Boccard and Boccard

[2012] FamCA 733

FAMILY COURT OF AUSTRALIA

BOCCARD & BOCCARD [2012] FamCA 733

FAMILY LAW – CHILDREN – where a report has been received from a Chapter 15 expert that the father represents a significant risk to the mother and children and fills the criteria necessary for an Involuntary Treatment Order – where it is prudent to discharge the order appointing the current Independent Children's Lawyer – an order that the new Independent Children's Lawyer make an urgent application to a Magistrate pursuant to s 27 Mental Health Act 2000 (Qld) for a justices examination order for the father.

Family Law Act 1975 (Cth)
Mental Health Act 2000 (Qld)

APPLICANT: Ms Boccard

RESPONDENT: Mr Boccard

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 436 of 2011

DATE DELIVERED: 30 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: not applicable

SOLICITOR FOR THE RESPONDENT: not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: not applicable

Orders

EX PARTE ORDERS AND NOTATIONS:

1. Orders 7, 8 and 9 made 8 November 2011 be discharged

2. The order for the appointment of the current Independent Children's Lawyer be discharged.

3. The interests of H Boccard born … 2002, C Boccard born … 2007 and V Boccard born … 2008 (“the children”) in these proceedings be independently represented by a lawyer and:

   3.1.It is requested that Legal Aid Queensland urgently arrange for a new Independent Children's Lawyer who does not reside in the X area to be appointed as Independent Children's Lawyer for the children and inform the Registry Manager of the Family Court of Australia at X of the details of that appointment;

   3.2.The current Independent Children's Lawyer as soon as possible provide her file to the new Independent Children's Lawyer;

   3.3.The Registry Manager of the Family Court of Australia at X as soon as possible photocopy all documents on the court file and the subpoenaed material and forward those documents to the new Independent Children's Lawyer.

4. As urgently as possible when appointed, the new Independent Children's Lawyer do all things and take all necessary steps to make an application to a Magistrate pursuant to s 27 Mental Health Act 2000 (Qld) for a justices examination order for the respondent/father by filing an application in the approved form with the registrar of a Magistrates Court.

5. The Independent Children's Lawyer is authorised to provide to the Magistrate all information that the Independent Children's Lawyer has in her possession including the following:

   5.1.The report of Dr M dated 28 March 2012.

   5.2.The report of Ms B dated 16 July 2012.

   5.3.The report of Dr M dated 21 August 2012.

   5.4.My Reasons for Judgment dated 30 August 2012.

6. Any previous order granting leave in relation to subpoenaed material be discharged.

7. Leave granted to the Independent Children's Lawyer to peruse and photocopy subpoenaed material. 

8. The parties who are self represented have leave to inspect subpoenaed material only in the presence of a security guard at the court. 

9. Leave granted to the Independent Children's Lawyer to issue updated subpoenas to X Hospital for records from March 2012 and to Dr G for records from April 2012.

10. After the Independent Children's Lawyer has complied with order 4 and the father has commenced to receive treatment (if any) as a result of any order made, the Independent Children's Lawyer is to serve a copy of these orders and my Reasons upon the mother and upon the father or (if applicable) the person in charge of any hospital or other care facility at which the father is a patient.

11. This matter be listed for a telephone mention on 17 September 2012 at 2.45pm. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boccard & Boccard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 436 of 2011

Ms Boccard

Applicant

And

Mr Boccard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am of the view that at the current time, the father may pose a serious imminent risk to the mother and the children.

2. The children H Boccard born in 2002, C Boccard born in 2007 and V Boccard born in 2008 have not spent any time with their father since 26 September 2011 and I shall discharged the order which I made which facilitated time between the father and the children at a contact centre. 

3. There is currently a domestic violence order in place which expires in March 2013. The father has been arrested by the police on two occasions for breach of the domestic violence order. The father was charged and convicted with a Commonwealth offence regarding using a postal service in August 2010 to send child pornography.

