Benz and Benz

[2007] FamCA 1582

FAMILY COURT OF AUSTRALIA

BENZ & BENZ [2007] FamCA 1582

FAMILY LAW – CHILDREN – Application by father to spend time with his 5 year old son – Father was diagnosed suffering bipolar disorder some years earlier – The psychiatric report discussed certain irritable and irascible behaviour on the part of the father, but not violence – Orders ultimately made by consent save for several issues left in contest – Appropriate orders made in the whole of the circumstances

Family Law Act 1975 (Cth)

APPLICANT: Mr Benz

RESPONDENT: Ms Benz

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1795 of 2006

DATE DELIVERED: 19 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 19 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Watson

SOLICITOR FOR THE RESPONDENT: Watson & McLeod

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Napier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Farrell Robertson McMahon

Orders

1. That the parties have the joint parental responsibility for the child B born … November 2003.

2. That the child live with the Mother.

3. The Father spend time with the child B as follows:

   (a)From Saturday 1.00pm until 5.00pm Sunday each alternate weekend thereafter;

   (b)From 2.30pm until 5.30pm each Wednesday until the child commences primary school, and from 4.00pm to 6.30pm each Wednesday thereafter;

   (c)If Father’s Day falls on a weekend when the Father would not ordinarily spend time with the child, then he will spend time with the child on that weekend and forgo the following weekend;

   (d)If Mother’s Day falls on a weekend when the Father would ordinarily spend time with the child, then the Father will forgo that weekend and spend time with the child the following weekend instead;

   (e)       For not less than three hours on the child’s birthday;

   (f)From 5.00pm Christmas Eve until 3.00pm Christmas Day in 2007 and each alternate year thereafter, the father to advise the Mother two weeks prior in writing if unable to spend this time with the child;

   (g)From 3.00pm Christmas Day until 5.00pm Boxing Day in 2008 and each alternate year thereafter, the Father to advise the Mother two weeks prior in writing if unable to spend this time with the child.

4. That within a period of six months to eighth months after the date of these Orders the parties attend upon a counsellor or mediator to discuss longer and extended periods for the Father to spend time with the child.

5. That for the purposes of changeover the parties shall meet at the W Child Contact Service, save and except for changeover in paragraph 3(b) until the child commences primary school whereby the Father shall collect the child from Day Care/Kindergarten at the commencement, and return the child to the W Child Contact Service at the conclusion.

6. Should the child’s Day Carer or Kindergarten refuse to engage with the Father due to unacceptable behaviour for the purpose of 3(b) herein then the Father shall spend time with the child from 4.00pm to 6.30pm with changeover to occur at the W Child Contact Service.

7. That the mother keep the Father informed of the name and address of the child’s Day Carer/Kindergarten.

8. That the mother do all things necessary to enable the Father to collect the child from Day Care/Kindergarten in accordance with these Orders.

9. That the Father continue to attend upon his treating doctor and continue to take medication as prescribed.

10. That the Father’s time with the child be conditional upon him providing to the Mother six weekly a letter from his General Practitioner confirming:

    (a)That he has been continuing to see the General Practitioner for treatment of his mental health issues.

    (b)That his General Practitioner has conducted blood screens to confirm the Father has been continuing to take medication prescribed for his psychiatric condition.

11. That the appointment of the Independent Children’s Lawyer be discharged.

12. That all extant applications be discharged.

13. That Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

14. That 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.

NOT BY CONSENT

1. That the father attend an anger management course and provide a certificate of completion to the mother’s solicitor within three months of the date of these orders.

2. That within 60 days the father pay to O’Farrell Robertson and McMahon the sum of $847 as reimbursement for the preparation of the psychiatric report.

3. That all applications be otherwise dismissed and be removed from the Pending Cases List.

4. That the ex tempore judgement be transcribed and placed on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 1795 of 2006

MR BENZ  

Applicant

And

MS BENZ  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me a Form 1 Application which was initially brought by Ms Benz (“the mother”) on 6 June 2006.  By that application she sought an order that she and the father have the joint responsibility for the long-term care, welfare and development of their son, B, who was born in November 2003.  She sought further orders that she have the sole responsibility for the day‑to‑day care, welfare and development of B, that the child live with her and that the father have contact with B from 4 pm to 6.45 pm Wednesday and on each Friday and from 4 pm Sunday to 4 pm Monday of each week with handover taking place at the M Child Contact Service.

