Beck and Anor and Beck and Anor
[2013] FCCA 72
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECK & ANOR & BECK & ANOR | [2013] FCCA 72 |
| Catchwords: FAMILY LAW – Parenting orders for 6 year old child ─ father’s mental illness and relevance to his capacity to care for child ─ mother concedes that child should live with paternal grandparents. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Rules2001 Federal Circuit Court Regulations |
| Cases cited: McCall & Clark (2009) FLC 93-405 |
| Applicants: | MR W BECK & MRS BECK |
| First Respondent: | MR R BECK |
| Second Respondent: | MS BAER |
| File Number: | DGC 3632 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 27 March 2013 and 4 April 2013 |
| Date of Last Submission: | 4 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 9 May 2013 |
REPRESENTATION
| Counsel for the Applicants: | Ms Ellaray |
| Solicitors for the Applicants: | Cathleen Corridon Solicitors |
| Solicitor for the First Respondent: | Unrepresented |
| Solicitors for the Second Respondent: | Unrepresented |
| Counsel for the Independent Children’s Lawyer: | Ms Sevdalis |
| Solicitors for the Independent Children’s Lawyer: | Agricola Wunderlich & Associates |
ORDERS
THE COURT ORDERS THAT:
All previous Orders in respect of the child, [X], born [in] 2006 be discharged.
The applicants, Mr W Beck and Mrs Beck, and the respondent mother, Ms Baer, have equal shared parental responsibility for [X].
[X] live with the applicants, Mr W Beck and Mrs Beck.
[X] spend time and communicate with the respondent mother, Ms Baer, as follows:
(a)On one weekend each month from 5 pm Friday until Sunday at 5 pm.
(b)For the first half of each Victorian gazetted school holiday period from 5 pm Friday until 5 pm on the following Friday.
(c)From 3 January to 10 January each year.
(d)For time to be agreed on [X]’s birthday and on the mother’s birthday.
(e)By telephone between 4 pm and 6.30 pm on two occasions each week.
(f)Time at Christmas in each year as agreed between the applicants and the respondent mother.
(g)At such other times as may be agreed between the applicants and the respondent mother.
The respondent father, Mr R Beck, communicate with [X] by letter, card, or email, on a reasonable basis but at the discretion of and with the scrutiny of the applicants or either of them and that the applicants encourage and assist [X] to respond to the father’s communications.
Within 14 days of the date of these orders the applicants and the respondent father, Mr R Beck, do all things necessary and sign all documents so as to apply for supervised time for [X] with Mr R Beck at [omitted] Contact Service at [omitted] but subject to these orders and the discretion of the [omitted] children’s contact service.
Upon the respondent father, Mr R Beck, receiving appropriate psychiatric assistance from a qualified psychiatrist or a mental health facility and providing an assessment from that psychiatrist or facility to the applicants that the father’s mental health is stable and it being appropriate for supervised time to commence at a children’s contact centre, then [X] spend time with the father at [omitted] contact centre and communicate with her father as follows:
(a)By telephone on two occasions each week as directed by the applicants.
(b)For two hours each fortnight supervised at [omitted] children’s contact centre, [suburb omitted].
The father comply at all times with the treatment program and/or courses of medication as prescribed and directed by his treating medical practitioners.
The respondent father, Mr R Beck, have liberty to apply in respect of his time and communication with [X] only upon filing an affidavit from his psychiatrist or the director of a mental health facility deposing that the father’s mental health is stable and that in the opinion of the psychiatrist or other appropriate person, unsupervised time for [X] with the father could take place but not before a period of at least six months supervised time as above has taken place.
The father advise the applicants in writing or by email within seven days of engaging with a psychiatrist or mental health facility giving the name and address of the practitioner or facility and that these orders entitle the applicants to provide the psychiatrist or mental health facility with copies of the following:
(a)The affidavit of Dr K, consultant psychiatrist, sworn 14 November 2012 together with the annexed psychiatric assessment;
(b)The Family Report of Ms F dated 18 December 2012;
(c)The trial affidavits of Mr W Beck and Mrs Beck; and
(d)A copy of these Orders and Reasons for Judgment.