4. On 24 February 2012 the police arrested the father at his home arising out of reports that he was near the mother’s house on 21 February 2012 and came to her house on the night of 22 February screaming and yelling out rude sexual things and demanding the mother bring the children out to him. The mother said that the father repeatedly screamed that he would shoot her if she did not let him see the children (the mother did not ring the police as she thinks it is not going to stop him – “no one can stop [the father] from doing what he likes because he does not care about the law” (paragraph 19 of the family report)). 

5. This matter was transferred to the Family Court of Australia from the Federal Magistrates Court in X and came before me on the first occasion on 8 November 2011. On that day I noted a number of things, including:

   5.1.That appointments had been made for each of the parents to be assessed by a psychiatrist, Dr M, in March 2012.

   5.2.The father had been hospitalised for nine days in X Hospital in September 2011; that he had suicidal thoughts around that time; that he was diagnosed as having bipolar disorder; that he was under the care of Dr G from S Medical Centre.

6. On that day I ordered the preparation of a family report.

7. I subsequently received a Chapter 15 expert report from Dr M, psychiatrist, dated 28 March 2012. The doctor reported that as at the date that she interviewed the father (23 March 2012) the father exhibited a bipolar affective disorder and was in a manic phase. She opined that the father had suffered that condition for some years, although there had only been one admission to a mental health unit. She recorded that he had recently started on anti-psychotic medication but his psychotic beliefs did not appear to have lessened. Dr M recorded that there were significant concerns arising from the father’s belief that men who kill their children should have killed their wives and arising from the father’s expressed ideas of self harm.

8. I subsequently received the family report from Ms B.

9. Paragraph 17 of Ms B’s report is in the following terms:

   On 20^th and 21st February 2012 Family Report interviews took place. During the report interview, [the father] made three direct threats that he would kill or severely harm [the mother] if he was prevented contact with the children. He made multiple threats of suicide if he did not have the children returned to him.

10. The family report writer was sufficiently concerned to recommend that Queensland Police Department be engaged by the court to provide sufficient physical protection from the father and that the report be released to the father in controlled circumstances.

11. On 1 August 2012 I made orders in the following terms:

    1.The family report prepared by [Ms B] dated 16 July 2012 be released to the parties. I note this report was released to the Independent Children's Lawyer on 19 July 2012.

    2.I note paragraphs 131 to 136 and paragraphs 155 to 160 of the family report dated 16 July 2012 is in the following terms:

    131.[The father] was very clear about his intention to retaliate against [the mother] through harm or death if he was not able to have the children live with him. These threats should be taken very seriously. If it were really [the father’s] focus to protect and nuture the children, he would not make threats (flippant or otherwise) on their lives or that of [the mother]. While he did not commit to a single plan of action that he would take if he was not given time with the children, his willingness to outline and consider numerous methods of harm to her and the children raises the risk. 

    132.It is not necessary to have concrete plans of harm in order to be a high risk of harm to the children and [the mother]. This is because [the father] is impulsive, unstable and quick to intense reactivity. These factors in combination with [the father’s] absorption with his own thoughts and needs will make it more difficult for him to moderate his behaviour by considering others’ expectations, rules or perspectives.

    133.[The father] has made documented threats of suicide and ambiguous threats of harm to others since the date of separation from [the mother]. It is acknowledged that he has not to date either attempted suicide nor followed through on those threats of physical harm (though he harms [the mother] through control and harassment). However, over that time his threats have escalated in severity (now threatening death to [the mother] to others and her directly) and he has no fear or regard for the legal parameters put in place to prevent him from having contact. Compounding this is that [the father] has become more desperate owing to his social isolation, limited resources, poor health and older age.

    134.It is acknowledged that [the father] has not previously assaulted [the mother] or the children. More recently when [the father] arrived uninvited to the house he screamed from the street that she would be dead if she did not allow contact with the children. While it is possible [the father] may be making histrionic threats as a way of frightening others into his spending time with the children, he has never been in a situation of final decision making about his time with the children. Additionally, at [the father’s] current context of poor health, age, reduced finances and the legal limitations of the Protection Order, his remaining opportunity to gain feelings of superiority and importance he is familiar with, is to target [the mother] and the children. 

