Beaumont and Timms (No.2)
[2018] FCCA 2889
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMONT & TIMMS (No.2) | [2018] FCCA 2889 |
| Catchwords: FAMILY LAW – Final parenting orders – father’s non-compliance with court orders and non-attendance for family report interviews – risk to child if father spends time with child – father’s concerning presentation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60DD(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D. |
| Cases cited: Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Stott & Holgar and Anor [2017] FamCAFC 152 |
| Applicant: | MS BEAUMONT |
| Respondent: | MR TIMMS |
| File Number: | MLC 5548 of 2012 |
| Judgment of: | Judge Harland |
| Hearing date: | 27 September 2018 |
| Date of Last Submission: | 27 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Glaister |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child of the relationship [X] born 2005 (“[X]”).
The father’s face to face time with [X] be reserved.
The Independent Children’s Lawyer be discharged.
All outstanding applications be otherwise dismissed, and the case removed from the list of cases awaiting determination of the Court.
NOTATION
(A)The Family Consultant, Ms B, notes at [50] of the Family Report dated 13 August 2018 that Ms Beaumont has acted protectively and consistently places [X]’s interests at the centre of decision making.
(B)The Independent Children’s Lawyer considers Ms Beaumont will facilitate [X] to have face to face time with the father in the future, initially supervised either by a professional supervisor or supervisory service, in the event the father demonstrates to the mother:
a.Compliance with the treatment regime recommended by his treating mental health professional or psychiatrist;
b.Compliance with prescribed medication;
c.Stability of his mental health; and
d.The mother considers [X] would be comfortable to spend time with her father.
IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Timms (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5548 of 2012
| MS BEAUMONT |
Applicant
And
| MR TIMMS |
Respondent
REASONS FOR JUDGMENT
This is a very sad case as the father clearly loves his daughter [X] and she loves him. Unfortunately, the only safe outcome for [X], given the current circumstances, is that the father spend no time with [X] and does not communicate with [X] or the mother.
After hearing submissions from all parties, I indicated that I would make the orders sought by the Independent Children’s Lawyer (“the ICL”) and would deliver written reasons, as given the father’s presentation, it would not have been feasible to deliver reasons orally in court.
The father will be aggrieved by these reasons as he continues to have no insight into the risk he poses to [X] and the negative impact his erratic behaviour has on [X].
This case concerns the best interests of [X], born 2005, who is aged 13. The mother filed the current application on 1 September 2016 seeking to discharge the final parenting orders made on 17 December 2012. The orders made in December 2012 provided for the parents to have equal shared parental responsibility and for there to be a shared care arrangement.
On 20 November 2014, the father filed an application in a case and an application for contravention. Those applications were struck out on 5 December 2014 when neither party appeared. The father had been ordered to arrange for the documents to be served on the mother.
In support of her initiating application filed on 1 September 2016, the mother swore and filed an affidavit where she deposed that the father told her, and she believes, that he had been diagnosed with post-traumatic stress disorder, major depression and schizophrenia schizoid disorder. She says that the father told her that he suffered an episode of thought disorder after taking LSD and smoking marijuana. The father told her that he had not been coping with finding his friend’s dead body after they had committed suicide. The father referred to this in his submissions before me. Understandably, this has had a profound impact on him. He said that [X] saw him crying and if that was a crime it was the only one he has committed. [X] being exposed to her father’s shock and distress at that time is not what the Court is concerned about.
The mother says that they commenced a relationship in … 2000 and started living together in about 2005. They separated on 28 October 2007. The mother has re-partnered and has a daughter, [C] to that relationship.
The mother says that the father has been violent towards her and says she deposed to that in the 2012 proceedings. She currently has a full intervention order in place protecting herself and [X] from the father. That order was originally made in 2014 and which she has subsequently had extended. The order is currently due to expire in 2019. She says that she has had to obtain several extensions of the intervention order because of several instances of family violence against her by the father. Often these incidents occurred in front of [X].
The father has been charged and found guilty of breaching intervention orders. She provides examples of his verbal abuse that often occurred in front of [X] and deposes to other concerning matters that [X] raised with her, which include the father making distressing comments to her and which are also manipulative of her. As a result of his escalating behaviour, the mother withheld [X] from the father for two weeks in January 2014.
The mother says that [X] has been engaging in psychological counselling since 2014 because of anxiety issues and urinary incontinence. She also says that [X] and the father have had several psychology sessions with Ms D. In September 2014 the concerns were such that the Department of Health and Human Services (“the Department”) interviewed [X].
