Connor and Hulett

[2009] FamCA 323

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT [2009] FamCA 323

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests of the Child

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 92-286

APPLICANT: Mr Connor

RESPONDENT: Ms Hulett

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 19 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Curran

SOLICITOR FOR THE APPLICANT: Journey Family Lawyers

SOLICITOR FOR THE RESPONDENT: Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The matter be set down for final hearing before Justice Murphy for 3 days commencing at 10.00am on 22 July 2009 in the Brisbane Registry of the Family Court of Australia.

2. A Registrar conduct a compliance check by telephone on a date and time to be advised in the week commencing 22 June 2009, and:

   a.in the event that all parties are represented, the parties themselves are excused from attendance and the hearing will be conducted with the legal representatives only;

   b.in the event that all parties are not represented then the parties themselves will also be required to attend by telephone at that hearing.

3. The parties are granted leave to copy the documents contained in Exhibits ICL 2A, ICL 3 and ICL 4.

4. The legal representatives of the parties shall confer with a view to preparing consent trial directions in respect of the final hearing commencing on 22 July 2009, and

   a.Upon reaching agreement in respect of such directions, they shall be forwarded by jointly signed correspondence by email to the Associate to Justice Murphy in which case such directions, if considered suitable, shall be made in chambers with no appearance being required.

   b.In the event that consent directions are not agreed to and received in chambers by 4.00pm on 9 April 2009, either party have liberty to relist the matter before Justice Murphy on the giving of five (5) business days notice in writing.

UPON THE UNDERTAKING BY THE FATHER:

(a)That he sees a consistent general practitioner who has access to his mental health history and that he will authorise any treating doctor who has provided treatment in respect of his mental health, to provide such information to that general practitioner;

(b)That he continues to see the psychiatrist recommended for him by Queensland Health, namely Dr C and any officers of the mental health unit attached to the Royal Brisbane Hospital, whom he might be required or requested to see;

(c)He provides an authority to the Independent Children's Lawyer to receive information from all such medical providers which whom has is involved in respect of his mental health.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child … born … July 2001 (“the child”) live with the mother.

2. The father spend time with the child at all such times as may be agreed in writing between the parents, but failing agreement:

   a.at and supervised by the W Contact Centre on the weekend, or such maximum period of time as such contact centre can provide each week, and it is respectfully requested that the contact centre provide as much time as is available to them in that respect;

   b.in the event that the contact centre is unable to provide, on the weekends, a period of time greater than 4 hours, then, in addition, on one occasion during the week after school, for such time as the contact centre is able to provide.

3. The parents do all such things, sign all such documents and pay equally all such reasonable fees as might be required so as to ensure the registration of themselves and the child with that contact centre.

4. Pursuant to Section 65L of the Family Law Act 1975, and pending time commencing between the father and the child at the contact centre, the father shall spend time with the child at and supervised by Mr F or such other Family Consultant as he or the Manager of the Child Dispute Services might recommend.

5. The father be permitted to communicate with the child by telephone up to three occasions per week with the father to initiate the call to the child’s mobile telephone.

6. When the child expresses a wish to contact the father, the mother will use her best endeavours to facilitate such call and encourage all requests from the child to contact the father.

7. The mother do all things necessary to arrange for the child to participate in the Kids Club Holiday Program at the Mater Hospital, and the mother not discuss with the child, the father’s current mental health, save, as is recommended by, and as is done in conjunction with, any counsellor or therapist recommended by or associated with the Kids Club Holiday Program at the Mater Hospital, or such as they might recommend.

8. With respect to school, dental and medical practitioners that the child might attend, the mother will keep the father fully informed and notify the father within 7 days of any change occurring.

9. Neither parent shall criticise, denigrate, demean or ridicule each other or any member of the person’s family or household in the presence of the child or allow any other person to do so.

10. Neither parent, in communication with the child, shall record or discuss with or in the presence of the child, any matter which is the subject of, or relates to, Family Law proceedings whether past, present or future.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer requests the father’s doctor or other such treating psychiatrist, psychologist or hospital or medical facility to provide a summary report of the father’s treatment, compliance with medication and attendance for treatment and the father’s general mental health and upon receipt of such report the Independent Children's Lawyer release the report to each of the parents or their legal representative.