    135.[The mother] experiences anticipatory anxiety about the potential for [the father’s] retaliation against herself through either making allegations about her within the community or following through with his threats of harm against her. She alternates between feeling sorry for him, to feeling anger that he continues to frighten the children and wants to “make trouble” for her. There is some risk [the mother] may at times, under estimate what [the father] is capable of with regard to risk of physical harm to herself. Though on the other hand she fully appreciates the risk he may present to the children with regard to splitting their relationship from her. 

    136.Adequately reducing [the father’s] risk of threatened harm to [the mother] and the children is made very difficult by his lack of regard for the legal requirements to stay away from them. If the Court decided to prevent the children from spending time with [the father] or to commence supervised time a variety of protective strategies involving community agencies and QLD Police would need to be in place to prevent   likely harm of this family by [the father]. 

    …..

    Recommendations

    155.That the children live with the mother.

    156.That [the mother] have sole parental responsibility for the children.

    157.That the children spend no time with their father.

    158.That the father is not able to communicate with the children by telephone or letter.

    159.That Queensland Police Department are engaged by the Court to provide sufficient physical protection from [the father].

    160.That the Court does not release this Family Report until sufficient protective mechanisms are in place for [the mother] and the children.

    3.Orders 3, 4 and 5 made by the Federal Magistrates Court on 26 September 2011 be discharged.

    4.Pending further order, the mother have sole parental responsibility for the children [H Boccard] born … 2002, [C Boccard] born … 2007 and [V Boccard] born … 2009 (“the children”). 

    5.Pending further order, the children live with the mother.

    6.Pending further order, the father be restrained and an injunction shall issue preventing the father from:

    6.1.Communicating and attempting to communicate with the mother (other than through her Solicitors on the record) and the children in any manner whatsoever save as is provided in these Orders;

    6.2.Entering into or loitering near any premises in which the mother and the children reside from time to time;

    6.3.Entering into or loitering near any school, daycare, kindergarten premises, after school facility and the grounds of any such school, daycare, kindergarten or after school facility attended by the children from time to time;

    6.4.Entering into or loitering near any venue at which the children attend extracurricular activities from time to time;

    6.5.Attending any sporting premises where the children may be engaged in extracurricular activities; 

    6.6.Distributing and/or publishing any photographs of the children;

    6.7.Removing the children from any school, daycare, kindergarten premises, after school facility or other institution and the grounds of any such school, daycare, kindergarten, after school facility or other institution in which the children have been placed by the mother;

    6.8.Approaching, harassing or threatening the mother or the children in any way or attempting to do so.

    7.I request the Independent Children's Lawyer, as soon as is practicable, provide the officer in charge of the [X] Police Station, from time to time, and the Australian Federal Police with a copy of these Orders and Notations.

    8.I request the officer in charge of the [X] Police Station from time to time or any other officer of the Queensland State Police or the Australian Federal Police provide the mother and the children with any protection that that officer believes is appropriate, particularly in the event the mother advises them that the father is breaching this order (or the Queensland Magistrate’s Court order) NOTING that these orders allow for no contact to occur between the mother and father whatsoever.

    9.I request that the officer in charge of the [X] Police Station from time to time review the current domestic violence order in place between the parties and the children and if the officer forms the view that it is appropriate to do so that he make an application to the Queensland Magistrates Court for any order that he believes will provide the mother and the children will a higher level of protection than provided by the orders currently in place (including this order).

    10.This matter be adjourned to 10am on 17 August 2012 by telephone with the parties to be informed of the contact numbers.

    11.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.

12. On 17 August 2012 I ordered that the Independent Children's Lawyer provide Dr M with a copy of Ms B’s report and invite Dr M to make any comment that she would like in relation to the contents of the report.