The applicants, the respondent father and the respondent mother, by themselves or their agents are hereby restrained from:
(a)Denigrating any other party to or in the presence or hearing of [X] or permitting any other person to do so.
(b)Discussing these proceedings in the presence or hearing of [X] and from providing [X] with any documents filed in these proceedings or allowing any other person to do so.
(c)Physically disciplining [X].
Each party shall inform the other parties to these proceedings as soon as practicable in the event of [X] suffering any serious illness or accident requiring medical treatment.
The applicants authorise any school attended by [X] to provide the respondent mother and the respondent father with any information sheets, newsletters, school photo order forms or any other material usually afforded to parents provided that the respondent father be and is hereby restrained from attending at [X]’s school during school hours or for school events except with the express written or e-mailed invitation of the applicants or either of them.
The applicants provide the respondent mother and the respondent father with copies of all of [X]’s school reports within 14 days of receipt.
The appointment of an independent children's lawyer continue for a period of six months from the date of these orders and that these orders authorise the independent children's lawyer to communicate with and receive any information from Mr R Beck’s psychiatrist or mental health facility that may impact on the welfare, safety of [X] or [X]’s potential relationship with the father.
AND THE COURT NOTES THAT:
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Beck & Anor & Beck & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3632 of 2011
| MR W BECK & MRS BECK |
Applicants
And
| MR R BECK |
First Respondent
| MS BAER |
Second Respondent
REASONS FOR JUDGMENT
These proceedings concern one child, [X], born [in] 2006 (age six years). The applicants are the paternal grandfather and step-grandmother, Mr W Beck and Mrs Beck (“the paternal grandparents”). They apply to have [X] live with them.
[X]’s mother, Ms Baer, is a respondent and supports the orders sought by the paternal grandparents. [X]’s father, Mr R Beck, is a respondent and seeks an order whereby [X] live with him.
A major issue for the court’s consideration is the capacity of the father to care for [X], whether that be by way of her living with him or spending time with him, with specific reference to the father’s mental health.
At the commencement of the trial the court was informed that the independent children’s lawyer had a preliminary view evidenced by draft proposed final orders. Those proposed orders were presented to the court in the form of a document signed by the applicants, Ms Baer, and the independent children’s lawyer. The consensus between those parties was in the following terms:
(1)That the applicants and the respondent mother have equal shared parental responsibility for [X];
(2)That [X] live with the applicant grandparents;
(3)That [X] spend time with the respondent mother on one weekend each month from 5 pm Friday to 5 pm Sunday, for one half of the term school holidays, for one week in January of each year, and on special days and otherwise as agreed;
(4)That the father be at liberty to communicate with [X] by letter, cards, emails and sms messages (the grandparents had retreated from agreeing to sms messages by the conclusion of the evidence);
(5)That the father undertake psychiatric treatment at a mental health facility (as distinct from management by a medical practitioner) and continue with such treatment at the direction of his treating health professionals at the mental health facility, and for no less than three months;
(6)That the father take all medications as directed by his treating professionals at the mental health facility and follow all directions for treatment by them;
(7)That the grandparents and the father forthwith do all that is necessary to apply for supervised time for the father with [X] at the [omitted] Contact Service at [omitted];
(8)That upon the father providing the grandparents with a satisfactory report from the mental health facility indicating that his mental health is stable so as to make it appropriate for him to have supervised time with [X] at a contact centre then such time take place for two hours each fortnight and that there be telephone communication on two occasions each week;
(9)That there be injunctive orders preventing the parties from denigrating any other party, from discussing these proceedings in the presence or hearing of the child, and from physically disciplining the child;
(10)Otherwise orders authorising appropriate attendance at and information from the child’s school.
The grandparents were represented at the trial. The parents were unrepresented and had not complied with trial directions for the filing of affidavits and the matter proceeded by them giving viva voce evidence. Neither parent adduced evidence save and except that the mother caused to be tendered into evidence a series of Facebook communications between her sister and Mr R Beck.
The grandparents each filed affidavits and gave evidence. They were cross-examined extensively by Mr R Beck. The mother chose not to cross-examine either Mr R Beck or the grandparents.