The mother also annexes to her affidavit several disturbing text messages she has received from the father. When the matter first came before me for the first return date on 18 October 2016, I delivered reasons and I set out [2] to [6] of those reasons here:
2. Today is the first return date of the mother’s application to vary final parenting orders that were made in 2012 with respect to [X] born … 2005 who is now aged 11 (“[X]”). The father was personally served with the application on 14 September 2016 and signed the acknowledgment of service and attended Court today. He has not filed any material. The father’s presentation in Court was somewhat unusual. He was fairly agitated and clearly was not interested in either having constructive discussions either with Ms Jenkinson of counsel for the mother, or a duty solicitor or indeed with the Court but was rather insistent that he wanted an adjournment with no orders being made as he wanted private orders with the applicant. The father was quite aggressive and continually interrupting me when I was trying to explain the process. The fact is that the applicant is entitled to seek court orders in the absence of agreement, it was necessary to adjourn because of his disruption to the Court. He had indicated that he was going to see the duty lawyer but I am advised by Ms Jenkinson that security notified her that he left the Court building, and therefore I proceed in his absence today.
3. The applicant mother has filed an affidavit in support of her application to suspend the 2012 orders. Initially this morning she was seeking orders that still provided for the father to spend time with [X] but on a more limited basis and with another adult in substantial attendance. It is the mother’s case that the orders have not been complied with for some time and the father has a concerning history of mental health and behavioural issues. The mother’s solicitor helpfully issued several subpoenas, which have been inspected and Ms Jenkinson has summarised some of the relevant subpoenas which includes: when the father was hospitalised in the psychiatric ward of E Hospital in 2014 – from that time he has not had overnight time with [X]. He was diagnosed with schizoaffective disorder and depression and anxiety and Ms Jenkinson submits the hospital notes show that one of the difficulties with the father that he is non-compliant with medication and will then self-medicate with drugs which can induce psychosis in him, so it is very much an issue. As the mother sets out, a rollercoaster depending on whether the father is compliant with medication and well, and other times when he is not.
4. It is clear from the mother’s affidavit is that [X] is significantly detrimentally affected by these changes in the father and whilst the mother’s case is that [X] should continue to have a meaningful relationship with her father it needs to be safe and it needs to be mindful of her own mental wellbeing. [X] has problems with urinary incontinence and that appears to be that this could well be stress related. She is seeing a psychologist and has been seeing a psychologist since 2014 and continues to see her once a fortnight. The mother says that the father has had a couple of joint sessions with her. The mother also sets out concerning comments that [X] has made this year of things that the father says to her and these are set out at [39] and [40] of her affidavit. She also sets out text messages that the father has sent as well as annexing some of those texts. Some of the texts are just bizarre. They are difficult to follow and it certainly seems that there is some basis there for the mother’s concerns. In addition, the mother, significantly, has a five year intervention order in place and the father was convicted of contravening that order and was placed on a Good Behaviour Bond in 2015. The mother says she has had to seek extensions of previous intervention orders.
5. I am satisfied on the material that is before me which is, of course, the mother’s version without the father’s input – through his own choice – that [X] be at unacceptable risk of emotional harm if the orders were to remain in place. Given the father’s concerning presentation this morning, in my view, any time that the father spends with [X] for the moment would need to be supervised. The mother’s proposal had been for an adult to be in substantial attendance and for that time to be reduced but after the father’s presentation she simply seeks that the orders be suspended.
6. The father will have the opportunity to file material which he should have done before today given the application documents are clear which involve that a response is to be filed within 14 days after service. It is somewhat uncertain as to whether or not the father will file material and attend Court.
On that date, I made the following orders:
1. The proceeding is adjourned for Mention Hearing on 8 March 2017 at 9.45am.
2. The parties not be permitted to rely on material filed less than (3) three working days prior to the next Court event.
3. Any Subpoena material to be relied upon at the Mention Hearing must be made returnable at least (3) three days prior to the Hearing.
4. Pursuant to order 2 and 3 herein, leave will only be granted in circumstances of urgency.
5. The orders made 17 December 2012 be suspended.
6. The child [X] born 2005 (“[X]”) live with the mother.
7. That the father spend time with [X] as agreed and such time is to be supervised by a supervisor consented to by the mother.
