Wade and Wade

[2008] FamCA 298

FAMILY COURT OF AUSTRALIA

WADE & WADE [2008] FamCA 298

FAMILY LAW – CHILDREN—With whom a child communicates—Best interests of a child—where Applicant Mother has psychiatric issues and alcohol addiction—where Applicant Mother seeks to spend time with the Child—where Respondent Father seeks to restrict Applicant Mother's contact to written communication only—Orders so made.

APPLICANT: Mrs Wade

RESPONDENT: Mr Wade

INDEPENDENT CHILDREN’S LAWYER: Ms Chan, Solicitor

FILE NUMBER: BRF 6278 of 1998

DATE DELIVERED: 25 March 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Mother appeared in person

SOLICITOR FOR THE RESPONDENT: Ms Awyzio, Solicitor of DA Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Chan, Solicitor of Legal Aid Queensland

Orders

IT IS ORDERED:

1. That all previous Orders of this Honourable Court pertaining to the child, …, born … September 1996 shall be discharged.

2. That the said child live with the Father.

3. That the Father have sole parental responsibility for all decisions in relation to the said child including both short term and long term decisions.

4. Unless otherwise agreed between the parties, the Mother will be at liberty to communicate with the said child only in writing including by sending cards and small gifts to the said child from time to time with such written communication to be sent through the Father.

5. The Father to keep the Mother informed at all times of his postal address and notify her immediately in writing of any change to his current address which is  ….

6. The Mother to keep the Father informed at all times of her postal address and notify him immediately in writing of any change to this.

7. The Independent Children’s Lawyer be discharged.

8. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 6278 of 1998

MRS WADE

Applicant

And

MR WADE

Respondent

REASONS FOR JUDGMENT

1. I am asked to make orders in relation to the parties' 11 year old daughter, who was born in September 1996.  At the present time the child resides with her father in the Sunshine Coast District. 

2. By way of an amended application for final orders filed on 6 December the applicant mother sought orders that the child live with the father, that there be an order for joint parental responsibility and that the mother spend time with and communicate with the child at all times as may be agreed upon between the parties, but failing agreement as follows:

   a)in the presence of a child psychologist or social workers to be appointed by the Court or as many visits as deemed necessary by the Court and/or the independent children's lawyer in consultation with recommendations of the child psychologist or social worker;

   b)thereafter for a period of four months each fortnight for two hours at the Bayside Contact Centre or the Caboolture Contact Centre subject to the availability of the said contact centres;

   c)thereafter for the first Saturday of the month for four months in the Sunshine Coast area between 10 am and 2 pm at a park, beach or other public place as agreed with the father;

   d)thereafter for the first Saturday of each month for three months in the Sunshine Coast area between 10 am and 5 pm at a park, beach or other public place as agreed with the father;

   e)thereafter for the first weekend of each month, 10 am Saturday until 3 pm Sunday, such contact to take place at the mother's time and such time to revert to each alternate weekend after six visits.

3. The orders sought by the father on today's date are annexed to an affidavit of his solicitor filed by leave on today's date.  In summary form they provide that all previous orders be discharged; that the child live with her father; that he have sole parental responsibility for all decisions in relation to the child; and unless otherwise agreed upon between the parties, the mother be at liberty to communicate with the child only in writing, including sending cards and small gifts from time to time with such written communications to be sent through the father and thereafter a post office box is provided, and the provisions for the parties to keep each other informed of their respective postal addresses and an order that the independent children's lawyer be discharged.

4. This matter was previously before me on 11 December last year.  At that time I made orders, after hearing various submissions and reading the material, I set the matter down for trial on today's date and tomorrow's date.  I made further orders that the parties were to file and serve any affidavit material by 22 February.

5. On 22 January this year the mother, through her solicitors, Smith and Associates, filed a notice of discontinuance, discontinuing her application for final orders.  I note that the parties had filed notices of discontinuance in relation to previous proceedings but that was many years ago.  In the meantime, subsequent to the hearing on 11 December last year, the independent children's lawyer had arranged for Dr V to provide an updating report as to the mother's psychiatric status.  He had provided two earlier reports which were annexed to affidavits filed in May 2006 and October 2007.