2. Should the father fail to authorize his Doctor or other such treating psychiatrist, psychologist or hospital or medical facility to provide a summary report of the father’s treatment, compliance with medication and attendance for treatment and the father’s general mental health upon request of the Independent Children's Lawyer or the mother, the Independent Children's Lawyer be at liberty to relist the application for mention with 3 days notice to the parties.

3. To the extent that the exception provided for in s 121(9)(a) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, a copy of the Ex Tempore Reasons for Judgment of today in this matter, the Report of Dr K, and the Report of Mr F be provided to any medical practitioner who is treating the father in respect of his mental health issues, including, but not necessarily limited to Dr C and the general practitioners earlier referred to.

AND IT IS FURTHER ORDERED THAT

1. 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 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

MR CONNOR

Applicant Father

And

MS HULETT

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties’ son was born in July 2001.  He is currently aged seven and a half and is in grade 3.  In May of 2005, when the child was not yet four, the parties agreed to the making of final orders with respect to his parenting. 

2. Those orders provided that the child live with his mother and that his father enjoy contact with him at all times as might be agreed and, in terms of specified time, each alternate weekend, together with Wednesday during the week as well as holiday time and special days.

3. The current application for parenting orders arises from concerns expressed by the mother about a risk presented to the child by reason of what she alleges to be the father's psychiatric illness.  Within the context of those proceedings an urgent application was brought by the mother and heard and determined by me on 27 January 2009. 

4. The catalyst for that urgent application was an incident which occurred at a changeover between the parents at the G police station at Christmas.  That incident is the subject of competing factual allegations by each of the parties. But, it seems to be an accepted fact that as a result of that incident the father was admitted as an involuntary psychiatric patient to the Royal Brisbane Hospital. 

5. Notes are now available from that hospital in respect of that admission and, it is common ground, Mr Connor subsequently has been made the subject of an Involuntary Treatment Order which sees his release into the community, but which requires of him attendance at such appointments as might be organised for him through the hospital. 

6. There is no doubt, and the mother does not deny, that the child loves his father deeply.  Equally, there is no doubt, and it seems the mother does not deny, that the child seeks out a relationship with his father and a relationship with his father occurring on a regular basis. 

7. The Court has the benefit for the purpose of today's proceedings of two reports, one prepared by Mr F who is a family consultant at this Court, and the other by Dr K, who is a reporting consultant psychiatrist. Mr F has also prepared an earlier report and, pursuant to orders made by me on 27 January, has also had the opportunity to observe the child and his father within the context of a process ordered pursuant to s 65L of the Act.

8. In the most recent report prepared by Mr F on 2 March 2009 Mr F says this:

   "61.Despite these concerns, [the child] has a relationship of considerable quality with each of his parents.  He is a delightful, engaging child in their presence.  To reduce a structure of time between [the child] and his father would sadden him.  Supervision in the long term does little to enhance the quality of a relationship between a child and a parent".

9. There is little doubt that, by reference both to the specific statutory provisions which bind me and the Objects and Principles enunciated in the Act which overarch the exercise of my discretion in this case, that there are a significant number of pointers wholly consistent with the child’s best interests that suggest that there should be a regular, meaningful and in-depth relationship between he and his father. 

10. The essential issue, both for determination today and, it would seem, at the final hearing of this matter, which is set for three days before me on 22, 23 and 24 July 2009, is the issue of risk.

11. Mr F says in his report - and I respectfully agree - that:

    "The existence of mental illness should not in itself act as an inhibitor to a relationship between a child and a parent.  A Court should only act protectively if it is the case that the parent's illness affects his/her capacity to meet the developmental needs of the child or places the child at risk".

12. It is that risk to which the orders sought by the mother, supported by the Independent Children's Lawyer, address themselves in the determination of this interim decision. 

13. I am conscious that, in arriving at an interim decision, I am bound by the principles of the Act which apply just as much to an interim decision as they do to a final decision.  In that respect I am fully aware of what the Full Court had to say in the decision of Goode & Goode (2006) FLC 92-286.

14. Equally, that decision by the Full Court emphasised that interim proceedings have inherent in them very significant restrictions, not the least of which is that factual and other findings cannot be made in respect of matters legitimately the subject of dispute on the evidence before the Court.  The Court has to be particularly cautious at arriving at conclusions that need to be tested properly at a trial. 

15. In that respect, Mr Curran, who appears as counsel for the father, quite properly says that opinions expressed by Dr K in his report should be and will be the subject of significant cross-examination.  The father himself, speaking on his own behalf at the conclusion of submissions, also indicates that there are matters that the Court should be aware of, both with respect to Dr K’s process and also with respect to ultimate conclusions reached by him. 