2. The father caused to be filed a Form 1A Response which also appears to have been filed on 6 June 2006.  This is somewhat confusing.  I initially hesitated when introducing the mother's Form 1 Application as being filed on 6 June 2006.  It is also stamped 12 January 2005.  The father's Form 1A Response is also stamped 23 December 2005.  I can only assume that that might have been the filing date in the Magistrates Court.  However, be that as it may, and if I am wrong on that, it matters not.  The fact is, that is the process that brought the parties to court and prescribes the contest between them.

3. By his Form 1A Response, the father too sought joint long-term responsibility for the care, welfare and development of B and that the child live with the mother.  He sought “contact”, as it was then known, with B in the terms specified in the Response.  Thereafter the parties went through a period of litigation in this court.  I note that there was a Form 18 Application for Contravention brought by the father on 23 August 2006.  Quite a volume of evidence was filed which brought the matter up to the regional sittings of the Family Court of Australia at Mildura in April 2007. 

4. The matter came before me at those sittings where Mr Watson appeared for the mother and continues to appear this day.  The father appeared in person and Mr Melilli for the Independent Children's Lawyer.  The contested applications were negotiated at considerable length and in the result, it was ordered by consent that all extant applications be adjourned to the November 2007 sittings of the court.  Hence it comes before me this day. 

5. Significantly, additional orders were made by me until further order which took the situation from 9 May 2007 to this day where there was to be, if I may summarise it in the broadest of terms, an increase in time to be spent between the father and B from alternate Wednesdays for some two hours, supervised at the W Child Contact Centre, through to contact commencing 27 October 2007, from 1 pm to 5 pm Sunday and each alternate weekend thereafter, with changeover at the centre and commencing Wednesday, 31 October 2007, from 4 pm to 6.30 pm on each Wednesday thereafter.

6. It was further ordered and agreed that the father attend upon such psychiatrist as may be nominated by the Independent Children's Lawyer for the purpose of obtaining a psychiatric report and that he authorise the psychiatrist to furnish the report to the Independent Children's Lawyer who in turn would make available a copy to the mother's solicitor and to the court.  That order has been obeyed.  It was further ordered that the father continue to attend upon his treating doctor and to take medication as prescribed.  There is no suggestion that the order has not been complied with.

7. At the commencement of the proceedings this day, Mr Watson helpfully, I might say, informed me that the parties had complied with my earlier court orders and the contact had now gone to overnight contact from 1 pm Saturday to 5 pm Sunday.  The impression that I got, frankly, was that the parties had done very well indeed.  I appreciate that there are considerable differences between them, but I have no doubt whatsoever that both of them have the best interests of B at heart. 

8. There is a curious history to this matter in the sense that the parties met and shared a relationship in the early 1990s, as a result of which they had two children, C, who was born in July 1991, and L, who was born in June 1993.  The relationship broke up and they separated for about a decade.  During that time they each formed relationships with other partners and moved on with their lives.  However, they had a short subsequent reunion when the father attended the funeral of the mother's father which generated a rekindling of their relationship as a result of which B was conceived.

9. A significant aspect to the background is that the father was diagnosed with a bipolar mood disorder when he was about 24 years of age.  He had initial treatment at a psychiatric unit and was prescribed lithium for his condition.  He later, upon moving to North Western Victoria, came under the care of his current general practitioner, Dr S, and his medication was changed to Epilim.  There is on the court file an affidavit from Dr S with a report dated 7 May 2007. 

10. In his report, Dr S said that the father had attended his clinic since 3 February 2003.  At that time he was introduced suffering bipolar affective disorder characterised by episodes of severe depression alternating to verbal aggression until he was treated.  The medication at the time, as I said, was lithium.  Dr S reported on a series of "several ups and downs" suffered by the father over a period of time, but to his knowledge there had been no admission to a psychiatric ward and that the father had generally “kept himself well”. 

11. Dr S went on to say that the only adverse finding he could record was that it was his experience when faced with “life's perceived injustices”, the father could raise his voice and become angry.  He reported that he had not known the father to be openly aggressive or threatening.  He has had little contact with the father in the recent past because it was not required and that the last four visits he had with the father, (prior to his report of 7 May 2007) were in June and August 2006 and May 2007.  Prescriptions were last written in August 2007.

12. The parties have this day negotiated at arm's length, and again with the assistance of Mr Watson for the mother, Ms Napier for the Independent Children's Lawyer, and with the father in person, agreed upon a series of consent orders that will take them forward into the future with the father spending time with B.  They are detailed orders and it is my expectation that they will be complied with by both parties. 

