BOCCARD & BOCCARD

FAMILY COURT OF AUSTRALIA

BOCCARD & BOCCARD

[2013] FamCA 63

FAMILY LAW – CHILDREN – where the father has been charged and convicted with distributing child pornography – where the father has made serious threats to the mother and children – where the father is of the view he does not have a mental illness – whether the father poses an unacceptable risk to the children – where it was held to be in the best interests of the children to spend no time with the father and not to communicate with him.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Boccard

RESPONDENT:

Mr Boccard

INDEPENDENT CHILDREN’S LAWYER:

Mr Purcell

FILE NUMBER:

CSC

436

2011

DATE DELIVERED:

13 February 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

5 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fellows

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Purcell Taylor Lawyers

Orders, notations and requests

All previous parenting orders be discharged.
The mother have sole parental responsibility for the children H Boccard born … 2002, C Boccard born … 2007 and V Boccard born … 2009 (“the children”).
The children have no time with nor any communication with the father.
The father be restrained and injunction issue preventing the father from:
4.1.Communicating and attempting to communicate with the mother and the children in any manner whatsoever;
4.2.Entering into or loitering near any premises in which the mother and the children reside from time to time;
4.3.Entering into or loitering near any school, day care, kindergarten premises, after school facility and the grounds of any such school, day care, kindergarten premises, or after school facility attended by the children from time to time;
4.4.Entering into or loitering near any venue at which the children attend extra curricular activities from time to time;
4.5.Attending any sporting premises where the children may be engaged in extra curricular activities;
4.6.Distributing and/or publishing any photographs of the children or any writings in which the mother and/or the children are mentioned.
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.
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.
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).
The Independent Children's Lawyer is to send a copy of these orders and my Reasons to the Department of Communities, Child Safety and Disability Services.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment 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

REASONS FOR JUDGMENT

INTRODUCTION

The father seeks to spend time with and communicate with his three children who are currently aged ten, five and three. The father has been diagnosed with a severe mental illness which he currently does not recognise. The father has recently pleaded guilty to an indictment involving forwarding to the mother child pornography material for which he received a suspended sentence of six months imprisonment with the condition that he be of good behaviour for three years.
The father has said and written some highly derogatory things about the mother. The father says that he is immensely sad at the fact that he has not been able to see his children for a significant period of time.
The main question in this case is the level of risk that the father poses to the children and whether or not the second primary consideration (s 60CC(2)(b) Family Law Act 1975 (Cth) (“FLA”)) is of such weight that it overbears the first primary consideration (the application in this case was filed prior to the introduction of the recent amendments to Part VII FLA but the result would be no different even if the new legislation had applied in this case).
I will find that the father poses an unacceptable risk to the children on a number of levels.

APPLICATIONS

The mother is seeking sole parental responsibility and that the children live with her and spend no time with the father. She seeks injunctive orders against the father. The Independent Children’s Lawyer supports the mother’s application.
The father is seeking equal shared parental responsibility. In his interview with the Family Consultant, the father “proposed that the children live with himself [sic] and have no time with [the mother]”, but he did not maintain that position at the final hearing. He agrees the children should live with their mother, but seeks that they spend time with him every weekend.
The father orally amended his application in relation to seeing the children; he initially sought to spend time with them from Friday afternoon to Monday morning; he later changed his application to 4pm Friday to 5pm Sunday every weekend and to keep that same regime going during school holidays.

DOCUMENTS RELIED UPON

The applicant mother relies on the following:
8.1.Initiating Application filed 28 July 2011
8.2.Mother’s affidavit sworn 30 August 2012
8.3.Mother’s affidavit sworn 26 July 2011
The respondent father relies on the following:
9.1.Response to Initiating Application filed 14 September 2011
9.2.Father’s affidavit sworn 14 September 2011
The Independent Children’s Lawyer relies on the following:
10.1.Affidavit of Dr M sworn 3 April 2012
10.2.Supplementary letter from Dr M dated 21 August 2012
10.3.Family Report of Ms B sworn 16 July 2012
10.4.Affidavit of Mr P sworn 19 October 2012 annexing a supplementary letter from Dr M dated 16 October 2012.
10.5.Various documents from those produced under subpoena by relevant authorities.

SHORT HISTORY

The father was born in 1946 and is now aged 66 years.
The mother was born in 1973 and is now aged 39 years.
The parties commenced cohabitation in August or September 2001 in overseas Country Z.
The parties’ first child H was born in 2002 and is now aged ten years.
The parties married in January 2003.
The parties’ second child C was born in 2007 and is now aged five years.
The parties immigrated to Australia in 2007.
The parties’ third child V was born in 2009 and is now aged three years.
The parties separated on 1 July 2010.

