Ager and Raw

[2009] FamCA 322

FAMILY COURT OF AUSTRALIA

AGER & RAW [2009] FamCA 322

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

Re K (1994) 17 FamLR 537

APPLICANT: Ms Ager

RESPONDENT: Mr Raw

FILE NUMBER: BRC 10071 of 2008

DATE DELIVERED: 26 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 26 March 2009

REPRESENTATION

THE APPLICANT: Ms Ager appears on her own behalf

SOLICITOR FOR THE RESPONDENT:

Mr Reddy

J Reddy & Co

Orders

IT IS ORDERED THAT

1. The further hearing of this matter be adjourned for further hearing before Justice Murphy at 2.15pm on 16 July 2009 in the Brisbane Registry of the Family Court of Australia.

2. The interests, in these proceedings, of the children, J born … July 1997 and M born … May 1999 (“the children”), be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

3. To the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish a part of the account of the proceedings today, namely the Reasons for Judgment given by Justice Murphy today and the Report of Ms T dated 24 February 2009 to any medical practitioner or reporting psychiatrist whom the Independent Children's Lawyer considers appropriate.

4. Each party shall do all such things, sign all such authorities and documents, and attend all such consultations as might be necessary so as to:

   a.participate in interviews with a reporting psychiatrist nominated by the Independent Children's Lawyer so as to permit such psychiatrist to provide a report to the court;

   b.to permit the Independent Children's Lawyer to speak to any medical practitioner providing treatment to either of the children or either of the parties, with any contact between the Independent Children's Lawyer and the medical practitioner/s for either party, strictly limited to any issues related to the psychological or mental health of each of the parties, and/or their capacity to parent the children;

   c.so as to permit Ms T to speak to any treating medical practitioner, either of the children, or either of the parents, with such authority in respect of the parents, limited strictly to any issues relating to their psychological or mental health and/or their capacity to parent.

   d.IT IS FURTHER RESPECTFULLY REQUESTED that the Director of Legal Aid Queensland give consideration to the provision of Legal Aid so as to allow the psychiatric report contemplated by these Orders to be obtained and further so as to provide further legal assistance to the father in respect of these proceedings in light of the complex medical issues affecting the children and mental health issues the subject of the proceedings in this court.

5. Pursuant to Section 62G of the Family Law Act, Ms T, Family Consultant, Child Dispute Services provide an updated report in light of any further information provided to her by the Independent Children's Lawyer and the psychiatric report contemplated by these orders, prior to the further hearing of this matter on 16 July 2009.

   a.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents/documents related to this matter.

   b.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

   c.The parties shall do all such things, sign all such documents, pay all such reasonable fees and attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for the preparation of the Family Report.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The children spend time with the father from 3.00pm after school on Friday to before school on Monday morning each alternate weekend with such time to commence on Friday 2 April 2009.

2. For the purpose of facilitating such time, the father shall collect the children from school on the Friday and return the children to school on the Monday.

3. The parties forthwith establish a communication book, to which each of the parents contribute, in which each of them record all matters that they regard of significance to the care and parenting of each of the children.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 Ager & Raw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10071 of 2008

MS AGER

Applicant Mother

And

MR RAW

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. Earlier proceedings in this Court in respect of parenting orders for J, born in July 1997, and M, born in May 1999, have resulted in a comprehensive family report having been prepared by Family Consultant, Ms T. 

2. That family report, and the issues joined between the parties, identifies the husband's past and current mental health status as being a significant issue in the proceedings.  Ms T flagged the desirability of having information from the father’s treating psychiatrist. 

3. On 2 March 2009, when this matter was previously before me, there was some cautious optimism expressed about the possibility of resolving this matter by discussion between the parties.  To that end, Ms T offered to help facilitate that process and the parties subsequently attended before her on Tuesday, 17 March 2009 for without prejudice discussions.

4. No agreement was reached at that time and the matter therefore returns to me for further management. 

5. It will be appreciated that, in circumstances where there was some optimism, albeit cautious optimism, expressed about the possibility of resolving disputes by agreement, which is always a desirable outcome for co-parenting arrangements between separated parents, the Court was reluctant to embark upon the obtaining of evidence that may prove either detrimental to the process of discussion, or which would involve the parties (or government instrumentalities and the Court) in additional expense. 

6. A report has been received from Dr G annexed to an affidavit of the father's solicitor.  The report appears to be dated 4 March 2009. 

7. Dr G is employed in the public system and attached to the Metro North Health Services District Mental Services.  It seems that, during an approximate 18 month period, the father had contact with the mental health service on about eight occasions at one to three monthly intervals. 

8. Dr G had access to photocopied records of the C Hospital and she describes these as being "in a somewhat disorganised state" and “the information is not as easily accessible as within the original".

