Connor and Hulett

[2010] FamCA 103

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT [2010] FamCA 103

FAMILY LAW ─ CHILDREN ─ Parenting ─ Appointment of a Case Guardian ─ Where Father suffers from mental illness ─ Where the Father is subject to an Involuntary Treatment Order

Family Law Act 1975 (Cth) Div 12A, s 65L
Family Law Rules 2004 R. 6.08
Mental Health Act 2000 (Qld)

APPLICANT INDEPENDENT CHILDREN’S

LAWYER:

Ms Falcomer

FIRST RESPONDENT: Ms Hulett

SECOND RESPONDENT: Mr Connor

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 5 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 5 February 2010

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER APPLICANT: Ms Falcomer of Legal Aid Queensland

THE FIRST RESPONDENT: In Person

SOLICITOR FOR THE

SECOND RESPONDENT:

Ms Breen of Smith & Associates

Orders

IT IS ORDERED THAT

1. A Case Guardian be appointed for the father MR CONNOR.

2. By reason of a suitable person not being available to be a Case Guardian, it is requested, pursuant to Rule 6.11 of the Family Law Rules 2004, that the Attorney-General for the Commonwealth of Australia nominate a person to so act and, it is respectfully requested that, in the circumstances of this case, the appointment of that Case Guardian occur with expedition.

3. Upon the appointment of a person pursuant to paragraph 2 of these orders, such person file and serve a Notice of Address for Service within 14 days of such appointment.

4. Upon the filing of the said Notice of Address for Service by the Case Guardian, a copy of all relevant documents filed in these proceedings, including the orders made today, the Ex-Tempore Reasons for Judgment therewith, and the orders and Ex-Tempore Reasons for Judgment of 23 July 2009, be provided to the Case Guardian by the Brisbane Registry of the Family Court of Australia free-of-charge.

5. The matter be listed for further directions before Justice Murphy at a time and on a date to be advised, as soon as reasonably possible after the appointment of a Case Guardian, and the opportunity by that Case Guardian to read and consider the documents provided pursuant to paragraph 4 of these orders.

6. The hearing listed for 25 February 2010 is vacated.

IT IS DIRECTED THAT

1. The Independent Children's Lawyer liaise with the Department of the Attorney General, and any relevant State Agencies, with a view to both expediting the appointment of a Case Guardian, and bringing this matter before the court for further directions at the earliest opportunity.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 4645 of 2007

MS FALCOMER

Applicant Independent Children’s Lawyer

and

MS HULETT

First Respondent

MR CONNOR

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a very sad case in which this court remains troubled about the nature and extent of the relationship that is in the best interests of a child, born in July 2001. 

2. There is little doubt on the evidence that the father dearly loves the child and that the child reciprocates that love for his father.  All else being equal and all being well, it seems to me highly likely that a fulsome and meaningful relationship between the child and his father would likely be ordered by court or agreed between the parties. Unfortunately, a very significant circumstance which intervenes is the father’s mental health. 

3. This matter’s final hearing occurred on 23 July 2009.  At that time, the court had before it evidence from Dr C, who was the father’s treating psychiatrist and further evidence from a single expert psychiatrist, Dr K. 

4. At that time, the father was the subject of an order made pursuant to the Mental Health Act 2000 (Qld). The order (an Involuntary Treatment Order) must, by that statute, be reviewed by the Mental Health Review Tribunal at not longer than six-month intervals. The order was then due for review on 27 July 2009.

5. At the hearing before me on 23 July 2009, the father indicated strongly his belief that the Involuntary Treatment Order (“ITO”) would be revoked at that tribunal hearing the following week.  I said in my reasons at that time that “having read all of the material in this case, and using my own experience acquired some time ago in that jurisdiction, I did not share that view.”  As it transpired, the ITO was continued at that tribunal hearing. 