6. The interview for the third report was to take place the week after the notice of discontinuance had been filed.  Somewhat surprisingly, in view of the fact that the mother had instructed her lawyers to file a notice of discontinuance, the mother attended for the interview with Dr V.  One would be entitled to ask the question, "What was the point?"  The third report of Dr V is annexed to his affidavit filed on 27 February. 

7. On today's date the father's legal representative seeks, in effect, orders by default in view of the fact that the mother has discontinued her proceedings.  The mother appeared with her solicitor who advised the Court that the mother's legal aid had been withdrawn. He sought leave to withdraw from the proceedings and such leave was granted.

8. As the mother was present and contested the orders that were being sought by the father I took submissions on the issue whether default orders in terms of those sought by the father should be made.  I felt it was necessary to satisfy myself on the basis of the evidence before the Court that such orders were in the best interests of the child.

9. The mother's original application in relation to the tracing back of the current proceedings was filed on 27 July 2005, two and a half years ago.  In those orders she again sought for a gradual build up of periods of time that she spend with the child.  She initially sought periods from 10 am to 2 pm in the Sunshine Coast area with the child’s older sister, K, to be present during such periods of contact and thereafter there was to be a progression of ever increasing periods of time.

10. In his original response document of 8 September 2005 the father sought an order that the status quo remain.  It is not quite clear to me what he intended by that but I assume, for present purposes, in effect it meant there was to be no face to face contact between the child and her mother.  As I understand the position there has been no face to face contact for about the last six and a half years and the child has very little recollection of her mother.

11. The issue for determination today is whether the Court should make orders as sought by the father which provides for communication between mother and daughter to be limited to written communication only or whether I should decline to make those orders and, in effect, set the matter down for a further date of hearing.

12. In the material that I was asked to read there are two reports of Mr S.  The first report is annexed to his affidavit of 1 December 2005.  Mr S is both legally qualified and qualified as a social worker.  He sets out in his reports the history of the parties' relationship.  The parties had three children, D who was born in March of 1985; K born February 1989 and the youngest child, the subject of this application.

13. The parties have been litigating since shortly after separation in about 1998.  In May 1999 orders were made for all three children to reside with their father and that position has remained throughout. 

14. The first report of Mr S’s is very comprehensive, extending over some 27 pages.  He, to my mind, has looked at the matter in considerable detail.  His recommendations at the conclusion of that report, and that there be a psychiatric assessment of the mother, and that in the meantime there would be no contact between the child and her mother.  Pursuant to that recommendation from Mr S appointments were made and Dr V provided a report in mid-2006.  As I said, that report is annexed to his affidavit filed on 9 May 2006.

15. At page 12 of that report under the heading "Conclusions" Dr V notes:

    The mother clearly has a significant problem of alcohol abuse and much of her problematic behaviour has arisen in the context of this abuse.

    “Alcohol abuse, however, does not explain the full clinical picture and the new data, I believe, confirms the view expressed provisionally.  To reiterate, there is a profound disorder of personality and, in addition, it seems that there is a chronic dysthymic disorder and it is probable that there have been episodes of major depression, although currently there is no major depression. I note some obsessive compulsive symptoms but these may be secondary to the mood disorder. The personality disorder is of a mixed type with borderline narcissistic and dependent traits.

The question then is whether the psychiatric issues of the mother are such as to impact on her capacity to be a contact parent and with respect to this question I trust the following points are useful:  Whether the contact is in the best interests of the child is a much more complex question than psychiatric status and only a Court can determine this question.  The psychiatric status can only be a part of the consideration of this issue.  It seems to me that a critical issue with respect to contact is the unpredictability of the mother's behaviour.  [The mother] may well present as being appropriate enough to have contact with her daughter at various times, however, if the contact does not produce what she seeks or desires, and given her sensitivity and vulnerability she is likely to react towards the child in a manner that the child finds difficult to deal with.  This would be the case whether or not the mother is abstaining from alcohol.