8. The father file and serve a Response, Affidavit in support and a Notice of Risk within 28 days of this order.
The Department responded to the notice of risk filed by the mother. Their response is dated 14 October 2016. In 2014, the Department had substantiated concerns of emotional harm to [X] by the father and noted that the father had a period of stay at E Hospital as an inpatient due to his mental health. The Department concluded their involvement, noting that [X] was living with the mother and stepfather, and that the mother had been assessed as protective. The Department also noted that the father had engaged with mental health services, was complying with the treatment and recovery plan and had agreed for his contact with [X] to be supervised.
The matter was next before me on 8 March 2017. On that occasion, the mother was represented and the father attended in person. I made the Orders for the father to file material, for the appointment of an ICL, and the following Orders by consent:
1. That paragraphs 5, 6 and 7 of the Orders of 18th October 2016 remain in full force and effect.
2. That the father file and serve a Response, Affidavit in support and Affidavits of any witnesses upon which he seeks to rely within 42 days.
3. That the father attend upon a Psychiatrist as nominated by the Independent Children’s Lawyer for a psychiatric assessment with the cost of the assessment to be borne by the father and funded by Victoria Legal Aid if applicable.
4. That the father submit to random supervised urine drug screens within 24 hours of a request being made by Solicitors for the mother and/or the Independent Children’s Lawyer once appointed.
5. That in the event that the father fails to comply with paragraphs 2 and 3 of these Orders the mother have leave to seek Final Orders on an undefended basis on the next return date.
The father has filed one affidavit in these proceedings on 14 November 2017. He has not filed a response. It is a two-page affidavit. In that affidavit, he said that he seeks that his time with [X] be increased to one day a week and asks to be included in some of her before and after school activities, sporting events and practices. He says since 2014, after witnessing his friend commit suicide, he has suffered from PTSD and anxiety.
He said he continues to work with his counsellors and case manager at mental health services in relation to these issues and has also found medication and support very helpful. He further said he had remained compliant with the community treatment order he was subject to and that he had been able to secure long term accommodation suitable to have [X] visit and that he resided at that address with a friend who owned that property, who had been supervising his time with [X]. He said he had recently gained employment and was confident of being able to maintain his current lifestyle and continue to work on his mental health. He also expected to be able to increase his working hours over time.
He said he did not drink alcohol and that he exercised daily. He said that he was recording the visits and putting photos and making videos of their time together and intended to involve [X] with that project. He said that he was working in all areas of his life to improve his quality of life, so he can be a good role model to [X].
The matter came before me on 14 November 2017, with both parents appearing in person and the ICL being represented by counsel. I listed the matter for final hearing for two days commencing 13 December 2018 and ordered a family report and made various other ancillary orders. I also made the following Orders:
1. That paragraph 3 of the Orders made on the 8 March 2017 be amended to read: “That the father attend upon Dr E his treating psychiatrist on the 14 December 2017 at 12:00 noon or other date advised by the Independent Children’s Lawyer for the purposes of Dr E preparing a psychiatric report and to include the following:
how long the father has been a patient;
the father’s relevant history, diagnosis, treatment plan, prognosis and details relating to compliance with his medication regime;
any personality assessment of the father including details as to his presentation and functioning;
details as to how his psychiatric condition and functioning impacts on his capacity to parent and/or pose any risks to the child;
AND FURTHER such report be subject to the Independent Children’s Lawyer obtaining a grant of aid for the preparation of the report which requires father to complete a Financial Statement provided to him this day.
2. Within 21 days the father file and serve a Response.
3. The parents be at [X] to communicate with each other utilising the email addresses as follows:
a)Father’s email address: …@hotmail.com; and
b)Mother’s email address: …@gmail.com.
4. [X] to apply.
NOTATION
A. Paragraphs 5, 6 and 7 of Orders made on the 18 October 2016 remain in full force and effect.
The psychiatric assessment
The father attended for the psychiatric assessment with the psychiatrist nominated by the ICL in April 2018. It is clear from that report that he was not cooperative with the assessment process. Examples given in Dr F’s report include:
a)When asked about the post-traumatic stress disorder he referred to in his November 2017 affidavit the father replied that since being on medication his anxiety was fine. He refused to tell her what medication he is taking, only saying “it’s from the treating team”. He also told her that he “has no problems at all.” He complained that the mother is alienating [X] from him;
b)The father refused to answer any questions about his illicit substance use history;
c)The father refused to discuss his forensic history;
d)He admitted being on a community treatment order when Dr F mentioned that he referred to it in his affidavit, but refused to provide any other details apart from the fact that he attends a community mental health centre monthly and has a case manager;
e)He referred to seeing Dr E, psychiatrist, once every six months since 2015 but said that it was private and would not authorise her to obtain any information from him;
f)He refused to answer questions about his mental health and psychiatric history;
g)He refused to authorise Dr F to speak with his treating doctors; and
h)He refused to tell her what medications he is taking.