CREDIT

Mother

The mother gave evidence in a straight forward manner. The father chose not to ask her any questions. It was not suggested to her that she had any of the faults that the father had previously set out both orally and in writing. I do not fully accept the mother’s explanation about why she allowed the father to come into contact with the children when there was a protection order in place (as I will explain, I find the father still has some level of coercive control over the mother).

Father

I had little confidence in the father’s ability to accurately report historical events. I accept Ms B’s assessment that the father can present in a charming and beguiling manner so that his true position is not fully revealed. Clearly the father told untruths to Mr N, the registered nurse who came to assess him after the Justices Examination Order was made (I deal with that event in more detail below).

Conclusion in relation to credit

Where there is any variance between the father’s and the mother’s version of events, I have no hesitation in accepting the mother’s version.

DETAILED CHRONOLOGY

The father was born in 1946 and is now aged 66 years.
The mother was born in 1973 and is now aged 39 years.
Around 2000 the father placed an advertisement in a local Country Z newspaper seeking a wife. The father deposes “this is common practice in [Country Z].”
The parties commenced cohabitation in August or September 2001 in Country Z.
The parties’ first child H was born in Country Z in 2002 and is now aged ten years.
The parties married in January 2003.
The parties’ second child C was born in Country Z in 2007 and is now aged five years.
The parties immigrated to Australia in 2007.
The parties’ third child V was born in Australia in 2009 and is now aged three years.
The parties separated on 1 July 2010.
In August 2010, whilst he was overseas, the father sent a sequence of letters to the mother which contained child pornographic material. On his return to Australia he was charged with offences relating to that pornographic material and was released on bail.
On 17 October 2010 the mother allowed the father to see the children at her home under her supervision.
On 13 January 2011 a Temporary Protection Order was granted in favour of the mother against the father.
In 2011 a final Protection Order (“DVO”) was granted in favour of the mother against the father. That Protection Order expires in March 2013. Despite this, the mother allowed the father to spend time with the children overnight on two or three occasions. She says she “mistakenly thought that [she] had to let [the father] see the girls” because “the Court had not included them as named persons.”
In April 2011 the father was convicted for breaching his bail.
On 21 June 2011 the father’s then solicitors wrote to the mother and proposed that the two younger children live with the father on weekdays, and the eldest child live with him on the weekend.
In July 2011 the father was hospitalised in the Acute Mental Health Unit at X Hospital.
On 28 July 2011 the mother commenced the proceedings which are now before me.
On 29 July 2011 Dr O of the X Hospital recorded a diagnosis of the father as “bipolar disorder and had a manic episode with psychotic features”. The father has annexed that report to his affidavit. Later that day, the father was discharged from hospital.
On 14 September 2011 the father filed a response in which he sought equal shared parental responsibility; conceded that the children live with the mother but sought to see them from Friday afternoon to Monday morning every week.
On 26 September 2011 Federal Magistrate Willis made interim orders giving the mother sole parental responsibility and making an order that the children live with her. The Federal Magistrate made restraining orders against the father in respect of communicating with the mother and the children; appointed an Independent Children's Lawyer; ordered a medical examination and transferred the matter to the Family Court of Australia.
The matter first came before me on 8 November 2011. I ordered a full family report and made interim orders allowing the children to see their father at a contact centre for one hour a fortnight. Although the parties undertook the intake procedures for the contact centre, no time was actually facilitated by the contact centre. As to why that was, the father was of the view there were “long waiting lists”. I suspect that was not the fundamental reason why the father did not attend at the contact centre.
In December 2011 an indictment was presented in the Queensland District Court against the father for using a postal service for child pornography material.
On 6 February 2012 the father was convicted of breaching a DVO.
On 20 and 21 February 2012, the parties were interviewed by the Family Consultant.
On 23 February 2012 the mother rang the Family Consultant and said the father had been at her home the previous night “screaming” and “yelling…rude things about sex.” The Family Consultant said “she said he repeatedly screamed that he would shoot her if she…did not let him see the children.”
On 24 February 2012 the father was convicted of a further offence of breach of bail and breach of DVO.
On 23 March 2012 Dr M interviewed the father. At that time she assessed him as “exhibiting a bipolar affective disorder and was in a manic phase”. Dr M also expressed concerns for the safety of the mother and the children (see Dr M’s report contained in her affidavit filed 11 April 2012 commencing at paragraph 50).
In late May 2012 the father pleaded guilty in the District Court in X to an indictment in relation to using a postal service to send child pornography material and received a suspended sentence of six months imprisonment with the condition that he be of good behaviour for three years.
I received the family report on 16 July 2012 and ordered its release only to the Independent Children's Lawyer on 19 July 2012.
On 1 August 2012 I ordered the general release of the family report and made various orders directed to the police services aimed at providing protection to the mother and the children.
On 21 August 2012 I received a letter from Dr M and on 30 August 2012, I made an ex-parte order discharging the order that potentially gave the children time with their father at a contact centre. Given the level of concern I had, I discharged the order for the appointment of the (then) Independent Children's Lawyer and requested somebody who did not reside in X be appointed. I made orders that the new Independent Children's Lawyer make an application to a Magistrate pursuant to s 27 Mental Health Act 2000 (Qld) for a Justices Examination Order and I directed that the Magistrate who was asked to make that order be provided with a copy of the material from Dr M, the family consultant and also be provided with my Reasons for Judgment dated 30 August 2012. On 30 August 2012 I provided ex tempore reasons making those orders and I incorporate them in these Reasons and set them out in Schedule 1 below.
The Independent Children's Lawyer made an application for a Justices Examination Order on 10 September 2012 and such an order was made by a State Magistrate.
On 12 September 2012 a registered nurse attended the home of the father and as a result of an assessment of the father carried out by that person, X Hospital declined to enforce involuntary treatment of the father.
The domestic violence order which is currently in place is due to expire in March 2013.

