Connor and Hulett (No. 2)

[2009] FamCA 747

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT (NO. 2) [2009] FamCA 747

FAMILY LAW – CHILDREN – unacceptable risk – emotional abuse – capacity to self represent

Family Law Act 1975 (Cth)

APPLICANT: Mr Connor

RESPONDENT: Ms Hulett

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 23 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 July 2009

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: Smith & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McDiarmid

Orders

IT IS ORDERED THAT

1. This matter be adjourned for mention before Justice Murphy at 9.30am on 9 December 2009 in the Brisbane Registry of the Family Court of Australia, with a view to ascertaining whether the trial should resume at the first available date and, to that effect, whether the matter should be listed in the callover of matters awaiting trial before Justice Murphy, due to take place at 9.00am on 18 December, 2009.

2. A transcript of so much of the proceedings on 22 July, 2009 which includes the evidence of Dr K and Dr C and all proceedings after 4.30pm that day, together with the whole of the proceedings today, be prepared expeditiously and be provided to the father and to the legal representatives of the mother and two copies of each such transcript be provided to the Independent Children’s Lawyer, each free of charge to them.

3. Pursuant to s 121(9)(g) of the Family Law Act, publication of the psychiatric reports by Dr K filed in these proceedings on 25 February 2008 and 14 July 2009 and the two family reports prepared by family consultant Mr F dated 22 January 2009 and 2 March 2009; the transcripts of proceedings referred to in the previous paragraph of these orders; my reasons for judgment given ex-tempore today and these Orders be approved for publication to:

   a.the Royal Brisbane Hospital Mental Health Service;

   b.any mental health professionals treating the father in these proceedings through that Service; and

   c.through the agency of Dr C, psychiatrist, to the Mental Health Review Tribunal reviewing the Involuntary Treatment Order made pursuant to the Mental Health Act 2000 (Qld) applicable to the father.

4. The father shall, and an injunction shall issue compelling the father to:

   a.Consult the same general practitioner (or the same medical centre) in respect of all medical issues;

   b.Consult only Dr W, psychiatrist, Dr C, or such other psychiatrist (or clinical psychologist or other mental health professional) whom Dr C might deputise, nominate or approve in respect of his mental health;

   c.Provide such authority in writing as is necessary for the Independent Children’s Lawyer to receive all such information as she might consider relevant from any medical practitioner referred to in paragraph 4a and Dr W;

   d.Provide such authority in writing as is necessary to authorise Dr C, or such other health professional deputised, nominated or approved by her concerned with the care of the father’s mental health, to provide information and/or documents to Dr K only so as to allow Dr K to arrive at a clinical assessment of the father’s capacity to conduct parenting proceedings on his own account; his capacity to parent, his relationship with the child or the welfare or best interests of the child generally;

   IT IS NOTED that this paragraph of the orders is intended to operate so as to avoid, to the extent it is possible, any interference with the therapeutic relationship between the father and Dr C (or such other health professional deputised, nominated or approved by her);

   e.Provide such authority in writing as is necessary to authorise Dr K to provide to Mr F such information and/or documentation as Mr F might consider relevant to the future assessment by Mr F contemplated by these Orders.

5. IT IS DIRECTED THAT the Independent Children’s Lawyer shall, at a time deemed appropriate by her and consistent with this matter progressing as envisaged in these orders, consult with Dr K with a view to ascertaining his professional opinion, confirmed in writing in a Report to be prepared by him, as to:

   a.whether the father is a “person with a disability” within the meaning of the Family Law Rules 2004, that is to say, is 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 instruction for the conduct of” the parenting case in which he is involved;

   b.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.

6. IT IS FURTHER DIRECTED THAT the Independent Children’s Lawyer shall, consequent upon the consultation contemplated by the previous paragraph take all such steps as might be considered appropriate by her, including but not limited to, the bringing an application for the appointment of a Case Guardian for the father for the further conduct of these proceedings, should same be deemed appropriate by her.