The court was greatly assisted by the appointment of an independent children’s lawyer and counsel instructed. Further assistance was forthcoming from a comprehensive and considered family report prepared by Ms F who regularly prepares reports in family law matters and has social work qualifications.
A consultant psychiatrist, Dr K, provided an affidavit annexing reports of 1 October and 17 October 2012 in respect of his examination and assessment of the father, Mr R Beck. Dr K was cross-examined.
The independent children’s lawyer caused to be tendered into evidence substantial files from [omitted] Health in respect of the father’s various admissions and treatments in respect of his alleged psychiatric condition.
The grandfather and step-grandmother are 53 and 56 years of age respectively. There is no evidence to suggest that they are not otherwise than in good health.
The father is now 25 years of age and the mother 24. They were both teenagers when [X] was born in [omitted] 2006 and both just 17 years of age when Ms Baer became pregnant soon after their relationship commenced.
The parents separated in 2009 when [X] was three years old and amidst allegations of family violence perpetrated by Mr R Beck and serious mental health concerns for Mr R Beck both of which were vehemently and repeatedly emphasised by Ms Baer in her evidence from the witness box.
Ms Baer initially cared for [X] but in October 2010 the Department of Human Services became involved and placed [X] into the care of Mr and Mrs Beck. It followed that the mother spent time with [X] one night per month and the father’s time was supervised.
In November 2011 Mr R Beck over-held [X] and the grandparents commenced proceedings in this court initially seeking a recovery order. That order was made on 16 November 2011. On 23 February 2012 an interim order was made whereby Mr R Beck’s time with [X] be supervised by his mother, Ms B. Mr Beck was ordered to undertake a psychiatric assessment.
The relationship between Mr R Beck and his mother, Ms B, appears to have broken down and the supervised time arrangement ceased. The applicants have facilitated some irregular time for [X] with the father including at Christmas 2012.
Both applicants are in full time employment and they utilise family day care before and after school for [X].
The father lives independently in [omitted]. He has some work as a [omitted]. The mother has re-partnered and lives in a regional district in Victoria.
The Law
The issue before me is whether [X] lives primarily with the grandparents or with the father. The orders I am asked to make are parenting orders. It follows that I must have [X]’s best interests as my paramount consideration pursuant to Section 60CA of the Family Law Act 1975 (“the Act”).
Section 60B of the Act sets out the objects and the principles that relate to children’s issues and provided the best interests of children are met by:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Against the framework of section 60B, the Act at section 60CC sets out a number of mandatory considerations for the court to address in determining the child’s best interests. Those references are divided into “primary considerations” and “additional considerations”.
The primary considerations are:
1.The benefit to the child of having a meaningful relationship with both of the child’s parents;
2.The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Recent amendments to the Act have broadened the definition of family violence and expressly includes definitions of exposure of children to family violence.
The additional considerations in section 60CC(3) are numerous and pragmatically referenced to the evidence in each particular case. They are each considered below in respect of the probity of the evidence and the proposals of the parties.
Section 61C of the Act provides that, subject to any orders of the court, each of the child’s parents has parental responsibility for that child. Parental responsibility includes the making of long term decisions for children including matters such as education, religion and medical procedures and as distinct from the day to day decisions that need be made for children.
Under section 61DA of the Act, the court applies a presumption that it is in the best interests of the child for that child’s parents to have equal shared parental responsibility. That presumption does not apply, however, if the court is satisfied that there are reasonable grounds to believe that the parent of the child (or a person who lives with the parent of a child) has engaged in family violence or abuse of the child or another child. Alternatively, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In the matter now before me, and although he has filed no affidavits or case summaries, I infer that the father seeks to have parental responsibility for [X] and would discharge that equally with the mother. The tenor of his cross-examination and statements from the witness box were along those lines including his apparent support for the mother’s time with [X] despite her vigorous opposition to the orders that he seeks.
The independent children’s lawyer proposes, and the grandparents and the mother agree, that parental responsibility be shared between the grandparents and the mother but not include the father.