ORDERS AND NOTATIONS MADE ON 1 AUGUST 2012

On 1 August 2012 I made the following orders and notations:
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 [sic] 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 [sic] 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.

MAJOR ISSUES

The mother’s allegations the father has engaged in paedophilic activity

The mother makes allegations that the father regularly engaged in sexual activity with young boys when the parties lived in Country Z.
It is conceded by the father that after the parties separated, in the father’s communications with the mother, he told her he had been involved in numerous acts of paedophilia.
The parties separated in July 2010. The father in July 2010 went overseas for a period of three months. It was whilst he was overseas that he sent material to the mother of a pornographic nature, inter alia, involving assertions by him that he had been involved in numerous acts of paedophilia. He also sent the mother a number of drawings. One of them depicted an adult male with three children around him. One child is involved in fellatio on the adult; the adult is committing fellatio on another child; a third child is using a device inserted in the adult male’s anus. This material is contained in Exhibit 11. The father admitted to the Australian Federal Police (“AFP”) that the drawings depicted him engaged in sexual acts with children.
In his affidavit the father now says, “I reject these allegations in their entirety. I have never had sexual or any inappropriate physical relations or activities with underage males or females.”
The father’s explanation for sending the pornographic material to the mother was that he missed the children and was drunk. The father said that he was sad, angry and drunk when he produced this material. Ms B, the family consultant, was sceptical about whether or not the material was produced whilst the father was under the influence of alcohol. The father also explains the various vitriolic statements he has made about the mother with similar excuses (that he was angry, sad and under the influence of alcohol). Clearly the father has said various offensive things about the mother in circumstances when he was not under the influence of alcohol (for example the interviews with Dr M and Ms B). The Family Consultant, when seeking an explanation for his behaviour, was not told by the father at any point in time that alcohol was part of why he had done what he had done.
The father said that he was drinking one bottle of whiskey every three days when he wrote the letters and now he has moderated that to one bottle of whiskey every four days. He dilutes the whiskey because “you don’t drink the devil’s drink neat”.
I note that in the Australian Federal Police’s summary of facts (exhibit 11), which contains a summary of the record of interview between the police and the father, the father does not say he wrote or drew any of the pornographic material while drunk. Rather, he said to the police that he sent child pornographic material to his wife because he was “distressed” and “frustrated”. He said “I might have written things to frustrate her”. The police record that the father “stated he drew these pictures to frustrate his estranged wife and make her mad because she cheated on him…”
When the Family Consultant asked the father why he sent the mother drawings and stories of child rape, the father said “I made up stories about beautiful young boys and girls having sex to make her [the mother] mad… she’ll think I’m having sex with these children. Having fun. She’ll be jealous and she’s there with the children… I needed to distract her to make her sad… but I was mad.”
The father is clearly of the view that although his written communications with her were criminal in their nature, the mother had done the greater wrong by reporting him to the authorities.