13. I congratulate the mother and the father on working to the best interests of B in the formulation of these orders.  I appreciate that it is not an easy task for them and in my view they have both acted with dignity, with commonsense and with respect to each other and for the issues involved.  Orders of this nature can be labelled “fragile” unless they are viewed honestly, obeyed diligently and in good faith.  It is my expectation that they will be.  The parties will of course understand that the paramount consideration is the best interests of B, and it appears to me that these orders reflect that fact. 

14. There were, however, three matters that were not agreed upon and which were brought to me for my consideration.  They included that the father attend an anger management course, and who should pay the costs of the father's consultation with Dr G.  There was another matter concerning the father taking prescribed medication.  As a result of that dispute, and given what was at issue between them, it was urged by Ms Napier and Mr Watson that I consider the report of Dr G which is dated 10 September 2007.  I might add that it did not appear on the court file, which is more than annoying, and there must have been a breakdown in the communication somewhere along the track.  The only alternative I can look to is that it was not filed or it was filed by being remitted to the Family Court of Australia but not placed on the court file.  I am inclined to think that it was the former.  As a result of that submission, the matter was stood down and I read the report.

15. The report of Dr G is a most helpful document in which he recorded his assessment made at his consulting rooms on 10 September 2007.  He firstly dealt with the history of the current problems, the past psychiatric history of the father and other necessary matters, including personal history and those matters which necessarily underpin expert reports of this nature.  As to the mental state at examination, Dr G recorded that the father presented as “an agitated and casually dressed man”.  He said:

    “At the commencement of the interview he was quite distressed, frequently swearing and raising his voice, and complaining about feeling compelled to travel five hours from [North Western Victoria] to attend an assessment interview.  However, as the session progressed he became more composed, and later became apologetic about his "bluntness" which he said was more because of his distress talking about the Family Law issues.” 

16. It is doubtless to me that the father frankly discussed with Dr G the issues that worried him and which resulted in his recording that the father's affect was irritable and labile.  He said there was no evidence of any cognitive impairment or any current psychotic condition.  Dr G then dealt with his summary of various of the documentation.  He recorded some of the commentary of the mother from her affidavit of 6 November 2006, (the relevance of which, I might say, is beyond me) but otherwise went on to refer to more pertinent matters.  He considered a report of Mr P, who is a psychologist, and made the following notation:

    “Mr [P]'s report dated 21 July 2006 described [the father] as suffering Bipolar Disorder and behaving in a problematic manner, frequently turning up in his rooms without an appointment, sometimes demanding to be seen, very frequently screaming, shouting and threatening and being highly irrational.  However, he said that day [B] had been absolutely safe, and appeared to have enjoyed both day and overnight stays with his father.  However, Mr [P] considered that [the father]'s moods were so unstable and unpredictable that ‘on many occasions I have questioned my own judgment on allowing access to continue’.”  

17. That, as I highlight, is a report of May 2006, being some 12 months prior to the matter coming on before me in May 2007 and during which period of time additional material had been placed before the court.  Furthermore, the parties have travelled further down the avenue in the quest for resolution.  Dr G also made recordings from the affidavit of the father and Dr R, who referred to interviews in May and August 2006.  He reported that Dr R said that, in his opinion, the father presented “little or no harm to others”.  He noted that his behaviour was intimidating and, if observed by his children and/or others, “could create some distress”.  That too of course was in May and August 2006, well before the hearing in May 2007. 

18. Dr G referred to the family report of Ms N and the notation made by her that the child B appeared to have a very positive relationship with his father.  He noted that the Family Consultant concluded that the father's emotional state was very fragile and that he felt “frustration” at what he perceived as the mother's prevention of him having contact with the child.  That of course is difficult to understand given that it was the application of the mother, when first filed in the Magistrates Court, for the father to have contact with B.

19. The summary and opinion of Dr G is an interesting one in which, perhaps somewhat repetitively, he returned to and summarised various of the documents that he had considered for the purpose of the report.  In his evaluation, Dr G said that at interview the father presented as “an extremely angry” and distressed man who expressed “hostility towards the mother” whom he described in derogatory terms.  He observed that, although initially very agitated and angry, he became more composed as the interview progressed.  The father apparently voiced persecutory ideas in relation to his difficulties in establishing contact with B but he did “not demonstrate any unequivocal delusions or other psychotic symptoms”.  His mood was labile, dysthymic and irritable.  There was no evidence of any suicidal ideation.  He observed that the father maintained he had been compliant in taking the prescribed medication regime.  There was no evidence to suggest to the contrary. 