If the presumption of equal shared parental responsibility applies and is not rebutted then I am obliged to follow a course of consideration including whether or not the child spending equal time between the parents is in the child’s best interests and reasonably practicable. If the answer to either of those questions is in the negative then I must consider whether the child spending “substantial and significant” time with each of the parents is in the child’s best interests and reasonably practicable.
The Child’s Best Interests
Section 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents.
The Full Court in McCall & Clark[1] concluded that the proper approach for the court in making orders which assist a meaningful relationship for children with parents is both a prospective one and a qualitative one. That is the court must look to making orders which can be successful, beneficial and meaningful into the future. To do so, however it is necessary to consider the current state of any such relationship. The concept is a qualitative rather than a quantitative one. Relationships do not become meaningful or successful simply by reason of quantity of time.
[1] (2009) FLC 93-405
[X] has been spending time with her mother every four weeks. Ms Baer and the paternal grandparents indicate that this arrangement has progressed well. The evidence suggests that [X] has a proper understanding and recognition of her mother and the relationship between mother and daughter is assisted by an open and communicative relationship between Ms Baer and Mr and Mrs Beck. This will assist a meaningful relationship for [X] with her mother moving forward.
[X] has spent little recent time with the father. Mr R Beck has an extremely poor relationship with his father and his stepmother. His aggressive demeanour, language and facial expressions in court were demonstrable of his opinion of Mr and Mrs Beck. He seemed unable or unwilling to acknowledge the role that they have assumed in caring for his daughter save and except one expression of public gratitude to them during his final address, perhaps only at the instigation of the bench, and certainly at odds with the tenor of his language and his demeanour during the trial. It follows that there are consequences for [X] having a regular, frequent or meaningful relationship with her father whilst this attitude prevails and she continues to live with the grandparents.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
Mr R Beck concedes that he has had a violent temperament. He suggests that he may have addressed this situation. The evidence argues otherwise. His demeanour in court was almost always aggressive. His facial expressions suggested that he often had great difficulty in controlling that aggression and his feelings towards others even within the court.
Ms Baer’s evidence was almost solely directed to her own experiences of family violence at the hands of Mr Beck. She is reported by Ms F at page 11 of the family report as follows:
Ms Baer describes herself as still anxious about Mr Beck’s behaviour towards her and [X], that “I’m a worrier, but I don’t think as much about the issues each day now …. I’m still dealing with his violence. He’s going to kill someone or himself … Last weekend he came to (Ms Baer’s place of residence) and he tried to find me.”
Ms Baer describes incidents of family violence in which Mr Beck “had his hands around my neck. His mother had to drag him off …. Once he doused me with petrol and put all my clothes in a pile … He took all my clothes off and kicked me out of the house and into the street …”
There is evidence before me that Ms Baer has obtained an intervention order against Mr R Beck due to his continuing harassment of her and visits to members of her family during which time he has threatened those people.
Mr and Mrs Beck have previously obtained intervention orders against Mr R Beck
Mr Beck’s own mother and sister have obtained intervention orders against him.
Police involvement with Mr Beck has been regular over many years.
At paragraph 19 of his trial affidavit, Mr W Beck, deposes:
In the past when Mr R Beck is not medicated he becomes extremely aggressive and paranoid. Unfortunately that since initiation of proceedings it has become evident that Mr R Beck has not been taking his medication as he has, again, been displaying symptoms of paranoia and aggression. Since our initiating application filed 15 November 2011 Mr R Beck’ condition has worsened. For example, on 14 December 2011 Mr R Beck phoned me and stated openly “what would happen to [X] if you were both incapacitated?” and “nothing will come between me and my daughter”. On 15 January 2012 during [X]’s admission to hospital Mr R Beck was extremely aggressive towards me and acted in a very threatening manner. Mr R Beck also stated “you have crossed the line with [X]’s care”. At this time I walked away only to find Mr R Beck following close behind me trying to provoke me by calling me a “fucking coward”. On 24 January 2012 I received several text messages from Mr R Beck, in particular, one said “war horn” and two others that had no words but displayed a clock ticking.
The documents tendered from [omitted] Health reference Mr R Beck’s admissions from 2006. The notes are littered with references of violence, assaults, behavioural difficulties and suicidal ideation. They provide a sad but frightening cyclic history of admission, medication, failure to adhere to medication, consequent aggressive tendencies, and further admission or treatment.