The father’s family violence and threats towards the mother and children

There is no allegation of direct physical violence by the father against the mother. There is however ample evidence to find that the father directed threats towards the mother and conducted himself in such a way that led the mother to be reasonably apprehensive about her personal safety and wellbeing.
The father has said to the mother “if you keep talking, I will stab you” and “no one knows you. I could kill you and nobody would miss you.” The father has also said to the mother “it’s easy for me to kill you, it would only take 1 or 2 minutes to kill you.”
The mother says that around 1 July 2010, she asked for money from the father to recharge her internet service, which she used to try and improve her English. He refused and said to her “if you don’t stop, I will stab you.”
In October 2010, the parties met to discuss their finances. The father said to the mother “I’ll make sure you don’t live happily and you’ll have to keep looking over your shoulder” and “I’ll break your leg if you go to the police.”
On 17 July 2011, the father said to the mother “if I lose the kids you will also lose [the] kids. When something happens to you I won’t be in Australia, I’ll use someone to get you.”
The expert reports that the father “talked about the man who had thrown his child from the bridge in Melbourne. He said that was wrong and he should have killed the wife. He then talked about the man who run [sic] his children into a dam and killed them and said that was wrong, that he should have killed the wife.”
The father said to the expert that he had “thoughts of taking a knife and stabbing [the mother].”
The expert opined “there are significant concerns in that he expressed to me the belief that men who had killed their children should have killed the wives. He also expressed ideas of self harm.”
The father also expressed threats towards the mother in the family interviews with the family consultant who said “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.”

The mother’s allegations about the father’s controlling behaviour

The parties have a history of the father exercising coercive control over the mother by the use of intimidation and psychological manipulation.
The mother says during the relationship she had “minimal access to cash”. She says at one stage the father offered to pay her a fortnightly allowance of $20. The mother says she approached the father and asked for money to purchase things for herself and the girls, but that he “usually responded that he received no dowry for me and did not have to give me anything and all the money he had was his not mine.”
The father denied this. He deposes he was “very happy to provide for [the mother] and our children. Whenever she needed something or asked for money I gave it to her.”
The mother says the father would often call her names like “stupid” or “worthless”. She says he refused to let her learn English.
The mother says the father would make her cut the grass with scissors rather than a lawn mower.
The mother annexes to her affidavit letters typed by the father. In one of the letters, it says “please delete & forgive my caring wifes [sic] statement after a lie test, as she is unintellegent [sic] & brain washed.”
In a letter from the father to the mother dated 5 April 2011, the father writes “you told me you wante[d] to fuck hundred [sic] of men & get aids & die…many sex in front of our kids, so it is true you cannot deny.”
The father says that the letters annexed to the mother’s affidavit were written when he was “extremely upset and confused.”