13. Pursuant to that order, Dr M provided the court with a supplementary report dated 21 August 2012.

14. In her supplementary report Dr M concludes:

    I believe that [the father] does represent a significant risk both to [the mother] and to the children as categorised by Ms [B] and on those grounds would support the recommendation that there be no contact between him and [the mother] and also no contact between him and the children.

    It is my belief that he fills the criteria necessary for an Involuntary Treatment Order in that he suffers from a mental illness, that he has limited insight into his mental illness and is likely to be not compliant with treatment. It is my view that this lack of compliance represents a significant risk to his children and also to [the mother].

15. In my view, and without any reflection on the work done by the current Independent Children's Lawyer, it would be prudent given the risks that the father may currently pose, to request that Legal Aid Queensland appoint a new Independent Children's Lawyer who does not reside in the X area. 

16. In order to obtain an Involuntary Treatment Order (ITO) an application needs to be made in a State Court under State law. The relevant legislation is the Mental Health Act 2000 (Qld) (“MHA”). Section 27 allows for a person to apply to a Magistrate for a justice examination order. If made to a Magistrate, that is done by filing an application in the approved form with the registrar of a Magistrates Court.

17. Section 28 of the MHA says that the Magistrate may make a justices examination order only if the Magistrate believes:

    17.1.The person has a mental illness; 

    17.2.The person should be examined by a doctor or authorised mental health practitioner to decide whether a recommendation for assessment for the person be made; and

    17.3.The examination cannot properly be carried out unless the order is made.

18. The order is actually made in an “approved” form.

19. Section 29 MHA says that after such an order is made the registrar sends it with a copy of the application documents to the administrator of an authorised mental health service.

20. Section 30 MHA provides that the order, once made, authorises a doctor or an authorised mental health practitioner to examine the person to decide whether or not a recommendation for assessment for the person should be made. Section 30 MHA provides machinery to pick the person up (if necessary with the assistance of the police) in order to carry out that examination. The requirements in respect of the assessment are set out in sections 20 through to 24 MHA.

21. Once assessment documents are “in force” Part 4 of MHA applies. That part relates to detention as involuntary patient for involuntary assessment. Section 44 provides a person may be detained in an authorised mental health service for assessment for the assessment period, initially no longer than 24 hours but it can be extended.

22. Section 108(1) MHA deals with involuntary treatment orders and provides that if on assessment under Chapter 2 MHA an authorised doctor or an authorised mental health service is satisfied the treatment criteria apply to the patient, the doctor may make an order under s 108 MHA. If the psychiatrist made the recommendation for assessment he can’t be the same person who makes the order for involuntary treatment. Section 108(3) MHA sets out the form of the order and what it must state.

23. I do not have the power to make a justices examination order pursuant to s 27 MHA. On the material that I have (and most recently Dr M’s examination of the father) it seems to me that it is likely that the father is not currently being treated and/or complying with treatment for his mental illness. Given the opinion of Dr M in her report dated 21 August 2012 that it is her belief that the father fills the criteria necessary for an Involuntary Treatment Order, I shall make an order that the new Independent Children's Lawyer do all things and take all necessary steps to make an application to a Magistrate pursuant to s 27 MHA for a justices examination order by filing an application in the approved form with the registrar of a Magistrates Court. That lawyer is at liberty to present to the Magistrate all documents available to the Family Court, but particularly the following:

    23.1.The report of Dr M dated 28 March 2012.

    23.2.The report of Ms B dated 16 July 2012.

    23.3.The report of Dr M dated 21 August 2012.

    23.4.My Reasons for Judgment dated 30 August 2012.

1. Given the sensitive nature of material under subpoena, I remake orders that have been made in respect of access to that material.

2. The material available to the court is only current as to records from X Hospital to about February 2012 and to Dr G to about March 2012. The Independent Children's Lawyer should update that material.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 August 2012

Associate: 

Date:  30.8.2012