Dr F described the father as presenting with a guarded and paranoid demeanour with a restricted and irritable affect. In answer to her questions he would query the relevance, tell her it was private or tell her that he did not want to answer the questions.
Due to his uncooperative and obstructive behaviour at the interview, Dr F was unable to provide a comprehensive assessment of the father.
Dr F observed that it is likely that the father has a significant psychiatric illness if he is on a community treatment order as those orders are for involuntary psychiatric treatment. Typically, this would suggest a lack of insight with respect to the need for treatment. She further said his presentation suggested a paranoid schizophrenic illness.
She also commented that he showed limited insight with respect to the process of attending for the assessment and the purpose of court proceedings.
Given the father’s extensive psychiatric history, which I will refer to in more detail, and the father’s concerning behaviour, both with respect to his communication with the mother and the ICL and his presentation at court, it was vital for the father to cooperate with the psychiatric assessment in order to alleviate the concerns about [X]’s safety in his care. Simply turning up to the assessment was not enough. The Court’s concerns only increased, not decreased, as a result of that assessment, especially in combination with the other evidence and subpoenaed documents which were tendered as exhibits.
The family report
The father did not attend the family report interviews. The family report writer records that she contacted him by email and SMS asking him to contact her and offered him an alternative time, but that he did not respond. As a result of his non-attendance she was not able to observe him with [X]. She noted his non-cooperation with the psychiatric assessment and that at the time she prepared her report there was no treatment report available.
The reporter writer identified the following issues in her report:
a)The father’s mental health;
b)The father’s non-compliance with Court orders and treatment of his mental illness; and
c)The effect of the father’s behaviour on [X].
After setting out the history, the family report writer noted the mother’s proposal that unless the father takes his monthly Depot injection, his time with [X] should be suspended. The mother told her that when the father takes his medication appropriately, he functions better and in her words is “less likely to do the wrong thing”. She also stated her preference for his time to be supervised professionally rather than by his friend.
[X]’s preference is that she spend time with her father with a professional supervisor which could take place at a public setting, such as a park. She told the report writer that at times her father was good but during the most recent visit he was shouting. When she went to another room, he became frustrated and became worse. She told the report writer that she would like to try seeing her father with a professional supervisor, three or four times a year “to see how it goes”.
The report writer records that the father’s fluctuating mental health and behaviour has had a significant impact on [X] and that [X] finds it stressful to see her father because of his unpredictability and that his behaviour can be chaotic. [X] told the report writer that she thought that his behaviour had been better until recently and that she said that whilst Mr G (the father’s friend who supervises the time) makes it easier for her, he is unable to control the father’s behaviour.
[X] has been seeing a psychologist since 2015. According to her mental health plan she suffers from anxiety induced enuresis and anxiety attacks.
The mother raised concerns that the father does not comply with his medication and may use other medication and illicit substances to self-medicate. She said that [X] is having a difficult time at her current school and is desperate to change schools, which the mother is considering doing at the end of the year. She says that [X] is on the waiting list to attend Headspace and that she currently sees a psychologist at school.
The mother told the report writer that the father had been on an involuntary treatment order, requiring him to have Depot injections under supervision since 2016. She said she thought that the compulsory order was made voluntary because Mr Timms was hard to find and that the Mental Health Tribunal decided he no longer required compulsory injections. She said that the father was not happy with his mental health team and says that there is communication between his psychiatric nurse, herself and the father’s brother and that the nurse alerts her when he has not taken his medication.
She told the report writer that the paternal grandmother has an intervention order against the father. The father still visits her and takes [X] there at times and that the father can be quite nasty to his mother. The mother said she is happy to take [X] to see her grandmother when the father is not present. The mother told the report writer that [X] has less eczema than she used to but still has some problems with incontinence and understands that she feels under stress seeing her father.
The report writer referred to subpoenaed documents produced by Victoria Police and E Hospital. At [34] and [35] of her report she sets out the following:
Mr Timms’ first formal contact with psychiatric services was in December 2014. In 2015, he was diagnosed with schizoid affective disorder. In August 2017 he was admitted to E Hospital. Notes record:
“Mr Timms mood presents as labile – unable to display any insight into his current presentation.