16. So much is clearly true.  The Court does not act uncritically on the opinions or recommendations of any expert in circumstances where it is asserted that that expert's opinion needs to be tested without that testing taking place.  That is what final hearings are all about.  The Court is, conversely, inevitably placed in an invidious position when dealing with interim applications by reason of the restrictions inherent in the nature of those applications. 

17. Nevertheless, a Court must proceed on the basis of attempting to arrive at what is in the best interest of a child notwithstanding the inherent restrictions placed upon it by reason of the process applying to an interim decision.

18. In those circumstances, opinions can be used particularly helpfully, as it seems to me, where those opinions accord with other evidence and point to a conclusion that, applying appropriate conservatism, is in the best interests of a child pending a final hearing of all disputes. 

19. In that respect, it seems to me entirely appropriate that, in interim proceedings, where, as always, the best interests of a child are the predominant and overriding consideration, a Court should proceed conservatively and with great circumspection, particularly where, as here, the issue is risk, or more accurately, the unacceptability of any risk. 

20. Mr Curran submits that the orders of May 2005 provide for significant and regular contact between the father and the child.  He makes the point that, although the father clearly has a significant psychiatric history, to which I will  make further reference in a moment, it is a fact, on his client's assertion, that from about 1993/94 when he had significant treatment, until about 2002, there had been no treatment by him. 

21. Since 2002 there has been ongoing treatment of the husband, but, during that time, time proceeded between the child and his father and a close and loving bond and relationship developed between the two of them.  The unfortunate incident at Christmas last year precipitated a change to that longstanding situation. 

22. Mr Curran submits that, by reason of the implementation of the intensive treatment order, which has significant requirements attached to it; by reason of the father’s involvement in these proceedings, including the involvement of the Independent Children's Lawyer, and by reason of orders which will be made that provide for, as it were, the sharing of information with, as he would have it, the Independent Children's Lawyer, that sufficient protections are in place such that any risk that might exist occasioned by the husband's mental health can be met. 

23. Mr Curran submits that because those conditions permit the meeting of any risk or any unacceptable risk on an interim basis, the pre-existing situation should be restored because the restoration of that pre-existing relationship and situation is clearly in the child’s best interests in circumstances where it is common ground that he loves his father, misses his father and wants to spend time with him.

24. It seems to me that all of those points are well made. 

25. However, equally, I have before me significant evidence, albeit untested evidence, that causes me to have significant concerns about the level of the risk on an interim basis. 

26. I use the qualifying phrase advisedly because I am acutely aware that the nature of the risk, the degree of the risk and, ultimately, its unacceptability can and should be the subject of testing and analysis, which such testing and analysis is yet to proceed at a trial. 

27. Independent of these proceedings, notes subpoenaed from the Royal Brisbane Hospital in and about the admission of the father to that place indicate a number of things. 

28. Progress notes made consequent upon discharge, and in particular, those made on 20 January of this year, are important  They indicate, for example, that the father had "a manic episode" and reference is made to Bipolar Affective Disorder.  Reference is also made to the fact that the father is the subject of an intensive treatment order. 

29. The notes also record:

    "Gives lengthy explanation of admission being a misunderstanding/ misinterpretation due to wife's vindictive lies about him.  Reports similar situation led to admission in 2004 under Dr [E] (notes unavailable).  Same themes as per admission notes - death threats by brother-in-law, son threatened with gun by seven-year-old son of friend of the boy's mother.  Main concern currently is re-establishing access to his son.  DOCS notified whilst an inpatient.  Wife applied to Court for full custody".

30. During the course of that presentation the treating psychiatrist conducted a mental state examination.  That mental state examination records:

    "Neatly presented, no PMA or irritability, cooperative and polite.  No pressure of speech, euthymic, thoughts mainly preoccupied with perceived conflict with ex.  Poor insight". 

31. Two matters submitted to be significant by both the mother and the Independent Children's Lawyer emerge from those notes. 

32. First, independently of both Dr K and Mr F, those notes have or contain a theme which is submitted to be recurrent when access is had to each of the three documents.  In particular, what is referred to in those notes as "poor insight" is a recurrent theme in the reports of Mr F and Dr K which were prepared independently of each other. 

33. That lack of insight or "poor insight" is particularly troubling to each of the family consultant and the reporting psychiatrist.