Mr R Beck himself regularly alluded to matters of violence in his own evidence. He does so with an almost sanctimonious sense of self-justification and altruism towards the common good. He speaks of “killing” anyone that would harm his daughter although there was no evidence of any actual or potential harm. His statements in Court were frequently grandiose and aggressive.
Additional Section 60CC factors
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
[X] is just six years of age and should not be expected to understand the legal and health issues that are so fundamental to my determination as to her living arrangements.
Section 60CC(3)(b) - the nature of the relationship of the child with each of her parents and other relevant persons.
[X] was observed by the family reporter with Ms Baer and with Mr and Mrs Beck. Mr R Beck had been unable to get himself to the initial or a re-scheduled interview. A short direct interview with Ms F took place on the third attempt but she was unable to observe [X] with him.
Ms F’s observations were of [X] having a warm, comfortable, loving relationship with both her mother and her grandparents.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
Mr R Beck was at pains to emphasise his view that [X] should have a continuing and regular relationship with Ms Baer. However, he was not so accommodating towards his own father and step-mother. His aggression towards them was consistent and palpable. He was critical of them in the extreme, both personally and in their care of [X] over the past almost three years. I could not be confident that he would maintain a continuing relationship for [X] with her grandparents should the child live with him.
To the contrary, and despite the obvious difficulties, Mr and Mrs Beck have kept the channels of communication open for [X] with her father. Mr Beck allows regular phone calls. At paragraph 25 of his trial affidavit Mr Beck says:
That Mr R Beck texts me on average each week to speak to [X] which he does so by me placing the telephone on loudspeaker. I would like for Mr R Beck to have a relationship with [X] and spend time with her but only when he has addressed his mental health issues and can do so without causing harm to [X].
The grandparents seek orders which leave open the possibility or even likelihood of direct time between [X] and her father. They seek an order that all parties immediately make application to a contact centre in anticipation of that time happening. They ask only that Mr R Beck accepts help and maintains assistance with his mental health problems.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or other person (including grandparent) with whom she has been living.
All of the evidence indicates that [X] is settled and happy living with her grandparents. She has a regular relationship with her mother. She communicates with her father directly and there is some rare face to face contact. The change in this regime proposed by Mr R Beck would be dramatic. He lives alone. There is little or no evidence of the facilities that he proposes to afford [X]. I could not be confident that he is currently in a position to provide her with the stability, routine and standard of care that she needs. This child has endured the breakdown of her parent’s relationship. There has been involvement by child protection authorities. On her mother’s case, she has been exposed to family violence between the parents. She has moved to live with her grandparents. Any change in her living arrangements would need to be positive and to improve on the status quo which appears to be working extremely well for this young child.
Section 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with the parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and a direct contact with both parents on a regular basis.
This consideration is not relevant to the dispute now before me.
Section 60CC (3)(f) – the capacity of each of the child’s parents and any other person (including grandparent) to provide for the needs of the child, including emotional and intellectual needs.
Ms Baer concedes primary care at this stage to the grandparents and in doing so she concedes their capacity. Ms Baer argues that the father does not have a demonstrated capacity to care for [X].
Mr and Mrs Beck, on the evidence, are providing adequately and appropriately for [X]. They have taken on responsibility for her actual and financial support. Ms F at paragraph 35 of her report notes;
During the appointment for this report, the paternal grandparents, Mr and Mrs Beck Snr, presented as thoughtful and mature, demonstrating consistent, appropriate concern for [X]’s welfare, safety and development. They discussed her development in detail. Mr and Mrs Beck Snr presented as supportive of Mr Beck and Ms Baer’s involvement in [X]’s life but concerned to ensure her safety in relation to Mr Beck.
[X] was observed as a healthy well cared for child who presented as confident and articulate.
I am satisfied that Mr and Mrs Beck provide all of the skills, facilities and dedication for the care of [X].