…Thought disordered, suspicious, refusing to remain in hospital or to comply with treatment – insightless – risks escalating in the community.”
In an Application for a Compulsory Treatment Order it was submitted:
“Mr Timms needs to stabilise on a regular medication regime. Requires regular accommodation and connection to consistent outpatient treating team to allow him to achieve a level of functioning. Needs to abstain from poly substance abuse.”
The report writer also refers to the Department’s records which show that there were seven reports about the father’s behaviour and its impact on [X]’s emotional and psychological wellbeing between May 2008 and October 2016.
The report writer interviewed [X] who is in year 7. She talked about being desperate to change schools as she felt isolated and excluded from friendship groups. She said she feels very emotional at times and was seeing a counsellor up until last year but currently does not and does not know why. When interviewed, she said that she wanted to continue to see her father “for now” but if things got worse, she would like the time reduced.
Significantly, [X] told the report writer, in answer to a question about whether she wanted to choose when she saw him, that this would place her under more pressure from her father and she would prefer there to be orders in place. She spoke about the telephone contact that she has with him each week and says that she controls that and when he behaves badly, she does not speak to him the following week. [X] has relationships with extended family members on both sides.
The report writer noted that the matter had been litigated over several years, primarily because of the father’s variable mental health, which can manifest in incidences of family violence. [X] has grown up with this conflict and the report writer opines that her ongoing enuresis is likely to be a manifestation of psychosocial stresses.
At [51] she says the following:
The father does not feel compelled to complete the requirements of the Court, and there is material indicating that he is disinclined to comply with medication and treatment requirements. Since his mental health has been at the core of family violence incidents with [X] and other family members, it is essential he does comply with his treating professionals if [X] is to benefit from spending time with him.
The report writer stated that one of the benefits of professional supervision would be the opportunity for there to be an observation from an objective source, which could provide a report on the father's presentation and his interactions.
The report writer noted that the father was non-compliant with Court orders and there is material indicating that he is non-compliant with medical treatment as well.
She concludes her report at [55] stating:
The father does not feel compelled to complete the requirements of the Court, and there is material indicating that he is disinclined to comply with medication and treatment requirements. Since his mental health has been at the core of family violence incidents with [X] and other family members, it is essential he does comply with his treating professionals if [X] is to benefit from spending time with him.
She recommends that [X] spend professionally supervised time with the father two hours a fortnight, but that the father's time be conditional upon him demonstrating that he is complying with his treatment regime and that he has regular connections with an outpatient mental health team, and if [X] feels comfortable to spend time with him.
It is apparent that the father's conduct and mental health has deteriorated significantly since the middle of the year. Exhibit A is a bundle of correspondence tendered by the ICL. The ICL submitted that the father has not complied with any of the eight requests for random drug screens. In a letter dated 4 September 2018, the ICL raises this issue with the father and also with respect to the psychiatric report and the family report.
That letter also included a notice of address for service and asked him to update his contact details, as she was concerned that the Court did not have his current address, and he may not have received the reports. She emphasised that the matter was next in Court on 27 September 2018 and referred to his lack of response to her telephone calls and correspondence. She put him on notice that if she did not hear from him, she expected that final orders would be made on 27 September 2018, and she made a further request for drug screens.
The ICL also provided him with a copy of the notice of listing, the family report and a notice of address for service. She also referred to correspondence that the mother sent to the father about her intention to suspend contact until he advised that he was taking his medication, and she noted that she did not have the benefit of his views as to what had occurred. The next document in Exhibit A is an email from the mother to the father which she has forwarded to the ICL including a series of text messages that he sent.
In that email, the mother expresses concern about the father going about trying to have more time with [X] in the wrong way and refers to him making allegations that the mother had conducted illegal activities at her home while [X] was present. The email also refers to his recent statements that he was going to use tactics in Court to try and make the original Court orders void. She referred to the fact that he has been assessed by three psychiatrists, who have all diagnosed him as having schizo-affective disorder.