The father’s mental health

The father annexes to his affidavit two letters regarding his mental health. Annexure A, dated 29 July 2011, is authored by Dr O who works at the X Hospital Mental Health Unit where the father was admitted on 18 July 2011. Dr O opined that the father was “suffering from Bipolar Disorder and had a Manic Episode with Psychotic Features. He responded very well to treatment with resolution of his mood and psychotic symptoms. He developed insight into the fact that he has had a disorder and that the medication helps him feel normal and function normally.”
Annexure B to the father’s affidavit is a letter dated 2 August 2011 from the father’s General Practitioner Dr G. Dr G wrote “[the father] is being treated for Bipolar Disorder by psychiatrists at [X] Hospital… He appears to have insight to his condition and currently is compliant with medication.”
Exhibit 2 is a bundle of documents including a letter from Dr L dated 13 March 2012. Dr L says “[the father] has been suffering from severe mental health issues over the last few months. This required him to be hospitalised last year and to nearly be re-admitted in the last few weeks. [The father] is currently engaging in treatment.”
In her report dated 28 March 2012 (after an interview with the father on 23 March 2012), the expert wrote “there was a recurrence of grandiose beliefs and a preoccupation with his wife having sex with five men.” The expert opined “I believe the father exhibits a bipolar affective disorder and was in a manic phase when I saw him”. In her letter to the court dated 21 August 2012 she said “this diagnosis encompasses his beliefs about [the mother] which I would regard as delusional.”
The father denied he had a history of Bipolar Disorder. The father said to the Family Consultant that he would be well “straight away… as soon as you give me my babies.”
The father clearly feels well at the moment. He says that he believes he does not have bipolar disorder because he is managing his life in a way that is quite stable at the moment (he is neither manic nor depressed in his view).
The father had certain grandiose ideas. He claims to ride the biggest bicycle in the world (he does ride a big bicycle which he named “…”). The father also claims to have written the longest song in the world (about 18 minutes in length). The father has given himself the title “captain”. He has done this because in his view he has conquered the world. He describes himself as “superman” and “the world’s greatest traveller”. He said that he visited 56 countries in three months.
On 18 July 2011 the father was the subject of an involuntary treatment order (“ITO”) and was kept forcibly in a secure facility. He indicated that he was unable to leave because of the presence of security guards. During this time he referred to the mother as “the prostitute”. The medical records at that time assessed him as “probably a high risk of doing harm to the wife and the children”. On 30 August 2012 I made an ex parte order requesting the Independent Children's Lawyer make an application under s 27 Mental Health Act 2000 (Qld). On 10 September 2012 the Independent Children's Lawyer made an application for a Justices Examination Order and that order was made by a State Magistrate. On 12 September 2012 an employee of the X Hospital, Mr N, attended the father’s home. Mr N is a registered nurse. He spent 45 minutes assessing the father, and 15 minutes providing general support.
In his clinical notes (exhibit 7), Mr N records, inter alia:
Insight/Judgement: Has Insight, recognises mental illness and the need for treatment/Judgment good
Risk: Denies any current ideation of suicide with nil current plan or intent, currently presenting as minimal risk of harm to self or others. denies [sic] making any threats to the wife.
There is a note that the father was having some side effects from his current medication and there was a request for his treating consultant psychiatrist, Dr K, to review that medication. There was a plan to change his medication from Risperdal Consta to Paliperidone. The father’s oral evidence would indicate that that did not happen.
Mr N suggested that the father’s boredom and loneliness might be improved by linking him with local social organisations that provide groups. A plan was developed to do that. I did not hear any evidence as to whether that had happened or not.
Mr N’s clinical notes seem then to have been taken by Ms J, an authorised mental health practitioner, and summarised into a document entitled “Reasons why assessment documents were not made pursuant to a Justices Examination Order”. The result of the Justices Examination Order (JEO) was as follows:
[The father] was seen in his home in … 12^th September 2012
[The father] was diagnosed as having Bipolar affective disorder in July 2011 without psychotic symptoms he was treated in MHU [X] Hospital at the time was on an ITO but taken off ITO when discharged. [The father] has been case managed by the [SC] team since then.
Insight [The father] recognises that he has BI Polar Affective disorder and has been very compliant with treatment turning up at clinic for his depot of Risperidal Consta on the day that it is due.
Risk
[The father] denies any current ideation of suicide with nil current plan or intent to harm others
Thought process intact, sequential, logical & coherent with no normal thought disorder
Thought content logical and appropriate able to initiate conversation appropriately though [sic] out conversation
Perception denies any auditory or visual hallucinations.
There are three significant difficulties with the information provided by the father to the examining mental health professionals as set out in Exhibit 7. The first is the father’s assertion that he recognises his mental illness and the need for treatment.
The father in the witness box made it clear that in his view he did not have a mental illness and the assessments made by various professionals that he had a mental illness were wrong. Secondly, he indicated to Mr N that he was compliant with his current medication. The assessment by Ms J being that he was “very compliant” with treatment. In fact, the father conceded in his oral evidence that he had unilaterally ceased his medication at a time prior to 12 September 2012.
The third concern arising from Exhibit 7 was that the father denied to Mr N that he had made any threats to the mother. That is a seriously inaccurate statement by the father.
The Family Consultant commented that one of the father’s personality traits allowed him to present as plausible and coherent, notwithstanding his underlying mental health disorder. I find that the father on 12 September 2012 was able to present himself in a way that convinced the relevant professionals that no further action should be taken. In fact, in three important areas the history the father gave to the registered nurse was wrong.
The final assessment was that the father did not meet the criteria for requesting an ITO. This was primarily on the basis that the father recognised that he had bipolar disorder and that he requires medication to remain well and that he had been compliant with all treatment prescribed to him by his treating consultant psychiatrist since his hospitalisation.
The mother alleges the father feigns mental illness. However, on the evidence it appears more likely that the father feigns mental stability and wellness when it suits him.

The father’s allegations about the mother

The father alleges the mother is engaging in sexual activity in front of the children. The father said to the Family Consultant that what made his “mind unwell” was “that prostitute [referring to the mother] is being paid sixty dollars an hour… she is still having sex in front of my babies.”
At various times the father has asserted that the mother has no brain and has had sex with multiple men (up to five) in front of the children. The expert noted that the father said “his daughter had seen the mother having sex with 5 men” and that “if the children didn’t get away from her they may be prostitutes.” The father at one stage asked the Department of Communities, Child Safety and Disability Services (“the Department”) to place cameras in the mother’s house so that evidence could be gathered about her promiscuous behaviour.
The father offers as proof of his assertions a letter that the child H wrote about sexual acts she had (allegedly) witnessed the mother engage in. The father took these letters to the Principal of H’s school. The text of what H wrote to the school is contained in Exhibit 8. Although the original letter was not in evidence as the school’s file was not subpoenaed, the Department’s file has a verbatim transcription of the letter. The father denies being involved in the production of the letter or knowing anything about it. The Department concluded that the letter to the Principal of H’s school, although written in her hand, had been dictated to her by her father. The father denies this. The letter was written in early 2011. At that time H was eight and a half years of age. There are phrases in the letter that, on balance, H would not have been able to construct herself. One example is the phrase, “world of sin-sex-white slave-crime and temptation”. The father conceded that that was in fact a title of a book that he is writing and that H did not know the title of that book. I am comfortably satisfied that the father was involved in the production of that letter to H’s Principal and I do not accept his denial that he was not.
The father indicated it was not his view today that the mother was a prostitute.
In his oral evidence he asserted that the mother was timid and “from the mountains”. He thought the mother had a need for him to tell her what to do.
The father has also accused the mother of being involved in the use and supply of drugs.
The mother said to the Family Consultant that “it was a constant source of worry about what [the father] was planning next.” The mother said “if he is around my kids, I can’t look after my kids.”