The father’s capacity to care for [X] is directly relevant and impacted on by his own mental health. Dr K’s assessment in November 2012 is enlightening. Mr Beck himself presented a history of volatile mental temperament, substance addiction and behavioural problems. Dr K concluded Mr R Beck’s mental state as follows:
The overall indication was that of someone who had had an overt psychotic illness, and still had significant problems with his mental faculties. There appeared to be some negative emotional features consistent with the negative indices of Schizophrenia. There was no disorder of perception. His judgment was influenced by the psychosis. There was some subjective distress, raised tension levels, and feelings of anger. His behaviour showed someone who had indications of emotional disturbances, consistent with a past history of Substance Abuse, and a subsequent psychotic illness. There were no overt delusions or hallucinations.
Dr K concluded that Mr R Beck suffered a mental illness being Schizoaffective Disorder which comprises elements of both schizophrenia and mood disturbances. He described it as “a serious psychiatric disorder”.
Such a diagnosis is consistent with Mr R Beck’s medical records tendered into evidence.
Dr K could not provide an optimistic prognosis. He is of the view that Mr R Beck’s psychiatric ill health is likely to persist permanently and that he may only partially respond to antipsychotic medications.
The further difficulty, and a not unusual one, is the reluctance of Mr R Beck to accept the diagnosis. He denied the diagnosis to the family reporter. He offers alternative diagnoses including post-traumatic stress disorder which may have been discussed or suggested during some of his medical interventions. As a consequence of his lack of acceptance and insight into his own condition, he has regularly refused to adhere to prescribed and appropriate medication regimes. The effects on his behaviour are those that are noted by his father.
Mr R Beck was at pains in his evidence to deny the diagnosis of Dr K. He was reduced to referring to Dr K as a “hack” in his submissions. To the contrary, I found Dr K’s evidence to be considered, professional and learned. Dr K was prepared to look at other diagnostic options and agreed that some of the symptoms suffered by Mr R Beck were consistent with those other options. Nevertheless, Dr K maintained his diagnosis which is consistent with many notes in the medical records indicating a mental illness on occasions requiring involuntary treatment orders.
Taking the evidence as a whole, I can only conclude that Mr R Beck’s difficulties in dealing with his unfortunate illness will continue and will continue to be cyclic. I am satisfied that overall he does not have the capacity to care for his six year old daughter by reason of that mental illness.
Section 60CC(3)(g) – the maturity, common sense, lifestyle and background (including lifestyle, culture, traditions) of the child and either of the child’s parents and any other characteristic of the child the court thinks relevant.
This consideration is not relevant to my determination.
Section 60CC(3)(h) – being the child is Aboriginal or Torres Strait Islander.
Section 60CC(3)(i) - the attitude to the child, responsibilities of parenthood, demonstrated by each of the child’s parents.
It is clear on the evidence that these young parents were ill equipped as teenagers to enter into the adventure of parenthood. They are fortunate that they were able to enlist the assistance of Mr W Beck and Mrs Beck albeit reluctantly on the part of Mr R Beck.
Mr R Beck professes a great love for his daughter. I have no doubt that he is genuine in this regard and that his love for his daughter is deep and continuing. Mr R Beck presented as a fundamentally very intelligent, articulate and altruistic personality. He will have much to offer his daughter should he address his unfortunate mental illness. That illness causes extreme aggression, anxiety and agitation in his personality. There is a fundamental lack of insight into his own condition and the needs of his young daughter. Mr R Beck’s intentions and desires are admirable. He wants to parent his daughter. He wants to be the best possible father. Sadly, he does not recognise his own limitations at this stage and it is to be hoped that eventually [X] will benefit from a full and proper relationship with her father. The onus sits with Mr R Beck to make that happen.
Ms Baer has conceded primary care of [X] to the paternal grandparents at this stage. Given her own historical difficulties this is an appropriate and responsible thing to do and shows that she is able to prioritise [X]’s best interests over her own.
Section 60CC(3)(j) and (k) – issues of family violence and family violence orders.
These matters have been dealt with in detail above. Suffice to say that the father’s violent temperament and propensity for violence remains. It can only be hoped that proper medical assistance and medication will assist him to alleviate these tendencies and become the good father that he craves to be.