She told him that if he had concerns about her parenting, that he should contact the ICL and said that she was raising these issues, as she hoped that he would be able to reconnect with [X] and have a good relationship with her. She also referred to the Court date on 27 September 2018. The email he sent to the mother on 6 September 2018 is highly concerning. It includes making threats to her and hoping that she dies a slow, horrible and painful death. She included another text message from the father which says:
What a load of crap. My mental health is perfect and I've been discharged from off their bullshit CTO because psychiatrist’s [sic] are qualified at bullshit and have NO SCIENTIFIC EVIDENCE to support their bullshit. If you are staying [sic] that I'm a threat to [X], then produce evidence and not bullshit lies from your very mouth. There will be a resetting of the family law court orders, and I will be producing an affidavit to subpoena one item / thing from you that will prove that you were soliciting sex under the same roof as our daughter. That's an [sic] FEDERAL CRIME. enjoy your smugness. I will see [X], very soon, my way. P.S. I hope you enjoy paying rent cos I don't and I hope you have a property to build a house for our daughter [X]. If not, tough titties to you then. I have property and am building an [sic] house for her. Smug as fuck now aren’t I. And you still have no idea what money is so carry on and suffer your sufferances via your stupefying ignorance. Regards, $atan [sic].
There are further emails, which are not necessary to set out, which also contain offensive attacks and threats.
The mother sent an email to the father on Father’s Day that was written by [X] where she says she hopes he had a cool Father’s Day, that she loves him and asks him not to forget to take his medicine. He responded as follows:
Hi [X] darling. Well I’ve been trying so hard to talk to you but your mother has blocked my phone number deliberately so I can’t talk to you. I’m taking my medicine for my infected leg but how would you know that unless sum one [sic] is telling you lies about your dad again. I’ll see you after December darling, when the family law is set and then there will be no excuse that your mother can ever use against me ever again. I am very disappointed that you have been totally alienated from your Timms, family. Go and see your Grandma please darling. Loving you always, your REAL FATHER, [MR TIMMS] X0 [sic].
There are other abusive emails, including on 4 September 2018 which are highly derogatory of the mother, of the Court and of lawyers and medical professionals. He also sent an abusive and threatening email to the ICL in response to her informing him of the next court date. Again, it is highly derogatory and threatening:
To the piece-of-shit that has telexed these scribings [sic]. I PLEASE, do the RIGHT thing by mankind, put your neck in a noose and jump... The world’s 0xygen [sic] will immensely whunce [sic] you are no longer wasting, stealing and corrupting this world’s most precious, rare and finite resource of free, pure, unrefined, unmodified, TRUE AND CORRECT 0XYGEN [sic]. Mean while [sic], I’ll be watching closely for bereavement or Death notices for verification of your most noble, and honourable passing will be welcomed by disenfranchised fathers and mothers all over the world. Your passing, will not be vain and you will become famous for being so deadly wrong and MARTYRDOM beckons.
Exhibit B are the Victorian Police records produced on 20 September 2016. The police records confirm that they have no criminal history for the mother. There is a lengthy criminal history for the father that includes several family violence related offences, other violent offences and drug offences.
Exhibit C is [X]’s health records produced by her psychologist showing that [X] was referred to her on 20 May 2014 under a mental health plan. [X] attended regularly from then and throughout 2016. The subpoenaed notes were produced in September 2016. The handwritten notes are difficult to decipher. The mental health care plans refer to [X] having anxiety induced enuresis and anxiety attacks. Some issues relate to her father and things he says to her and others are with respect to bullying at school.
Exhibit D are records produced by E Hospital on CD. Those records contain several hundred pages of hospital records for the father. The records report on the father’s compulsory treatment order. When admitted to hospital on 4 December 2014 after being found by police, his mental state included “perplexed affect” and “significantly tangential thought form and suspected thought blocking” and he appeared to be having visual hallucinations. The records noted that it appeared that the father had symptoms for several years which had worsened in the previous months. The symptoms were improving with treatment.
Significantly, the records referred to contact from the Department indicating that [X] has been so distressed from the father’s behaviour in recent months that:
“she has been wetting herself at the thought of seeing him again. Throughout the admission, Mr Timms has consistently focused on his daughter as being his top priority, and the treating team do not consider him to be at risk of intentionally harming her in any way. However, her emotional distress as a result of his poor mental state indicates that she is at risk of significant (emotional/psychological harm) if he does not receive immediate treatment. Similarly, his mother became so concerned for her safety due to Mr Timms’s escalating paranoia and aggression that she felt unable to allow him to continue cohabiting with her. This suggests that she (and potentially others) may be at risk of harm if Mr Timms does not receive immediate treatment”
The notes refer to the father not accepting a diagnosis of any type of psychosis. A compulsory treatment order was required because of indications that there would be significant harm if he were to relapse and that he lacks sufficient insight into the fact that he has a condition that requires medication.
