Collins and Ricardo

[2015] FamCA 7

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO [2015] FamCA 7

FAMILY LAW – CHILDREN – Interim application – Where the father seeks unsupervised time with his child – Where the father is a litigant in person – Where there is an appeal against existing parenting orders – Where there is insufficient evidence to address considerations in Part VII of the Act – Where the application is dismissed.

Family Law Act 1975 (Cth) Part VII

APPLICANT: Mr Collins

RESPONDENT: Ms Ricardo

INDEPENDENT CHILDREN’S LAWYER:              Jennifer Weate & Associates

FILE NUMBER: SYC 4959 of 2009

DATE DELIVERED: 15 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 15 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weate

Orders

1. That the father’s Application in a Case filed on 11 November 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo 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: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

And

Ms Weate
Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

1. Mr Collins (“the father”) and Ms Ricardo (“the mother”) are the parents of a child, S (“the child”), who was born in 2008 and is now six years of age.  On 12 January 2012 final orders were made, after a contested hearing, to the following effect:

   ·That the mother have sole parental responsibility.

   ·That the child live with the mother.

   ·That the child spend time with the father for two periods each of two hours on consecutive days at contact centres in City 1 in Western Australia and Wollongong in New South Wales. 

2. In October 2012 the mother relocated from City 1 to Cairns in Queensland.  The father has travelled to City 1 and Cairns to spend time with the child, in company with his wife Ms I.  Despite the provisions of the orders of 12 January 2012, the mother has never returned the child to the Wollongong area to spend time with the father. 

3. By an Application in a Case filed on 11 November 2014, the father sought to vary the orders of 12 January 2012 so as to provide that the child spend eight hours unsupervised time with him in Cairns and at his residence at City 2 in NSW.  The mother filed no Response to this Application in a Case, nor any affidavit evidence.

4. The father tendered evidence of service upon the mother by post (Exhibit 1).  Accordingly, I proceeded to hear the father’s interim application by way of submissions from him and the Independent Children’s Lawyer (“ICL”). 

5. I was informed by the ICL that judgment is currently reserved in an appeal against the orders of 12 January 2012.  On 28 July 2014 the father filed an Initiating Application, by which he sought orders inter alia that he and his wife have “full custody and parental responsibility” and that the mother “have half the school holiday access”.

Consideration

1. The father annexed to his affidavit various reports from health professionals which post-date the orders of 12 January 2012.  A report dated 13 December 2012 by a psychologist, Mr OO, indicated that the father “does not have any substance abuse problems and falls within the very low risk range of the population in relation to developing a substance abuse problem”.  A urinalysis certificate dated 12 December 2012 showed clear results for specified drugs. 

2. In a report dated 12 September 2012 Dr QQ, a psychologist, opined that the father suffers from adjustment disorder with anxiety but not from “border line obsessive compulsive personality” and “narcissism”.  Apparently a Children’s Court appointed psychologist, Ms SS, made these diagnoses in 2002.  Dr QQ pointed out that “there is no such diagnosis as border line obsessive compulsive personality” and offered a clear opinion that the father does not suffer from a narcissistic personality disorder.

3. In a report dated 7 January 2013 Mr UU, a psychologist, opined that the father “is not suffering from any diagnosable psychological disorder according to the DSM4”.  He concluded:

   From my assessment I believe [the father] is not suffering from any diagnosable psychological disorder accordingly to the Diagnostic & Statistical Manual of Mental Disorders.  He appears to lead a regular active lifestyle which consists of running two businesses and having activities in his life that give a sense of pleasure and achievement, therefore functioning highly.

4. Mr VV, a psychologist, prepared a report dated 13 December 2012 for the Children’s Court in relation to the father’s son C.  Apparently the father had made an application for orders that C live with him rather than in foster care.  Ms WW, a psychologist, also prepared a report in the context of these proceedings. 

5. Associate Professor XX, a psychiatrist, prepared a report dated 6 December 2012.  Associate Professor XX opined as follows:

   [The father] is a 50 year old man who is currently involved in custody proceedings involving one of his children.  In considering his custody application the court will clearly consider a range of factors but one of these should not be any allegation that [the father] is suffering from any diagnosable mental illness or personality disorder.  The results of both assessment on interview and personality testing will not support any psychiatric diagnosis and I am of the opinion that the comments made by Ms [SS] are of the nature of a description of her perceptions of [the father’s] presentation to her rather than representing a formal diagnosis of personality disorder.

6. It is to the father’s credit that he has subjected himself to these various assessments, which resulted generally in favourable reports.  The reality is, however, that this material does not assist me in assessing the likely effect upon the child S of the changes to her parenting arrangements which are now sought by the father.  The evidence placed before me by the father does not enable me to determine what orders are in the child’s best interests, having regard to the considerations set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

7. As noted, the father currently has outstanding both an appeal against the orders of 12 January 2012 and an extant application for fresh parenting orders. It may well be that the Court will see fit to extend the child’s time with the father at some future time, with the benefit of evidence which addresses the considerations set out in Part VII of the Act. I am not prepared to do so at this stage of the proceedings, in the absence of such evidence. Accordingly, I will dismiss the father’s Application in a Case filed on 11 November 2014.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 January 2015.

Legal Associate:       

Date:  15 January 2015