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  • Patrick - Guest or Intruder? ( Part 1/3 )
  • By Kate Legge
  • The Weekend Australian Magazine
    Page 1 of 3
  • 07/12/2002 Make a Comment
  • Contributed by: admin ( 30 articles in 2002 )
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A case in the life of a Family Court judge.

Justice Paul Guest was in his chambers on the 14th floor of Melbourne's Family Court building when he took a call from John Udorovic, who had appeared before him in a case where a lesbian mother sought to restrict a gay sperm donor from seeing their two-year-old boy. Udorovic, a QC, had foregone his usual fee to represent the father because he sensed that this was one of those cases which would stake out new legal frontiers with its challenge to conventional notions of family and parenting and the ethical dilemmas of reproductive technology.

Insiders dubbed it "the turkey baster" trial, a term that had to be explained to Guest, a former Olympic rower who has been exposed to the weird and wilder side of failed relationships but had never encountered such an unusual set of circumstances until this matter exercised his mind.

Among the stranger pieces of evidence was the lesbian mother's insistence that the donor father comply with 26 conditions governing contact visits, which were strictly supervised by one of her friends. There were limits on the number of photographs he could take and the number of unfamiliar toys, books, music or drinking cups he could bring with him, and a veto on the use of any familial terms that would suggest a paternal relationship. The mother complained that she was repulsed and distressed when her son returned home smelling strongly of the father's body odour, and required the co-parent to bathe the boy and douse him in aromatic oils. The court named the child "Patrick" to protect his identity.

Guest read widely, building up a binder file on the subject of gay families and artificial insemination. He had to stretch his mind around the fact that a child might have two mothers, or two mothers and a father, or two mothers and two fathers, or in a rare number of cases two fathers only, and the possibility within each of these models of an infinite variety of parenting arrangements. After nine days of evidence and careful deliberation of the issues involved, Guest dismissed the mother's application and ordered that the donor father spend more time with the child, who was comfortable in his presence and benefited from the interaction.

The Family Court issued a press release highlighting Guest's sympathetic call for legislative reforms to deal with "a new and rapidly increasing generation of children" being raised by gay and lesbian parents. The media made headlines of the finale to a trial that had attracted international interest from parliamentarians and activists wrestling with laws that lag behind the reality of same-sex couples.

The chief justice of the Family Court, Alastair Nicholson, prepared to highlight the judgment in an address he would give at a conference in Oslo, and legal journals began to sift through its ramifications.

For his part, Guest was relieved to wrap up what had been a particularly long and complex case, and after a short break he resumed the unenviable task of umpiring the more common cases of heterosexual conflict. He had no cause to reflect on how the lesbian co-parents were coping with the new arrangements, and when Udorovic rang him that day in August and said grimly, "Glue yourself to your chair", his first thought was that a colleague must have passed away.

In the ground-floor lobbies of the Family Court, the presence of metal detectors and armed security guards hints at violent emotions which could erupt at any moment. But in the hushed corridors of the judicial chambers, where access depends on security coded cards, sudden death from heart attacks or car crashes is more the measure of surprise. What Udorovic told Guest that day was shocking beyond belief. Twenty-four hours earlier, the "bright, happy and contented" little boy known as Patrick had been found dead with his mother, who had hanged herself on the back verandah of their home.

The judge sat alone in his chambers for several hours contemplating what had unfolded. As the afternoon faded, Udorovic rang him a second time. They had been colleagues at the bar and on many occasions Udorovic had appeared as Guest's junior counsel. Udorovic invited the judge to meet him at Catarina's restaurant in the centre of Melbourne's legal matrix, where they spent the next few hours searching for reasons why.

"He kept asking me, `John, is there anything I missed? Was there anything there that potentially suggested that anything like this could possibly occur?'" says Udorovic. "And I told him an emphatic `no' because I was asking myself the same question. There was nothing - even with the benefit of hindsight."