The discharge/transfer summary dated 10 July 2015 referred to the father’s mental state being stable with respect to psychosis since his discharge, that the father was working with his ex-partner to increase his time with [X] and that he wanted to do a parenting course to increase his chances. The notes also refer to the father being given psychoeducation with respect to [X]’s emotional needs and the time required for the mother and [X] to trust him again given his aggressive behaviour towards them when he was unwell. The father does not believe that he has a schizoaffective disorder. He believed he was unwell because of drug use. The notes dated 29 May 2015 refer to the father stopping lithium and weaning himself off his other medication as he does not believe that he has schizophrenia and that he only became unwell because of drug use. The review notes by the medical registrar records:
“I explained at length that we believed that Mr Timms did have a schizophrenia spectrum disorder, and that he required some amount of mood stabilisation or antipsychotic cover to ensure he did not relax. I explained that there was a very real risk of him relapsing without therapeutic levels of medications on board. I also explained that he was competent and voluntary, and that he could make the decision himself. He decided that despite the risks explained, he will continue to take some therapeutic doses of his medications, and that he did not want to be seen at the clinic anymore.”
The records state that the father has poor judgment with making modifications to his medications without consulting his doctors and that his insight is poor as he disagrees with his diagnosis despite extensive psychoeducation.
Included in the records is a letter from the father’s treating psychiatric registrar with respect to the breach of intervention order case. It refers to patients with schizoaffective disorder often having a period of several months, before it is detected by mental health services, where they have a decline in their cognitive functioning, an increase in emotional instability and psychotic symptoms including delusions and hallucinations. He recorded in the father’s case he “developed a complex network of paranoid delusions surrounding his ex-partner, her new partner, and his child.” This could have caused him to act inappropriately in 2014 and his opinion of the breaches of intervention orders occurring on 31 March 2014 and 4 November 2014 were likely to have “occurred in the context of him suffering significantly from his mental illness.”
The records show the father became significantly unwell again in 2017. He was placed on a temporary treatment order on 18 August 2017 with a Mental Health Tribunal hearing on … 2017. One of the stressors the father reports is the limited supervised time with [X]. The report on the compulsory treatment order application refers to the father’s first contact with formal psychiatric services being in December 2014 when the father presented in a similar manner to his current admission. He refers to the father having a history of self-ceasing his medication. He was referred to E Hospital by police after he assaulted his mother and breached the intervention order sending multiple text messages with odd comments to family members. The father told police “laws don’t apply to him as he is a sovereign citizen.” When admitted he was “thought disordered, grandiose and paranoid”. The father has poor insight into his mental health and a poor history of compliance with medication when he is a voluntary patient. The health records produced go up to 27 September 2017.
Exhibit E is the proposed orders by the ICL.
Counsel for the ICL advised that she had circulated the minute which she subsequently amended. The proposed orders were seeking that the father’s face-to-face time with the mother be reserved, and the removing of the orders with respect to telephone contact, the orders enabling the father to correspond with [X] via email and requiring the mother to keep the father informed via email. It also included notations referring to the family report and the family consultant’s comments that the mother has been acting protectively and that in the ICL’s view the mother will facilitate the father spending face-to-face time with [X]. This time would be, initially, professionally supervised, in the event the father demonstrates to the mother that he is compliant with his treatment regime recommended by his treating mental health professional or psychiatrist, that he is compliant with taking prescription medication, that his mental health is stable and that the mother considers that [X] would be comfortable, spending time with her father.
The mother supports the amended orders that the ICL seeks. After hearing from the ICL and the mother, I heard from the father.
He submitted that he attended the court-ordered psychiatrist and it was not his problem that she couldn’t make an assessment or an independent decision. He said that, in 2014, he suffered from a terrible crime, witnessing his housemate’s death. He said that the only crime that [X] has witnessed is seeing her father crying. He says that he has had [X] taken from him unlawfully and that it is his “unalienable right”, as her father, to see her. He complains that he has had minimal contact with her in the past four years and has only seen her five times this year and has not seen her at all in the past three and a half months.
I note that the mother suspended the father’s time, given concerns about his increasingly erratic and threatening behaviour. It appears that the mother was acting protectively.