Whether the father poses an unacceptable risk to the children

The assessment of unacceptable risk has two aspects to it. The first is the prospect of whether something might happen. The second is the consequence of the risk happening.
The prospect of something happening might be low but the consequences might be catastrophic and in those circumstances even though the prospect is low, the risk is unacceptable.
There are two significant risks in this case. The most important one is that identified by the Family Consultant and Dr M. The father has spoken about, written about and thought about killing the mother and the children. The professionals assessed that risk as a real one. Even if that is a low risk (and the professionals assess it at higher than that), the consequences of that event occurring are so catastrophic that the risk is unacceptable.
The father demonstrates no insight whatsoever as to the effect his mental disorder and behaviour have upon the mother. His excuse for his behaviour which is anger, sadness and drunkenness does not recognise the major reason for his behaviour which is his mental illness.
The second unacceptable risk arises out of the appalling nature of the communications between the father and the mother and the appalling nature of the things that the father has said about the mother. The risk arises from the fact that the father expresses no regret or remorse for things that he has said in the past. Whilst the father in oral evidence before me said that he did not now believe things that he had believed about the mother in the past, I was less than convinced that he was being genuine in those statements. I find that there is an unacceptable risk that if the orders of the court created a situation where there was continuing contact between the father and the children, then the father would recommence the appalling communications he had previously perpetrated. This could only have a significant deleterious impact upon the children.
I accept the assertion that the contents of Exhibit 11 are very worrying. The father has written about himself involved in paedophilic behaviour. The father asserts that it was simply something that he said to the mother in order to upset her. It was clear that the report writer had a great deal of disquiet as to whether or not the father had in the past been involved in actual sexual acts with young children. The father protested in the witness box that he would not have had the opportunity to be involved in any such behaviour if he travelled through 56 countries in 90 days. That fact alone, if true, does not negate opportunity. I have found there is an unacceptable risk the father has been involved in such activities.

The father’s assertion about his health

At the commencement of the trial, the father made it known that he expected to have major heart surgery in the foreseeable future. Inquiries made with his general practitioner by the Independent Children's Lawyer indicated that his general practitioner was unaware that this was so and the assumption was that the father’s condition was being managed by doctors at the X Hospital. Apart from the father saying so, I have no independent evidence that the father has a major heart condition. The family consultant, when giving oral evidence, indicated that in her view the medical records of the father indicated that on a number of previous occasions, the father had presented at the hospital with chest pains. These had been fully investigated by normal tests with the conclusion being that there was no physiological indication that there was any major difficulty with the father’s heart. No date has been set for the heart operation. I am unable to make any judgment about whether or not the father currently has a major heart problem.
I note that paragraph 11 of Dr M’s affidavit sworn 3 April 2012 she says “Perusal of notes from [X] hospital indicates that on the 15.03.2010 he is described as having a history of gout, renal stones, abdominal aortic aneurysm and asthma. The aneurysm is 3.7 centimetres and the cardiology registrar recommended that he has follow [sic] for that.”

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII FLA 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
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

The children currently benefit from having a meaningful relationship with their mother.
The Family Consultant opined that the benefit to the children having a relationship with their father is “very limited”.