6. The father tells me today from the bar table (as to which see Division 12A of the Act) that the ITO (which, in the normal course of events would have come up for review by late January 2010,) was subject to an application made by him (of an unspecified type), but the nature of which I understood to be such as to bring to an end the ITO.

7. The Independent Children’s Lawyer advises that she has had a conversation with Dr O, who is the father’s current treating psychiatrist.  The father’s former treating psychiatrist, Dr C, has left her employment on maternity leave and Dr O is the psychiatrist who has taken over from her.

8. Treatment from an appropriately qualified psychiatrist is a part of the requirements of the ITO.  At the proceedings before me on 23 July, I heard evidence from both Dr C and Dr K.

9. Prior to that hearing, Dr K had had the opportunity to observe, and conduct mental state examinations of, the father on two separate occasions separated by about 16 months in February 2008 and July of 2009.  In the latter of the two reports, Dr K provided the opinion:

   I think this man clearly needs to remain under psychiatric care, requires long term medication in view of his recurrent illnesses and there is, in my considerable risk in providing him unfettered, unsupervised access to his child in a situation where he is insightless into the nature of his illness and refuses to comply with the treatment.  In these circumstances, I think that the safest alternative is for ongoing supervised access with which [the father] will clearly vehemently disagree.  However, in the setting of yet another admission to hospital and extensive documentation from the Royal Brisbane Hospital which notes this man’s recurrent insightlessness, there is, in my view, little choice.

10. As I noted in my earlier reasons, Dr K was cross-examined by the father at some length.  That cross-examination centred on what can be described broadly as a plethora of factual matters and assumptions exemplified by the father’s comment quoted in those earlier reasons that “if given the chance, I would’ve proved thousands of things against her.” 

11. I also recorded in those reasons that Dr K described the father as delusional.  The father said, on at least two occasions during the course of that hearing, in the context of implying that, “delusional” was a word heard from the mother (by Dr K) that the word delusional did not exist.  He said, “I looked it up in the dictionary, and there is no such word.” 

12. During the course of the hearing in July last year, a number of questions were asked of Dr K and Dr C by counsel for the Independent Children’s Lawyer that were directed towards what might be described as the father’s capacity to represent himself.  I recorded, in my earlier reasons, that I considered the catalyst for those questions was:

    At least in part, that, as part of Exhibit ICL1 that a reporting psychiatrist is asked to opine on “is the patient capable of giving informed consent to the treatment?” to which the psychiatrist has answered, “No.”

13. I recorded in those reasons that the questions by counsel for the Independent Children's Lawyer were:

    “[p]rompted what I think can best be described as very guarded responses by each Dr [K] and Dr [C].” 

14. Dr K gave evidence during the course of those proceedings that he considered the father would be “fraught with difficulty in conducting his own litigation.”  The position at that time can, I think, be summed up accurately by a passage recorded in those earlier reasons:

    …during his evidence yesterday, Dr [K] said to the father, after a lengthy period of cross-examination by the father, during which I detected some exasperation on the part of Dr [K]:

    Whatever label you put on it, you have a serious mental illness…you have a psychotic illness.

    The doctor then went on to say to the father words to this effect:

    It has pervaded over a period of time…part of the difficulty is that this has occurred despite community treatment orders…you have not a scintilla of insight into the fact that you have a mental illness.

15. The balance of the reasons given on that occasion refer, at some length, to the evidence of Drs K and C.  Ultimately, and principally by reasons of the evidence of those two specialist doctors, and also by reference to the evidence of the family consultant, Mr F, I made a number of parenting orders with respect to the child on that day.  Centrally, I was concerned about whether the father’s mental health, as revealed by the evidence before me, needed further consideration.

16. In that respect, as the orders indicate, the father said that he intended contacting a psychiatrist of his own, Dr W.  The father tells me today that he has done so and that Dr W is intending to provide a report, due to be received by the father on the 17^th of this month. 