9. The doctor goes on to express views about a potential diagnosis of the father.  She was not convinced (as had apparently otherwise been suggested) that he was suffering from a schizo-affective disorder or schizophrenia "on the basis of what I personally have observed".  She was of the view that the diagnosis might more properly be:

   "a major depression resolving into an adjustment disorder within the context of a rather paranoid personality which can decompensate into brief psychotic reactions with environment stress or particular substances." 

10. Dr G pointed out that she did not have access to the father's forensic history.  She says, "Unfortunately I cannot find any evidence in our records to clarify whether this has led him to be a risk of violence to others."

11. The doctor also refers to the father's past use of illicit substances but goes on to refer to him having changed his lifestyle approximately five years ago and to the father’s assertion that he no longer abuses any substances.

12. Under the heading "[The father’s] current capacity to care for his children," Dr G is, understandably, significantly guarded.  She says, "I can only comment in a general way, based on what I noted at my last assessment of [the father] on 30 July 2008." 

13. The doctor notes within that context that:

    "[The father] did not keep any further appointments, I assume after July 2008, and this was not brought to my attention. I am uncertain of what follow up arrangements he had made for ongoing care or what his current level of function is.”

14. I mean no criticism whatsoever of the reporting psychiatrist, who, as I say, works within the under-resourced public mental health services, when I say that I agree with Ms T (who kindly agreed to make herself available to give further oral evidence in the hearing this morning) that the report of Dr G is, in terms of what either Ms T or this Court might have desired, is somewhat disappointing. 

15. It seems to me important that the Court receive good data from a psychiatric point of view.  The issues in this case clearly revolve around two central issues, or one central issue that has a number of components. 

16. The central issue for determination (or agreement between the parties) is ultimately the nature and extent of any risk posed to the children by the father’s mental health. 

17. The mother has been at pains to point out that she does not suggest that the father would harm her, or harm the children, in any direct, overt or violent way.  Her concerns revolve around his mental health status generally and what that might mean for the care of the children and, more specifically, around the significant special needs of each of the two children. 

18. In particular, M has been diagnosed with cystic fibrosis.  That debilitating condition means that considerable extra precautions need to be taken with her day to day care and a number of aspects of that have been highlighted by the mother, particularly by reference to medical reports, which are attached to an affidavit filed by her by leave this morning. 

19. In particular, the mother flags real concerns relating to dehydration, salt loss and the need for an air conditioned environment.  I assume, without having direct knowledge of all of the matters contained in those medical reports for the purposes of today's proceedings, that the issue is the extent to which the air to which M is exposed is dry as opposed to moist, the former being of benefit to her, the latter being of some risk to her as a result of her cystic fibrosis. 

20. J, too, has special needs. He has been diagnosed with Asperger's syndrome and, of course, it is axiomatic that, if that diagnosis is accurate, there are a significant number of issues with respect to his day to day care as a result. 

21. It is important, in order to arrive at a proper assessment of the nature and extent of any risk (including whether there is, indeed, a risk) to have as much independent expert data as is reasonably possible. 

22. The data or information from Dr G is (I say, again), without any criticism to her, not of sufficient scope or extent to provide the sort of information which is necessary to be taken into account in arriving at orders which are in the children's best interests. 

23. It is also clear to me that what needs to be done is for a number of, as it were, strands in this case to be drawn together.  In particular, it is important that someone obtains and centralises good, reliable historical information in respect of the father's mental health condition and/or status and to ensure that an experienced reporting forensic psychiatrist receive that information and conduct an assessment. 

24. In a similar vein, it seems to me important that Ms T, who has provided and will likely in the future provide a broad based social and family assessment, to have that information before her and the opinion of such a psychiatrist before her. 

25. That will involve an investigative process and, as I say, a centralisation of material and information.  That factor of itself, it seems to me, points to an independent children's lawyer in this case being of very considerable assistance, both to the Court, but more particularly to these two young children. 

26. In addition to that matter, it seems to me clear that, in terms of the factors that have been referred to in the decision of the Full Court in Re K (1994) 17 FamLR 537, that the following matters are important and significant:

    a)the mental health status of both parties but, of course, the father in particular;

    b)the risk of harm to the children emanating from any mental health issues;

    c)the special needs in respect of M’s medical condition and the special needs of J in terms of his psychological condition;

    d)the possibility of orders being made, at least in terms sought by the mother, of different time arrangements applying in respect of each of the two children.

    For those reasons it seems to me entirely appropriate that an Independent Children's Lawyer be appointed and I make that order in the usual terms. 

27. I will also respectfully request the Legal Aid Office at Brisbane to give consideration to providing further funding to the father in this matter by reason of the complexity of issues likely to arise from an appropriate examination of his mental health history, and any current mental health issues and the impact that may have on orders in respect of the best interests of the children. 

28. It will take about four to six weeks for the Independent Children's Lawyer to receive and process the file, and receive all the material. On the assumption that the Independent Children's Lawyer would then be highly likely to do what is necessary to have an independent psychiatric assessment prepared, I'll set this matter down again before me at 2.15pm on 16 July.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:                 

Date:              5 May 2009