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

There is an unacceptable risk to the children arising from the father’s repeated threats on the children’s lives and the mother’s life.
There is an unacceptable risk to the children arising from the father’s previous involvement in distributing child pornography and possibly being involved in actual paedophilia.
The Family Consultant opined that the father’s “pursuit of [the child H] to participate in the describing and reporting of sexual activities allegedly occurring in [the mother’s] home is itself sexual abuse and a significant indicator of his ongoing capacity to groom the children.”
The father’s disturbed thought patterns (including fantasising about the mother possibly herself sexually interfering with one of the girls to set him up), are illustrated as recently as 17 February 2012, in Exhibit 5. Exhibit 5 is a letter the father wrote dated 17 February 2012 and sent to the Family Consultant in March 2012. The Family Consultant has underlined the following words in that letter:
VARIOUS SEXY NOISES LOUD
…
SEX PARTIES
…
ONE TIME, [the child C] THEN 4 ASKED MUM ‘WHAT IS THAT LONG THING[?’] POINTING TO … PENIS, SHE TOLD [the child C] IT IS A NOODLE, STUPIDLY SHE TOLD THAT INCIDENT TO [the child H] WHO TOLD TO ME.
…3 BABIES COULD BE PROTECTED FROM WATCHING MUMS SEX PARTIES & INVOLVED IN DRUGS FOR THE [LA]ST 12 MONTHS AT LEAST.
SHE MIGHT HAVE HERD LIGHTLY. SHE WAS ….[indecipherable]… I THOUGHT WHILE SLEEPING HOW [THE MOTHER] THREATENED MY BY POKING HER FINGERS INTO [the child C’s] [vagina cunt[1]]… MAKING IT RED TO INDICATE I ATTEMPTED SEX WITH MY DAUGHTER. THEN RING 000 HAVE ME ARESTED & SENT TO JAIL, I TYPED THAT HIGHLY DANGEROUS THREAT TWICE TO D.I.A.C. [I assume the father is referring to the Department of Immigration and Citizenship] & A.F.P [Australian Federal Police].
[1] The words in square brackets are not decipherable from Exhibit 5 as those words are cut off by the margin. I note at paragraph 22 of the family consultant’s report, she quotes the letter as saying “poke her fingers into [the child C’s] vagina cunt, making it red to indicate [[the father]] attempted sex with my daughter”. I accept her evidence that that is what the original letter said. I note on page 13 of exhibit 5 there is a similar statement “4 letters to D.I.A.C who still… have them including threats of poking her fingers into [C] or [Vs] vagina to make it red, then ring 000”.
In the circumstances of this case, there is a need to protect the children from both physical harm and psychological harm from being exposed to abuse and family violence.

The additional considerations

Children’s views (s60CC(3)(a))

The Family Consultant noted that H “has been concerned about whether or not her mother is doing the ‘right’ thing or is bringing shame on the family by having attempted another relationship.” The child H has been affected by the father’s psychological manipulation and the types of things the father has said to Therese about the mother.
The father has made derogatory remarks about the mother to the children, particularly H. I accept that the father has told H that “Mummy is a prostitute” and “mummy is very stupid” and “mummy just wants to take my money”.
The child H also said to the Family Consultant “I’m upset just sometimes that I don’t see dad but I’m happy I’m with my sisters and my mum.” H still said that her mother was the most important person to her in her family.

Relationships of the children with the parents and other persons (s60CC(3)(b))

The children’s primary relationship is with their mother.
The Family Consultant observed “[C] and [V] are frequently affectionate and interactive with [the mother].”

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 (s60CC(3)(c), noting (s60CC(4))

In circumstances where there was a Protection Order in place, the mother has, under the mistaken impression the children were not named as protected persons, supervised contact between the children and the father. After learning that the father had been charged with numerous counts of child pornography, the mother “still allowed [the father] to come to see the children at [her] home under [her] supervision”. I am of the view that the mother has, at times, under estimated the risk the father poses to the children, and has facilitated contact in circumstances where it may not have been appropriate. There is no doubt that the father’s previous coercive hold on the mother has created a situation which makes it very difficult for her to keep her distance from him.
The father has a history of communicating with the Department of Immigration and Citizenship (see exhibit 4) with the intent of having the mother expelled from the country. The father conceded that he had received communication from the Department of Immigration indicating that he was not to communicate to them again about the topic.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

The children have not spent time with their father since mid 2011. The mother’s proposal does not propose any change in the children’s circumstances.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

The father said that he intended to sell the home in which he lived and that he had made arrangements for the marketing of the property. The father hoped to receive about $225,000 from the sale of his house. He asserted that he intended to return to Country Z once the sale is completed. I do not place great weight upon that expression of intention by the father.
The mother has not attempted to secret herself and the children. The father knows where she currently resides. The mother says the father does not speak to the girls by telephone and has said to her that he “does not want to pay the cost”.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))

Subject to one matter, the mother has demonstrated a capacity to provide for the needs of the children.
It is of concern that the mother has allowed the father to spend time with the children on numerous occasions since separation, including overnight. I am of the view that these decisions were a result of the father’s ability to exploit the mother’s vulnerabilities through controlling behaviour and harassment.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

The relevance of the parents’ background was not explored at trial. The family consultant reported that the father told her that “[he] wouldn’t spit on her” as she is “village dirt”. The father denied making this comment. I reject his denial, and accept the evidence of the Family Consultant.