Guest returned to his chambers late in the afternoon as word of the catastrophe whipped through the court. The court media spokeswoman, Susan Gavaghan, was in Adelaide, where she had just discussed Patrick during a talk to court officers. Someone informed Chief Justice Nicholson, who amended his speech with a brief postscript acknowledging Patrick's death. The acting chief justice, John Ellis, contacted Guest to offer him support. Colleagues left messages. The more phone calls he received, the worse he felt. By early evening, he was deeply disturbed by how the law had collided with life. "People were so decent. I began to feel it was my fault," the judge told me of his attempt to come to terms with Patrick's fate.

CHILDREN DO NOT APPEAR BEFORE THE FAMILY COURT. A solicitor is appointed to represent them. Barristers may tender photographs or videos of their client interacting with a child, but judges are immune to the gilt and embroidery of Hallmark moments often manufactured by parents battling for custody of their children.
Father & SonPatrick and his father share an outing to Melbourne Zoo: their first adventure following the court order for an increase in access visits.

In the course of the trial, Guest permitted Udorovic to screen a video of a contact visit between father and son which showed Patrick playing cheerfully in a backyard, propelling a plastic car along the ground, his face alight with joy.

Guest was moved by the spontaneity of the father's interaction with his son. "This was so different from what we normally see," he says. "Most often we get videos where a parent prompts a child with, "Do you love me?" and the child says, "Yes". Then the whole charade will be repeated. "You really do love me, don't you?" and so on. But the video we saw was unforced and gentle and easy. It was just a little boy enjoying the most simple of pleasures with his father."

These pictures flooded Guest's memory on that Friday night as he sat at his desk and shut out thoughts crowding in on him. Night and its silence always magnify the horror that is masked by the distractions of daytime noise. He turned to the ancient Greek tale of Medea, tapping the name of the sorceress into the search engine of his computer and scrolling through the Internet for notes on Euripides' drama.

Medea tells the story of a woman who is betrayed by her husband, Jason, after she has borne him two sons. She is banished to prevent her injuring them out of revenge but she begs one day's delay and, after first killing her husband's new bride, she slays her two boys. The tragedy closes with the chorus:

"What we expected never came to pass, What we did not expect the gods brought to bear."

He reflected on his part in the death of a child whose future he had been asked to shepherd. "All you can do is deal with the evidence. You can't ordain the future," he told me, feeling the weight of his wig and robes.

Guest left his chambers that night reviewing his role in the Family Court: "I began to think that I would never be able to do another custody case. "Even so, the emotional churn did not deter him from turning up in court the very next Monday to do just that.

GUEST WAS APPOINTED TO THE bench in 1998 from the Victorian Bar, where he had a general practice but specialised in family law and complex property disputes. The law was not his first love and, even now that he is at the top of his profession, it complements the thrill he gets rowing with a crew of four or eight. At 63, he stands tall, with thick white hair tickling his collar, willow-pattern blue eyes and a muscular build, his skin bronzed and weathered by training outdoors all year round - not at all the bookish, bespectacled man of letters you might expect.

The day we met, the coffee table in his chambers was covered with colour photos of his various crews stroking the milk tea waters of Melbourne's Yarra. He was about to compete for champion-ship titles at the World Masters Games in Melbourne. His Who's Who entry glitters with various events from Olympic and Commonwealth Games and World Championships dating back to 1960.

Distracted by preparations for the Rome Olympics that year, Guest did not complete pre-med at Melbourne University and was steered into law by parents determined that their private-schooled son have a profession. These were the days when elite athletes were hobbyists and corporate sponsorship might amount to something like the six tins of chocolate Akta-Vite Guest received before competing in Rome. "I stuck it on everything, even my poached eggs," he joked of his bounty. Rowing has been one constant for him. He has been married twice, and the bookcases full of dark leather in his chambers are softened by snaps of his three adult children and three grandchildren thumb-tacked at random around the walls.

On the weekend after Patrick's death, Guest left his home only for his regular Saturday and Sunday morning training rows on the Yarra, returning again immediately these sessions ended. "I went underground," he admits. "I couldn't move out of my house." Justice Ellis telephoned him again on Saturday evening and Sunday to check on his welfare. So did Udorovic.

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