties is unlikely in most cases to be sufficient.

3. I need to take into account the totality of the evidence and any objective evidence. I note in that regard that, despite the fact that the father has apparently been aware of the fact that the mother was resident in Western Australia for a number of years, there has not, in fact, been any contact for over six years.  There is no evidence at all of any direct or indirect harassment of the mother by the father during that six-year period.  In this context, I re-state my earlier finding that I am satisfied that the father is genuine in his wish and in his pursuit of this litigation to have some contact with his child.  I am not satisfied that I should make any finding that proceeding with this matter and filing affidavits should be construed as harassment.  In the absence of that proposition, there is a total void in regard to any suggestion of harassment since 2002. 

4. Importantly, there is also a notable lack of evidence that the mother is currently suffering from any illness or disability.  The evidence, in fact, is to the contrary.  The evidence that is before me is to the effect that the mother is functioning well as a parent and is in employment and, in her words, has the benefit of a very strong network of friends within Western Australia.

5. Whilst she is clearly troubled and anxious about this litigation and anxious about the outcome, she has continued to excel as a parent and, to the extent that there is evidence on this point, functions quite well and normally as a person.

6. Whilst the mother’s presentation before me was, from time to time, unsettled, I did not observe anything out of the ordinary in that regard.  Unfortunately, stress is a very common component of litigation before me when parties are discussing such sensitive and emotional issues and emotional reactions under cross-examination occur more often than not.  Whilst the mother was at times somewhat unsettled, at other times she presented as a surprisingly resilient, determined and capable adult.  She appeared to largely cope with the proximity of the father and the ordeal of the trial.  Of course, I have no idea of how the mother might have been feeling inside and I can only rely, in part, upon my observations and otherwise look to any objective or expert evidence.  I needed to look elsewhere to see if there was any other objective evidence which would support a proposition that even one supervised contact visit would be so debilitating as to cause her to decompose mentally, emotionally or the like, in such a fundamental way that it would affect her functioning as a parent and a person.

7. I accept that Dr M, to the extent that she was able to make any comment, having regard to her limited and dated direct involvement with the mother, was to say that the prospect of even limited contact may disturb the mother's peace of mind and that the level of anxiety might impair her parenting.  However, Dr M certainly was unable, and declined, to go anywhere near as far as the propositions advanced on behalf of the mother by her counsel in her submissions. 

8. Indeed, when Dr M was confronted with the specifics of the limited proposal put forward by the Independent Children's Lawyer, she said that she saw great value in that exercise for the mother and the child in terms of the opportunity to do some reality testing, and she talked about other benefits. When contemplating the disadvantages, the down sides of the proposal, Dr M went on to say that she thought the exercise could be undertaken without significant harm to the mother or to the child. Dr M noted specifically in relation to the child, that she doubted that the child would experience any significant harm.

9. I accept that the mother is strongly opposed to even these limited proposals and I accept that she would be upset and anxious about the father's attendance in Western Australia for the purpose of availing himself of such contact. I also accept that the child would be likely to be left with an awareness of the mother's concerns and that some of that anxiety may be transferred to him.  Nevertheless, I am at the same time satisfied on the evidence that those risks are not grave and there are not likely to be any significant short- or long-term adverse effects upon mother or child. I am reinforced and reassured in my thinking in this matter by continuing to observe that, whatever the mother's personal feelings are, she is a person capable of remaining entirely child‑focused. She would not actively implant any fear into her son in anticipation of this exercise. She would not do anything to make it more difficult for him.  To the contrary, the quality of her parenting is such that she is likely to do everything humanly possible to help her son deal with what now lies ahead.

10. Having regard to the evidence of the benefits of this introduction, which evidence is consistent with the benefits identified in the legislation, having regard to the limited nature of the proposals of the Independent Children's Lawyer and the father, with the safeguards inherent in those proposals, and having regard to the lack of any cogent or compelling evidence about significant adverse consequences, I have determined that it is in the child’s best interests to be given the opportunity to at least meet his father.

11. With that in mind, I will make orders and list the matter for mention as a continuation hearing in anticipation of this process probably taking at least a couple of months, and then there is the need for a report, so I might review the matter towards the end of August, 9.30 on Tuesday 19 August 2008.  As that is just a mention, I excuse each of the parties from personal attendance, so that will be just a review to see where the matter is at, with a view of, if necessary, listing the matter for fuller consideration at some later date.

    RECORDED : NOT TRANSCRIBED

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: