Wilson & Anor and Roberts & Anor

[2010] FamCA 201

FAMILY COURT OF AUSTRALIA

WILSON AND ANOR & ROBERTS AND ANOR [2010] FamCA 201

FAMILY LAW – CHILDREN – Interim – With whom a child spends time

APPLICANTS: Mr Wilson and Mr Farmer

RESPONDENTS: Ms Roberts and Ms Boston

FILE NUMBER: MLC 8071 of 2009

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Dickson

SOLICITOR FOR THE APPLICANTS: Pearsons Barristers & Solicitors

COUNSEL FOR THE RESPONDENTS: Dr Ingleby

SOLICITOR FOR THE RESPONDENTS: Harvey Lawyers

Orders

1. That all applications for final orders shall be fixed for final hearing as a five-day matter commencing 17 May 2010 before me.

2. That the parties shall attend upon Mr P for an update of his report dated 10 November 2009 (the Court noting that the parties have secured appointments on 31 March 2010), the costs of the attendances and report to be borne equally between the Applicants and the Respondents.

3. That all parties shall file and serve:

   (a)Affidavits of Evidence in Chief;

   (b)Affidavits of any witnesses (including an affidavit annexing Mr P’s updated report); and

   (c)Any amended application/response

   by 4.00pm on 26 April 2010.

4. That the matter shall be listed for a telephone mention before Registrar Field on a date to be advised in the week commencing 3 May 2010.

5. That the parties shall file and serve by 4.00pm on 12 May 2010:

   (a)A list of affidavits relied upon;

   (b)A Case Outline; and

   (c)A precise Minute of Orders sought.

Not by Consent

1. That until further order, paragraph 1 of the Orders of Hughes FM of 21 September 2009 shall be suspended.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8071 of 2009

MR WILSON AND MR FARMER

Applicants

And

MS ROBERTS AND MS BOSTON

Respondents

REASONS FOR JUDGMENT

1. E is 19 months old.  He lives with his two mothers:  Ms Roberts, his biological mother, and Ms Boston, her partner.  He has spent time with Mr Wilson, the sperm donor, and Mr Farmer, his partner, until about four weeks ago, when the mothers stopped it.

2. I have today booked the remaining part of the final hearing for five days starting on 17 May 2010.  The immediate issue is whether the existing orders for the child to spend every Sunday and Monday with the two men should be suspended as the mothers seek, continued as the men seek, or varied slightly as the men would accept, depending on the level of variation.

3. The mothers’ case, gleaned from their material and from the submissions on their behalf today, is that they are not only by law, but also in reality, the child’s only parents.  They argue that he should be permitted to grow happily and healthily in his nuclear family, without being exposed to the conflictual relationship between the mothers, and the men, who, from E’s point of view, are not significant people to him.

4. The men’s case is that they have a loving relationship with the child.  They have been a constant part of his little life this far.  He is happy, settled and thriving when spending time with them, and it is in his best interests to maintain his time with them.

5. Today I am presented with a difficult conundrum as to the very short-term orders that I need to make.  E’s best interests are paramount in the interim setting, as they will be when it comes to the longer term orders.  Dr Ingleby for the mothers is correct in pointing me to the objects and principles of Part VII of the Family Law Act, and the primary and additional considerations that I must apply in determining E’s best interests.

6. Dr Ingleby’s emphasis on the role of parents, as opposed to “other persons” is germane to the decision I shall be called upon to make when the case is finally heard.  And although it is part of what I need to consider today, for these short interim purposes, I proceed on the basis that however described, these men have been actively involved in E’s life, and until stopped by the mothers four weeks ago, he was spending two-sevenths of each week with them, and that has been the prevailing situation since around mid-2009, and then subsequently since the orders to that effect made by Hughes FM on 21 September 2009.  The situation has prevailed for more than a third of his life.