In light of the above it would be difficult to recommend anything other than supervised contact and it will not be possible, I believe, to determine when unsupervised contact can take place, although this question may require further evaluation depending on how supervised contact is proceeding.  He concludes:

The child, […], has no meaningful memory of the mother and understandably has a curiosity about her which translates into some desire to see her mother.  The potential danger is that she may have a fantasy mother and her curiosity and her desire to see her as she gets older may manifest in maladaptive behaviour, thus some supervised contact earlier may be in her interests to avoid future difficulties.  Mr [S’s] advice on this particular question may be useful.”

He goes on to recommend ongoing psychiatric treatment for the mother.

1. The second report of Mr S is annexed to his affidavit of 19 November 2007 at page 17 of that report under the heading "Recommendations".  He noted:

   “(a) if the Court is inclined to order that the mother spend time with the child, such time should, in all the circumstances at this stage, be supervised at a contact centre.  Due to logistical difficulties for the parties, such time should be restricted to once a month at the Caboolture Contact Centre for a period not exceeding two hours with the mother and child at liberty to write to each other in between such visits.”

   I pause to note that that would be a total of 24 hours all up in a period of 12 months.  That is certainly not a great deal of time.  The second recommendation was:

   “The mother must take steps to enter into long term psychiatric treatment, resumption of anti-depressants and psychotherapy as recommended by Dr [V].  If there is to be any advancement on the contact centre time and any proposed move to unsupervised time should be conditional upon an updated psychiatric assessment of the mother indicating that the mother is capable of caring for the child unsupervised.  If the Court is of a mind to order that the mother spend no time with the child it is recommended that a continuation of a current order for communication by mail may be appropriate subject to the independent children's lawyer being available to veto any inappropriate communications received from the mother.”

2. Dr V’s second report is annexed to his affidavit of 4 December 2007.  That was a more positive assessment, so far as Dr V was concerned.  He said:

   “The personality issues noted in the previous report of course remain but her overall functioning is quite good.  In particular I note that she's relatively abstinent from alcohol or other dependency producing substances.” 

   He gave a positive assessment:

   “It's difficult to see any reason why the child should not be reintroduced to her mother in a therapeutically controlled situation.”

3. I note that the date of that assessment by Dr V was 30 October 2007.  At page 3 of that report the doctor had recorded:

   “I note she is not currently on any medication and she is not seeing any psychiatrists or psychologists.  She says she got taken off to mental health at [the hospital] and the last contact with them was March 2006.  She has been on no medication since this time.”

   Information was received by the independent children's lawyer subsequent to this report which led to the independent children's lawyer issuing a subpoena to the Bayside Health Service.  That document has been tendered into evidence before me today.  It makes for sad reading.  On the very night that the mother had seen Dr V there was an incident over on Stradbroke Island and she had had alcohol.  She was on medication and she was taken by the police to the Hospital.  When one looks at those records it appears that the statements she had made to Dr V were simply not correct.  For example, there is a detailed report of August 2007 by Dr W, a medical registrar, detailing recent consultations and interventions with the mother.

4. Dr V’s final report, as I say, was annexed to his affidavit of 27 February this year.  He says under the heading "Conclusions":

   “At the time of assessment there was no evidence that [the mother] was suffering from a depressive illness.  I note she continues to take anti-depressants.  It seems likely that the recent disturbance on the island was due to the resumption of alcohol abuse even though she denies alcohol abuse.  This has resulted in problematic behaviour in the context of the ongoing personality disorder.  At the time of the assessment [the mother] remains insightless about the impact of alcohol on her life and in fact was in denial about the behavioural consequences of her alcohol abuse and blaming others for her problems.  Given the resumption of alcohol abuse it is difficult to see how contact with her daughter can be facilitate.”

5. I have listened to the detailed submissions made by the legal representatives for the father and the independent children's lawyer canvassing the evidence that had been filed in the various reports and affidavits in this matter, canvassing the views of the child’s older siblings, D and K; canvassing their recorded history of interventions with their mother over the period of time.