20. In his conclusions, Dr G said that the father had a definite history of bipolar mood disorder for which he had been appropriately treated.  He said that the father presented with “angry, labile and volatile affect” which, whilst no doubt accentuated by his alienation from the mother, was also a reflection of his underlying mood disorder.  He observed that despite the father's clinical presentation at interview, he “related very well to [B]”, as he understood it, during their contact times.  He had no reason to suspect that the father did not have a positive or affectionate relationship with B. 

21. Dr G suggested that as a condition of the father's ongoing contact with B, he should remain compliant with treating his mental illness, (and that issue has apparently has been resolved between the parties) and that he have regular monitoring.  Blood tests could give a fairly good measure of compliance.  He said it would be preferable for the father to be under the care of a consulting psychiatrist, observing that if he has a “good relationship” with his treating general practitioner (and I suspect he does) it would be reasonable for that to continue.  That is the extent of the recommendations from Dr G.

22. The issue as to payment of the cost of the report was that Ms Napier firstly submitted that it should be borne by the father.  Following argument, Ms Napier, submitted, on reflection, that each should pay one half.  Mr Watson, with his usual thorough submissions, pointed out that the wife was not legally aided and, further, that her present husband had been retrenched.  For his part, the father said that he has done everything he could and in complying with the orders he travelled to central Victoria.  He is prepared to pay one half.  In my view, given that this was part of the orders that brought the parties to a resolution this day, I take the view that each party should pay one half of those costs. 

23. The second issue was whether or not the father should attend an anger management course.  This was supported by Ms Napier who submitted that anger management issues arose from the report itself.  I do not see such a recommendation in the report.  Furthermore, and significantly, there was no suggestion of such a requirement at the last hearing before me in May 2007.  For his part, Mr Watson strongly urged upon me that there was “a consistent thread” of the appearance of the father being angry, threatening and intimidating.  He submitted that if he is to collect the child outside a contact centre and in ordinary presentation within the community with the child, it is important for him not to present in an angry and intimidating manner but present with a public appearance that was calm and resolute and not demonstrating confrontational demeanour. 

1. For his part, the father referred me to the Child Contact Service report of 3 May 2007.  There is no suggestion there that he had misbehaved himself, albeit that Ms Napier said that may have come about by reason of him being under the scrutiny of the Service itself.  That may be so, but he let loose, (if I may put it that way) when with Dr G and was under his scrutiny.  I would have thought that on all the times that he has been at the Centre and with the child, if he was to present in an angry, intimidating and threatening manner, it would have emerged over that long period of time which commenced in December 2006 and was certainly continuing until May 2007.  There was no suggestion of any material since May 2007 along the lines that he had reverted to a threatening or intimidating demeanour.

2. The impression I get from the Child Contact Service report is that B has respect and love for his father and has made, as is reported, numerous requests to leave the Service with his father, asking that he be permitted to go with him to the park, to “ride in his car”, “go to his house” and to be able to leave the Service with him.  It was reported that on one occasion when B became aware that the visit was due to finish, he became tearful and cried.  B's father comforted him and spoke to him about returning to see his mother.  There is no suggestion that he spoke in a disaffecting or disingenuous way. 

3. Furthermore, it was reported that the father had been heard encouraging B to return across to his waiting mother and discussed with B how he would “love to take him outside the Service”, but at the moment they needed to play at the Centre.  The report went on to say:

   “[The father’s] words of encouragement enabled the service to return [B] to his mother without becoming distressed.  The past two visits [the father] has encouraged [B] to take the toy or play dough that he and [B] have been playing with to show his mother.  This has allowed the visit cessation to end without [B] becoming distressed.” 

4. In further submissions, Ms Napier said that the only material she had to support that recommendation was the report of Dr G.  In my view that is far from sufficient.  Indeed, as I have read the report and the recommendations, he does not propose it.  Furthermore, it was not proposed in any earlier application.  Ms Napier agreed that it was not a consideration at the May hearing.  The father works in hospitality on a five-day week on quite long shifts.  He has had reasonably solid employment for a long period of time.  In the circumstances, I do not propose to make the order sought.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 17 January 2008