7. At an interim stage in proceedings, it is important to provide a child with as much stability and as few changes as possible.  However, that commonsense principle obviously gives way if the prevailing orders or arrangements are contrary to a child’s best interests.  The complexity of an interim assessment of E’s best interests is clear from the material, particularly Mr P’s report, which was written after failed mediation between the four adults.

8. Mr P captures the complexity in noting four different options.  The first is to progress on the basis that the men will be actively involved in E’s life, and thus arrange more frequent contact of less duration, possibly three to four times per week.  The second is to accept that the women will be E’s parents and so stop even attempting to build E’s relationship with the men.  The third option has two options within it,  that is to minimise disruption to E by having no contact, or to have contact, but not on consecutive days.  The fourth option is to stop contact altogether as “the only way to completely spare [E] the difficulties he is experiencing.”

9. At paragraph 24 of his report, Mr P concluded:

   “Which of the four options is chosen depends on how Mr [Wilson] and Mr [Farmer’s] relationship with [E] is envisaged.  If they are going to be his co-parents, they need to see him regularly and frequently.  If they are not going to be involved in anything more than a peripheral role, then it may be better to stop the contact.  Until this critical issue is decided, a non sequential approach may provide some symptom relief.”

10. Mr P’s report is helpful.  It recognises the reality of E enjoying time with the men, as they say, but struggling to cope with the transitions and separation from his mothers, as they say.  Although Mr P appeared to offer at least a short-term interim recommendation of the non sequential approach, to provide, as he put it, some “symptom relief” for E, I note that Mr P’s report was written on 10 November 2009, and that, accordingly, it predates a report that I have from Dr A.

11. Dr A is an experienced psychiatrist.  He has been seeing Ms Roberts since 25 September 2009.  He wrote a report recently, on 29 January 2010.  Dr A emphasised that he has been seeing Ms Roberts, and to a lesser extent, Ms Boston, but accordingly he has no information from Mr Wilson and Mr Farmer.  In any event, he described Ms Roberts as suffering a “major depressive episode”, precipitated by this conflict, and he described her as suffering that condition just shortly before Christmas, that is, after Mr P’s report was completed.

12. The mothers give a dramatic account of the effect on them of E’s time with the men and the conflict surrounding it, and the effect directly and indirectly on E.  The evidence will soon be tested, including as to whether their account is an overly dramatic account as to the mothers, particularly Ms Roberts, being distraught.  Ms Roberts says that she shakes for days before contact.  She describes E as a child who, after contact with the men, could not sleep, lost interest in his toys, rejected Ms Roberts, and was aggressive with other children, as opposed to a happy, healthy toddler, since contact has been stopped. 

13. The evidence will test whether there is no truth in what they say, some truth in what they say, or full truth in what they say.  It will test what is within or outside their control.  It will address the issue of Dr A having advised Ms Roberts to take anti-depression medication, but that she has declined, and it will test whether she has done so for good or for strategic reasons.

14. But until that evidence can be tested, I have the evidence of an experienced psychiatrist diagnosing one of the mothers – E’s birth mother, his main caregiver to date, and the one who has been, and I think is still, breastfeeding him, - as suffering a major depressive episode as a result of this particular conflict.  That is against a backdrop of her past episodes of depression, and a very long-term, therapeutic relationship with Ms H.

15. The concern, of course, is the impact Ms Roberts’ mental health has on E, and it leads me to conclude, only in this short-term period, that the time spent with the men should be suspended.  I can anticipate that will be very hard for them, and I want to emphasise to them, as well as to the mothers, that absolutely nothing can be taken from this to suggest the final outcome after I have the advantage of hearing all of the evidence and all of the submissions. 

16. I am fortified in this view today, as a temporary measure, by Mr P’s options, one of which was a short “abeyance” of orders.  In the short-term period, his caregivers can calmly re-establish the equilibrium required to care properly for him.  The disruption to E’s relationship with the men is one that can be remedied by a sensitive reintroduction of time, in the event that I conclude that their relationship is essential to his best interests.  Again I emphasise that this short interruption to that relationship should not be taken to indicate in any way what the future outcome might be.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  15 February 2010