17. The father told me today that he has no difficulty in providing the report of Dr W to the Independent Children’s Lawyer and for her to provide Dr W’s report to Dr K.

18. I gather that, whenever a hearing by the Mental Health Tribunal takes place, and in whatever form (whether by reference to the statutory period of review or an application made by the father to which earlier reference was made) that the father intends to provide that report to the tribunal for its consideration in respect of the lifting of the ITO. 

19. The Independent Children’s Lawyer has contacted Dr O, who has indicated to her that at the next tribunal hearing, he “does not expect a change” to the ITO.

20. It needs to be pointed out that the tribunal is an independent body charged with statutory responsibilities who will, of course, make its own decision in that respect. 

21. Dr O also pointed out to Ms Falcomer that, in his opinion, the father was “more stable” and “a lot calmer” than he had been in the past.  I must say that this opinion of Dr O accords with the presentation of the father this morning before me.  The father has been markedly calmer, as I apprehend it (in a lay sense) than he has been in earlier appearances before me.

22. Significant among the orders that were made on that occasion was that an order made pursuant to section 65L of the Family Law Act on 19 March 2009 continue, in contemplation of what was then a further mention of this matter before me.

23. In the intervening time, the Independent Children’s Lawyer – consequent, I assume, upon the evidence of Drs K and C and cross-examination by counsel for the independent children’s lawyer on the last occasion to which I have earlier referred  –  has determined to bring an application for the appointment of a case guardian for the father. 

24. When that application was earlier foreshadowed, I indicated that, whilst I had a significant amount of psychiatric evidence before me, I had no specific evidence of the matters that needed to be considered pursuant to rule 6.08, namely whether the father was:

    a person with a disability (as that expression is defined) within the Act and Rules.

25. Subsequently, a number of documents were forwarded by the Independent Children’s Lawyer to Dr K who annexes to an affidavit filed 3 December 2009, a report dated 6 November 2009.  In that report, Dr K, after referring to a significant number of documents reviewed by him addresses directly these questions:

    (a) whether the father is a ‘person with a disability within the meaning of the Family Law Rules 2004’, that is to say a person who ‘does not understand the nature or possible consequences of the parenting case in which he is involved or is a person who is not capable of adequately conducting, or giving adequate instructions for, the conduct of the parenting case in which he is involved.’

26. In respect of that specific question, Dr K provides the view:

    In my view, [the father] is a person with a disability under the meaning of the Family Law Rules. There is abundant evidence that [the father] suffers from a chronic psychiatric illness and that he has had substantial difficulties in his dealings with the court. Reading the transcripts of the most recent case, in my view elucidates this and certainly suggests that he is not capable of adequately conducting matters on his own behalf. Indeed, in many ways, [the father] appears to be his ‘own worst enemy’ and indeed to be making things more difficult for himself and without any appreciation of the risks that he is running.

27. The second question that Dr K was asked specifically was for him to provide an opinion on:

    the mental state and mental health status of the father and, specifically, his capacity to parent, his relationship with the child or the welfare and best interests of the child generally.

28. Dr K answered that inquiry by saying:

    It remains my view that [the father] suffers from a chronic psychotic illness and that he has had, as the court is aware, multiple relapses and admissions to hospital.  Despite this, his insight remains substantially impaired and there is, in my view, no doubt that his capacity to parent his child, and indeed his ability to understand the issues involved has been seriously compromised not only by his illness, but by his reluctance to comply with any treatment.

29. Dr K’s evidence provides an expert foundation for an opinion otherwise arrived at by myself having now had the opportunity to observe the father represent himself on a number of occasions.

30. I consider that in many respects the father is “his own worst enemy,” and, as Dr K comments, that he is “indeed making things more difficult for himself.”  In saying that, I do not intend to criticise the behaviour of the father insofar as his appearances before me are concerned.  I emphasise that on each and every occasion, the father has being respectful and appropriately focused, as best he is able, on the best interests of the child.