6. The mother has to realise the Court does not make orders in any sense to punish her for any behaviour in which she has engaged.  That is simply not in the equation.  Something this Court would always foster is where, at all possible, to develop and promote a relationship between a child and a parent. The law that we have to administer specifically provides for the Court to make orders which will best promote a relationship between the natural parents and a child.  I would welcome a situation where I could feel confident it was in the child’s best interests to commence the reintroduction of a relationship with her mother.  The difficulty with that is that the mother has done very little to assist her own cause.  It is something, if only a small indication, but there has been an order in place for quite some time that the mother may write and communicate with her daughter by post through the independent children's lawyer.  I am informed by the independent children's lawyer, and it was not challenged‑ ‑ ‑

   RECORDED  :  NOT TRANSCRIBED

   - - -when Ms Chan said that there had been no communications sent through her by mail by the mother for the last six months.

   RECORDED  :  NOT TRANSCRIBED

7. There is a sense, which makes this case doubly sad, that the child would welcome a relationship with the mother but the child would want to be in control.  The Court would need to be satisfied that the resumption of a relationship would be carried out in a stable manner and in a long term sense.  I think the worst possible outcome for the child would be to have a resumption of a relationship with her mother for a brief period of time only to have the relationship collapse and there to be again, a lengthy period of no communication with her mother.

8. I note that although this matter has been in the Court system coming on for 10 years, there has never been a trial in this matter.  An important factor in dealing with the matter on today's date is, is there anything to be gained by adjourning the matter on today's date and setting it down for a further hearing some time in the second half of the year?  I note the father is legally aided.  I note that it is unlikely the mother would be considered for further legal aid in the circumstances where she specifically gave instructions to discontinue the proceedings. 

9. It seems to me that there is sufficient evidence before the Court to reach a conclusion that little is to be gained by adjourning this matter, once again, to a later date.  What the matter needs is resolution.  The child would be assisted by the knowledge the proceedings were at an end.  I accept the assessments made of the father.  They seem to be consistent, that he is insightful, he is not alienating the child from the mother.  He would want nothing better than for there to be a relationship.  In order for that relationship to be fostered, the responsibility for it must rest fairly and squarely with the mother.  It is not a case of the child taking control of the situation.  She is 11 years of age. 

10. The mother is a mature woman who has given birth to three children.  She is alienated from the two children who are of adult status.  The third child she has the opportunity to have a relationship with but it is her call whether she writes to the child in loving and appropriate and encouraging terms on a consistent, regular basis.  She does not have to send lavish gifts.  She could send small gifts, inexpensive gifts, but be able to convince the child and the child's father that her intentions are honourable, that she genuinely wishes to further the relationship.  It may be that if she persists the child will reply to the correspondence and communication can be slowly commenced in that fashion.

1. The mother is extremely cynical of the father and says that she believes he would not pass on any such correspondence.  There is, other than her own view, no evidence which would support that view.  It would seem to me that a far more likely outcome is the father would be at liberty to censor the correspondence to satisfy himself that anything the mother is saying to the child is age appropriate but, beyond that, I see no reason, given his expressed views, why he would not allow the child to read the correspondence and, in turn if she wished to, to reply to her mother.

2. At this stage, out of an excess of caution, I believe that is the only appropriate course to take, save I would dearly love to be in a position for the sake of mother and daughter to be able to make orders in broader terms, but that is not in accordance with the evidence of the experts who have been engaged to give advice and recommendations to the Court.

3. In the whole of circumstances for the reasons given I record that I have had regard to the matters set out in s.60CC, but principally it relates to the fact that there has been such a long period of time, in excess of five years, where there has been no relationship between mother and daughter.  Let it develop slowly, steadily and assuringly over the next 12 months and hopefully without the intervention of lawyers or Courts the child would be obtaining a degree of independence and maturity where she would feel the need to reach out to her mother providing she could be satisfied and confident that there would be no traumatic incidents.

   ORDERS DELIVERED

4. I pass on my thanks to the independent children's lawyer for her considerable effort, her astuteness and her dedication in this matter.  It is, as always, greatly appreciated.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 25 March 2008