Discussions and Conclusions
Despite his denials and protestations, the force of the evidence leads me to conclude that Mr R Beck suffers a continuing mental illness. I accept Dr K’s diagnosis of a Schizoaffective Disorder. Dr K and the family reporter, Ms F, suggest treatment for Mr R Beck so as to stabilise his condition prior to even supervised time for him with [X]. My own observations of Mr Beck in the witness box and in court accord with those recommendations. These observations were of a volatile, aggressive and entitled personality. Supervision of time between father and daughter might provide physical protection for this young child but would not necessarily serve to protect against the emotional consequences of exposure to Mr Beck’s attitude and forceful personality.
Nevertheless, I am of the view that Mr R Beck has much to offer his daughter once his own condition is stabilised. He is worldly and intelligent. His love and devotion cannot be questioned. Rather, it is the unfortunate symptoms of his illness which manifest in an aggressive and obsessive nature. He has no current insight into these problems almost certainly because he does not adhere to prescribed medication regimes. The medical reports tendered into evidence demonstrate his positive personality traits when his condition has stabilised. Until this occurs, however, I see no benefit for [X] in having direct contact with her father even on a supervised basis. I can only hope that Mr Beck takes the comments and observations of Dr K and Ms F together with these reasons, in the positive and optimistic way that are in intended.
Equally, the paternal grandparents, Mr and Mrs Beck, both gave evidence that they will “leave the door open” and encourage a relationship for [X] with Mr R Beck once the medical issues are addressed. The question is whether the communication and contact and its form and limitations should ultimately be at the discretion of the paternal grandfather. I note that he has previously assisted with some direct contact between [X] and her father. There has also been telephone and written communication. These avenues should not be shut by injunctive orders and the discretion should remain with the grandfather at this stage. He presents as objective and understanding of [X]’s needs to know and have a relationship with her father whilst at the same time being protective of the child. Mrs Beck is similarly sympathetic to [X]’s needs and the potential of a relationship between [X] and Mr R Beck.
I am satisfied that the grandparents provide adequately for [X]’s physical, emotional and intellectual needs. There is a cooperative and communicative relationship between Ms Baer and Mr and Mrs Beck. There will be orders accordingly confirming that [X] lives with the grandparents and spends time with Ms Baer. There will be an order permitting written and telephone and email communication between Mr R Beck and [X] but only with appropriate scrutiny from the grandparents.
For all of the reasons set out above, Mr R Beck does not, in my view, have a current capacity to discharge parental responsibility for [X]. This situation may also change when his medical issues have been addressed. The grandparents and Ms Baer seek shared parental responsibility. Their good relationship should allow this to occur and it is in [X]’s best interests that her mother make a contribution to the decisions in her life. In respect of Mr R Beck, the presumption does not apply because of the numerous incidents of violence in his recent past. I stress that there is no allegation or indication that he has been physically violent to [X]. Equally, any presumption of Mr R Beck exercising parental responsibility is rebutted as being contrary to [X]’s interests for the reasons set out above.
The independent children's lawyer and the parties sought an order that the appointment of the independent children's lawyer be discharged immediately. Given the anticipation of Mr R Beck receiving some more medical intervention and perhaps supervised time commencing, I am of the view that the appointment of the independent children's lawyer should continue for six months, and that the independent children's lawyer be able to communicate with Mr R Beck’s medical practitioners in respect of matters which impact on [X].
The nature of the relationship between Mr R Beck and the applicants remain troubled and difficult. Mr R Beck presented in Court as empowered and demanding in asserting what he considered to be his “rights” in respect of [X]. Such an attitude could be at odds with the role that these grandparents have taken on with [X]. The child and the grandparents should have the dignity and privacy of being able to enjoy their household and lives without undue and spontaneous disruption. For these reasons, I agree that SMS communication between Mr R Beck and his father is not a preferred communication method for arranging communication between [X] and her father and hence that such communication channels be limited to letter, card and e-mail or actual telephone calls when appropriate.
I am satisfied that assessment from a psychiatrist or a suitable mental health institution properly informed is a necessary pre-requisite to direct communication and supervised time between [X] and Mr R Beck.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 9 May 2013
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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