31. I do, however, consider that, on the evidence before me, he suffers a psychiatric illness of the chronic and debilitating kind that is referred to in the evidence before me. 

32. It needs to be pointed out, as I have attempted to point out to the father today, that the appointment of a case guardian ought not be seen by him as some form of “punishment” or as some form of criticism. 

33. As I indicated to him, my view, and the view that I will bring to any parenting proceedings involving the parties with respect to the child, is that, just like cancer or multiple sclerosis or any other serious illness, mental health is an illness.  A party, and the father in particular, is not to be blamed for the fact that he suffers from an illness.  It is simply a fact.

34. Of concern to the court is that the illness is appropriately addressed, treated and monitored so that, if those things occur, there is the best hope for the child having a proper extensive, meaningful relationship with his father. 

35. In that respect, Dr K says in his report – and I have sought to strongly emphasise to the father today its importance:

    I remain of the view that if [the father] complied with treatment and was in a stable therapeutic relationship, that indeed he would be able to actively parent his child.

36. The caveat on that optimistic scenario is that, at the moment, the father’s unfortunate illness intervenes.  Insofar as the instant application is concerned, and the proceedings before this court are concerned, I consider it significantly to the father’s advantage, and therefore, indirectly to the child’s advantage, that a case guardian be appointed. I so order.

37. No evidence is placed before the court by the Independent Children’s Lawyer of any person or persons who may be willing and able to act as such. 

38. The Rules make provision for that circumstances in Rule 6.11 and in those circumstances, where the court is of the opinion, as it is here, that a suitable person is not available for appointment, the court may request the Attorney-General to nominate in writing a person to be case guardian. It is plain that a suitable person is not available for appointment within the meaning of that Rule and I propose to make an order encompassing the respectful request for actions by the Attorney-General that the Rule nominates.

39. As I have said during the course of the proceedings, I am profoundly concerned that the process contemplated by that appointment should not delay these proceedings. 

40. The father is, in my view, appropriately concerned to have orders made in respect of the child as soon as can be arranged. I share that concern.  I have made the point to the father, however, and it should be made plain in these reasons, that a final hearing of the father’s application could have occurred before now. 

41. However, as the orders made by me on the last occasion I think make clear, doing so would have been, in my view, significantly disadvantageous to the father. Whilst it may be thought that any disadvantage to the father is not a concern of the Family Law Act when it comes to the making of parenting orders, the father’s disadvantage in that respect is inextricably interwoven with a potential disadvantage for the child who – I reiterate – clearly loves his father dearly and seeks a relationship with him. 

42. It is for that reason that orders were made in the terms that they were on 23 July. It is for that reason that the court contemplated and put into place the further section 65L process that it did on that occasion. And it was for that reason that the court seeks to appoint a case guardian in these proceedings.

43. I have, however, made it plain to the Independent Children’s Lawyer that I do not want this matter to go into abeyance.  I have made it equally plain that I want this matter to be actively managed and monitored by the Independent Children’s Lawyer with a view to having the proceedings ultimately heard by this court at the earliest possible opportunity.

44. For those reasons, I make the orders earlier indicated.  In respect of the matter last mentioned, I have provided that the matter come back for a mention and further directions before me once a case guardian has been appointed and filed a notice of address for service. 

45. I have an expectation that the Independent Children’s Lawyer will advise the court and the parties about the progress of that appointment, and will immediately take steps upon the appointment being made to ensure the matter is brought before the court at the earliest opportunity.

46. I have noted earlier these reasons that the father has no objection to providing an authority to the Independent Children’s Lawyer to speak to the psychiatrist, Dr W from whom the father intends obtaining the report earlier referred to.  The father similarly has no objection to the Independent Children’s Lawyer providing a copy of Dr W’s report when received, to Dr K.  I don’t propose to make specific orders to that effect.  I have noted what the father has said in each respect in open court, and these reasons will also reflect that.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  18 February 2010