34. Secondly, it is submitted that the notes reveal, by reference to follow-ups with that mental health clinic that were due to take place after 20 January 2009, concerns about compliance by the father. 

35. This is important because the submissions of Mr Curran are, it will be recalled, significantly dependent upon the Court having confidence on an interim basis that the structure put in place by reference to the involuntary treatment order and all that it requires, together with the Court process, is important in the Court being satisfied about the acceptability of any risk that the evidence might otherwise reveal. 

36. On 25 February 2009 the notes from the mental health clinic reveal that the father did not attend.  The notes reveal: "No answer or voicemail on his phone.  Mobile switched off". 

37. A telephone call was made on a subsequent occasion on 12 March 2009.  The notes record:

    "Phone call to [the father] who apologised for missed appointment as "I forgot".  Informed of conditions of ITO and possible ATR if non-compliant.  [The father] expressed his surprise.  [The father] agreed to attend OPA 17/3 12.20 hours.  He has this on his calendar and letter to be sent by reception". 

38. The reference in that note is to the father attending at a follow-up appointment on 12 March at 20 past 12.  The notes go on to record on that date as follows:

    "Patient was made aware of the appointment.  Mobile phone now switched off.  Rebooked for 2/7 if DNA - will need to do ATR".

39. The husband, it seems, did not attend that appointment on 17 March.  Reference is made to activating what might be described as the more punitive aspects of the involuntary treatment order in the event that the father did not attend future appointments. 

40. The consistency between those notes and what was recorded (independent of them) by Mr F and Dr K can be seen by reference to their respective reports.  At par 29 of his report Mr F records:

    "He told he he's taking oral medications which have no effect on him.  He missed his review tribunal meeting and would have been taken off his involuntary treatment order had he attended". 

1. Significant scepticism, albeit on an interim basis, should attend that later claim in light of the notes from the Royal Brisbane Hospital.  Mr F said at par 57 of the report:

   "[The father] appears to have a history of mental illness, much of which he strongly denies.  He attributes his treatments and hospitalisations to the actions of the mother and her family.  He presents as victimised by her.  He embroils his child in this process by recording him and being quite reactive to [the child] accepting any explanation about a psychiatric condition". 

2. At par 60 Mr F goes on:

   "In my view, [the father’s] capacity does become limited insofar as he becomes very intense and agitated and uncontained in his persecutory beliefs about [the mother].  The latter part of this has the potential to cause [the child] emotional harm".

3. Dr K reports the father as follows:

   "This man told me he did not have a mental illness.  He told me he could not understand why he was kept on any medication.  He told me that he had had contact with mental health services in 2002 and in the early 1990s". 

4. Dr K goes on to say:

   "As before, he denied any significant symptoms of mental illness.  He told me he had adequate sleep, appetite, energy and concentration.  He is not suicidal, denies pervasive sadness or anger and told him he's doing little else with his time.  He is still renovating his home and told me that the stalking charges he faced previously were dropped after he accepted some form of a restraining order.  [The father’s] history in regards to all of this was, to say the least, somewhat vague". 

5. Dr K goes on to refer to "the three volumes of records in regards to this man" which the doctor described as "illuminating".  By reference to those records, Dr K says:

   "It appears that he has had contact reasonably regularly with the services since 2002 and he has at times been regulated and at other times had little contact for a period of time.  His presentations have been very similar.  This man has no insight into the nature of his illness, but always presents with significant psychotic symptoms and diagnoses of schizoaffective disorder (manic type) have usually been made".

6. The notes from the Royal Brisbane Hospital make reference to the possibility of “Bipolar Affective Disorder”. Additionally, there is reference, particularly with respect to the events of Christmas last year, of a "delusional disorder".  Dr K says:

   "It is apparent on review of [the father] on this occasion that he again has no insight into the nature of his condition, does not see the need for complying with treatment and indeed believes that any further psychiatric treatment is all essentially at the behest of his wife and is part of a 'plot'".

7. Dr K suggests that although currently prescribed antipsychotics, that the father's "past history would suggest that his compliance is only assured when he is on Depo medications".  Dr K ultimately concludes as follows:

   "I think this whole situation is of considerable concern.  This man has a longstanding psychotic illness about which he has little insight and there appears to be a significant family history as well. 

   He has yet again had an admission to Royal Brisbane Hospital, admittedly brief, and his investment in his child and in ongoing access to his child remains unchanged. 