Both parents appeared in person on 27 September 2018. The father’s presentation was highly concerning, and it was necessary to have several court security officers remain in the courtroom. It was also necessary to adjourn when the father was particularly disruptive. The father presented as highly agitated, defiant and defensive. When he first spoke, he insisted that his name was “general executor” and that he should be addressed as such and made multiple objections to evidence being misleading and “colourful” and interrupted the Counsel for the ICL’s submissions on several occasions.
The father complained that he does not know where the child lives and has not known for the past 10 years. He said that the mother is an ice addict and that the records state as fact that he has not committed any such crimes in front of [X]. He demanded to see his daughter as of today and said that he was not an evil person and there was no proof before the Court that he was and he said that it was all hearsay and that he would object to a Court of Appeal. He said that [X]’s incontinence was caused by the grandparents taking her to see the film The Book Thief and her being traumatised by seeing dead children on that screen. There is reference in [X]’s psychologist notes that [X] found that film too scary. It is also clear from the family report that [X] has had problems with her peers at school but a significant ongoing stress is spending time with her father when he is unwell.
[X] and the mother need to be relieved of the stress and uncertainty around the father’s unpredictable, and at times, violent behaviour.
It is not in [X]’s best interests for the proceedings to continue as the Court can have no confidence that the father will comply with court orders and properly engage in the proceedings.
Currently, the father sees this as a case about a mother alienating the daughter from the father and his “alienable rights” as a father being denied.
He challenges the validity of the proceedings and the evidence before it. The father characterises what he said from the bar table as being factual and objected to the evidence before the Court and submissions made by Counsel for the ICL as being misleading and inadmissible. The father has a limited understanding of the process and by his lack of engagement with the court process including the psychiatric assessment and the family report, the Court has little evidence from the father. Rather, the evidence that the court has is highly concerning as outlined in the psychiatric assessment, the family report and the subpoenaed notes, particularly from E Hospital.
Legal Principles and their application to the facts in this case
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents, having a meaningful involvement in their lives to the maximum extent that is consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
In the circumstances of this case s.60CC(2)(b) and the need to protect [X] from being subjected to or exposed to psychological harm or abuse or family violence takes precedence over the benefit of [X] having a meaningful relationship with the father. The evidence points to the mother and [X], as well as members of the father’s family, being exposed to family violence by the father when he is mentally unwell.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
[X] is 13 years old. She clearly loves her father but does not experience him as a safe person. I place significant weight on her views.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
I am satisfied that the mother has acted protectively and will continue to do so. She has facilitated the father spending time with [X] when safe for [X]. The concern is primarily with respect to her emotional and psychological well-being.
The father is unable to protect [X]. Due to his lack of insight into his mental health and the impact that his behaviour has on [X] when he is unwell means that his parenting capacity is compromised.
S.61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)).
The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
I am satisfied that presumption is rebutted and it would not be in [X]’s best interests for her parents to exercise equal shared parental responsibility.
The father has longstanding serious mental health issues. The father also has a long history of non-compliance with medication and mental health treatments and there have been periods where he has become so unwell he has had to be hospitalised. At times, he has also been the subject of involuntary treatment orders.
[X]’s best interests are the paramount consideration. I have to consider whether or not the father spending time with [X] places [X] at an unacceptable risk of harm.
In Stott & Holgar and Anor [2017] FamCAFC 152 the Full Court of the Family Court helpfully summarised the Court’s obligations when assessing unacceptable risk. Whilst the initial expression of unacceptable risk in M & M (1988) 166 CLR was with respect to sexual abuse, it also applies to other forms of risk. The Full Court stated at [35] to [37]:
35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A [1998] FamCA 25; (1998) FLC 92-800 at 3.15 and 3.25; Amador & Amador[2009] FamCAFC 196; (2009) 43 Fam LR 268 at [89].
36. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):[1]
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn [2006] FamCA 1316; (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FamCA 350; (2007) FLC 93-326 at [124] and [125]; Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344 at [66] and [67]).
I am satisfied on the evidence that [X] would be at an unacceptable risk if she is to continue to spend time with her father other than time professionally supervised at a contact centre, provided the father’s mental health is being treated and is stable.
I am satisfied that the only safe way for [X] to see her father is professionally supervised at a contact centre. It is unlikely that the father would engage with a contact centre. The father spending time with [X] will only be beneficial to [X] if the father receives consistent ongoing treatment for his mental health. Given his lack of insight and non-compliance to date, this is unlikely to occur. This is a sad outcome for [X] and no doubt very distressing outcome for the father, but there simply is no alternative.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 October 2018
Key Legal Topics
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Family Law
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Civil Procedure
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