If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))

Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

The expert said “[the mother’s] actions in allowing [the father] contact with the children when she regards him as a paedophile are questionable.”
The Family Consultant opined that the father’s “intense focus on [the child H] during supervised contact (2011) likely made [the child] feel special but also anxious from him enlisting her to report against her mother. This does not reflect a loving parent child relationship. [The father’s] communication and behaviour seems so dominated by his own feelings, emotional needs and perceptions that he is likely to find it difficult to support the children in activities related to their individual positive development, emotional expression or social engagement.”

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

There is some confusion as to exactly when particular protection orders were made. There is a temporary protection order at Annexure “CMB 4” of the mother’s affidavit sworn 26 July 2011. Although the mother says that that order was made on 18 January 2011, a close perusal of that document indicates it was made on 13 January 2011 (as I have indicated in the above chronology). The mother asserts that the final protection order was confirmed on 10 March 2011 (if that was a two year order and I do not have a copy of it, then it would expire in March 2013).
The family consultant at paragraphs 25 and 26 of the family report says the following:
25.There is a current Protection Order, AFP Bail Conditions and the Family Court Orders which prevent [the father] from having contact with [the mother] and the children. The Protection Order was served on [the father] on 18^th August, 2011 and expires in March 2013. [The father] has also recurrently breached the Protection Order, Bail Conditions and the Family Court Orders by phoning and presenting at [the mother’s] home.
26.[The father] had four previous Temporary Protection Orders against him naming [the mother] and the children as aggrieved. These expired on 30^th June, 2011 and 18^th November, 2011, 3^rd February 2011, 10^th March 2011 and 10^th February 2011 respectively.
Whatever the history of temporary orders and final orders was, the parties agree that the current protection orders expire in March 2013.
The father has been convicted on two occasions for breach of the Protection Order.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (s60CC(3)(l))

This is not a weighty matter.

EQUAL SHARED PARENTAL RESPONSIBILITY

The mother and the Independent Children’s Lawyer propose the mother have sole parental responsibility for the children.
The father proposes the parties have equal shared parental responsibility.
I am satisfied that the presumption of equal shared parental responsibility is rebutted, given the history of family violence in this matter. Having regard to the relevant factors, I am of the view that equal shared parental responsibility would not be in the children’s best interests.
In light of my findings that the father poses an unacceptable risk of physical harm to the children, the mother is to have sole parental responsibility.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Given that I do not propose to make an order for equal shared parental responsibility, I am not mandated by the statute to consider making orders for equal time or substantial and significant time.

CONCLUSION ABOUT BEST INTERESTS

There was a discussion during submissions as to whether or not it would be possible to create protections so that the children might have some time with their father in a supervised setting. One difficulty with that is the partial protections created by the father taking medication are no longer in existence. Any supervisor would have to be skilled and knowledgeable about the entire background of the case and appreciate the risks that the father actually posed. The assessment made by the registered nurse, Mr N, on 12 September 2012 is an example of somebody who actually has training, being duped by the father.
Counsel for the Independent Children's Lawyer submitted, and I accept, that it was difficult to conceive how proper protective measures could in fact be put in place. In addition, supervision is not a long term solution in circumstances where the two younger children are five years and three years of age respectively.
I find it is in the children’s best interests to make the orders sought by the mother.

PROPOSED ORDERS

It is appropriate in the circumstances to restrain the father from approaching the mother or approaching her place of residence or her place of future employment from time to time.
The father is to be restrained from attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time.
I intend to make orders similar to the orders I made on 1 August 2012 to alert the X Police and the Australian Federal Police to the orders and notations I make today.
In addition, the Independent Children's Lawyer will be requested to send a copy of the orders and my Reasons to the Department of Communities, Child Safety and Disability Services.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 February 2013

Associate:

Date: 13.2.2013

SCHEDULE 1 – ex tempore reasons for judgment 30 August 2012

I am of the view that at the current time, the father may pose a serious imminent risk to the mother and the children.
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.
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.
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)).
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.
On that day I ordered the preparation of a family report.
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.
I subsequently received the family report from Ms B.
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 husband] 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.
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.
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 husband] was very clear about his intention to retaliate against [the wife] 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 [sic] 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 husband] is impulsive, unstable and quick to intense reactivity. These factors in combination with [the husband’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 husband] 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 husband] 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 husband] 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 husband’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.

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.
Pursuant to that order, Dr M provided the court with a supplementary report dated 21 August 2012.
In her supplementary report Dr M concludes:
I believe that [the husband] 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].
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.
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.
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.
The order is actually made in an “approved” form.
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.
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.
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.
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.
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.
Given the sensitive nature of material under subpoena, I remake orders that have been made in respect of access to that material.
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.

[2013] FamCA 63

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness

Charge

Appeal