   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 view, 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 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".

8. Clearly, then, the task which confronts this Court on an interim basis is to balance untested evidence from Dr K and untested evidence from Mr F, both of which flag concerns about the prospect of harm emanating from what they each conclude is the father's lack of insight into his mental health condition, against the clear evidence unchallenged by both parties that the child loves, needs, and wants to see his father on a regular basis. 

9. Clearly enough, the issues presented by reference to the material quoted at some length in these extempore reasons brings into play many of the considerations which the Court is mandated to take into account pursuant to s 60CC of the Act. 

10. Of those, of course, a Primary Consideration is the risk of harm. 

11. Additional Considerations include the nature of the relationship between the child and his father, the capacity of the father to parent the child even within the confines of the time sought by him, the responsibilities of parenthood and the like.

12. The balance, it seems to me, should be exercised conservatively and in a way in which the Court can be best satisfied about the potential to eliminate harm, if there be a risk of harm, in these interim proceedings.  Conservatism should, when it comes to the welfare of children, rule the day. 

13. On balance, erring on the side of conservatism and erring on the side of preventing any such risk as there might be, particularly in the light of the evidence from Dr K, indicates to me the time between the father and the child should be supervised. 

14. That said, it seems to me that I should attempt to balance against that, and take account of, additional considerations clearly relevant to the child’s best interests, not the least of which is that it is common ground that he should spend, if possible, significant time with his father. Because of those considerations I intend to order that supervised time take place at the W Contact Centre. 

15. I intend to request that that contact centre use its best endeavours to facilitate as much time as can be facilitated within the confines of the supervision I will otherwise require, such that time is afforded between the child and his father on an interim basis to the maximum amount of time which that centre is able to make available to the father. 

16. The Independent Children's Lawyer provided minutes of order, for which the Court is grateful, which were supported, with one amendment, by the mother.  Commendably, the father indicated his agreement to a number of paragraphs of those orders. 

17. Included among the matters to which the father agreed - and again it seems to me that his agreement to those matters does him credit and exemplifies that he is attempting to place concerns that the Court might have about the child to the forefront of his mind - he agrees to providing undertakings which I will request his legal practitioners prepare for him, in the appropriate Form 41A. They will provide that he:

    ·    see a consistent general practitioner who will be named, who has access to his mental health history;

    ·    will authorise any treating doctor who has provided treatment in respect of his mental health to provide such information to that general practitioner;

    ·    will continue to see the psychiatrist recommended for him by the Queensland Government (Dr C), and any officers of the mental health unit attached to the Royal Brisbane Hospital whom he might be required or requested to see;

    ·    will provide an authority to the Independent Children's Lawyer to receive information from all such medical practitioners with whom he is involved in respect of his mental health. 

18. I will make orders that, notwithstanding s 121 of the Act, a copy of my extempore reasons for judgment in this matter, the report of Dr K and the report of Mr F be provided to any named medical practitioner who is treating the father in respect of his mental health issues, including, but not necessarily limited to, Dr C and the named general practitioner earlier referred to. 

19. I will, in addition, make those orders referred to at pars 1, 2, 7, 8, 9, 10, 11, 12 and 13 of the Minutes of Orders provided by the Independent Children’s Lawyer, save that, for the purpose of these interim proceedings I will not make the order in par 10 permitting the mother to be at liberty to discuss with the child the father's current mental health. 

20. I will order in lieu of that, that the mother do all things necessary to arrange for the child to participate in the Kids Club holiday program at the Mater Hospital.  I will order that the mother not discuss with the child the father's current mental health, save as is recommended by and as is done in conjunction with any counsellor or therapist recommended by or associated with the Kids Club holiday program at the Mater Hospital or such as they might recommend. 

21. In respect of par 13, the restriction contemplated by that paragraph in respect of either parent communicating with the child with respect to any of the issues in these proceedings will be expanded to also include the tape recording of any conversations by either parent.

22. The letter from the medicolegal officer attached to Department of Health Queensland Government enclosing each of the documents comprising Exhibits numbered 15 and 18 does not reveal any objection to any of those documents being copied by any of the parties, or for that matter inspected by any of the parties. 

23. I have examined each of the documents marked with the tags ICL2, 3 and 4, and it seems to me that it is appropriate that the parties have the opportunity to copy those documents.  Accordingly, I give leave to each of the parties to copy the documents just referred to.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:    

Date:              5 May 2009