7. The father shall, as soon as reasonably practicable after the date of these orders, provide to the Independent Children’s Lawyer:

   a.A list of persons considered appropriate by him, and who he considers ought reasonably be considered by the mother to be, suitable to supervise the time that he spends with the child;

   b.A document from each of those persons indicating:

   i.their full name, address, telephone and e-mail contact details;

   ii.a statement signed by them that each is ready, willing and able to supervise such time; and

   iii.the time or times and day or days upon which they are able or unable to conduct such supervision.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:

1. The mother shall have sole parental responsibility for the child of the marriage … born … July 2001.

2. The child live with the mother.

3. In contemplation of the Involuntary Treatment Order applicable to the father continuing consequent upon the statutory review by the Mental Health Review Tribunal, due to take place in the week commencing 27 July 2009, the father shall spend time with the child:

   a.In the event that the Independent Children’s Lawyer approves, consequent upon interviewing that person or persons, any or all of the people nominated by the husband in accordance with paragraph 7 of these orders, time with the father supervised by that person or persons:

   i.for a period not exceeding eight hours on the first and third Sunday each month commencing on the first Sunday after approval by the Independent Children's Lawyer with changeover to be effected at the mother’s residence by the supervisor; and

   ii.for a period of three hours after school on the second and fourth Wednesday each month, commencing on the first such Wednesday after approval by the Independent Children's Lawyer with the child to be collected at school by the supervisor and returned to the mother’s residence by the supervisor.

   b.In the event that no person is approved by the Independent Children's Lawyer consequent upon interviewing any or all of the people nominated by the father in accordance with paragraph 7 of these orders, time with the father occur at and be supervised by the Logan West Contact Centre, Harmony House or such other contact centre that can reasonably provide such time for the maximum time available by that contact centre on a Saturday or Sunday, but not both, in each week, and if at all possible, in accordance with the procedures of such contact centre, that supervision occur off-site.

   c.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 at any such contact centre.

   d.In further performance of the order made pursuant to s 65L of the Family Law Act on 19 March 2009 and pursuant to that section, the father spend time with the child supervised by Mr F, Family Consultant, or such other Family Consultant as he or the Manager of Child Dispute Services might recommend, in the period October/November 2009, in contemplation of the further mention of this matter on 9 December 2009

   AND IT IS REQUESTED that Mr F prepare a short further Report in respect of same.

4. The father be permitted to communicate with the child by telephone on up to 3 occasions per week between 6.00pm and 6.30pm on any day of the week or weekend upon which he is not otherwise spending time with the child pursuant with these orders.

5. In the event that the Mental Health Review Tribunal revokes the father’s Involuntary Treatment Order at the review hearing due to take place in the week commencing 27 July 2009, liberty to apply is granted to any party to re-list this matter on an urgent basis for further directions.

6. The father be restrained, and an injunction issue, restraining the father from recording, in any audio or visual form, any statements made by the mother or child for use in, or in any way connected with, these proceedings.

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. This parenting dispute between the parents of an eight-year-old boy centres around assertions as to the father’s mental health and an associated assertion by the mother that it presents an unacceptable risk to the child spending unsupervised time with his father.  The risk, she asserts, is a risk of emotional abuse emanating from her assertion that the father is uncontained in what he says about her and her family to the child.

2. The father is currently the subject of an order made pursuant to the Mental Health Act 2000, Queensland.  That order, known as an Involuntary Treatment Order (“ITO”), must by that statute, be reviewed by reference to the Mental Health Review Tribunal at not longer than six-month intervals.  The order is due for review before that tribunal next week, that is, in the week commencing 27 July 2009.

3. At the outset of the trial before me, the father initially indicated that, if the ITO was to continue, then he would seek supervised time with the child. 

4. I had some concerns that his position in that respect may have been motivated by a belief by him that the ITO would be revoked next week.  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.

5. I considered it highly likely that the ITO would be confirmed when the Tribunal met, although, of course, I could not predict that with any certainty.  Bearing that in mind, as well as the self-represented status of the father, (and the self-represented status of the father in circumstances where mental health issues are raised in respect of him,) I canvassed with the father whether, in fact, he sought, or might seek, other orders with respect to the child. 

6. The father then indicated that “if it was available,” he would seek an order for unsupervised time with the child in accordance with the arrangement that pertained some time ago, namely, every second weekend and overnight each Wednesday.

7. This matter had proceeded to trial in accordance with this court’s LAT process, and, as a result, I had had an opportunity to observe the father on earlier occasions.  I had delivered earlier reasons with respect to interim parenting orders. 

8. In light of the observations made of the father on those occasions, and in light of a relatively brief appearance by him in the witness box at the outset of the trial before me in these proceedings, I determined that it was most beneficial to the court, in arriving at a decision about the child’s best interests, that the psychiatric evidence of Dr K and, if possible, Dr C, (the father’s treating psychiatrist) be heard first.

9. In doing so, I specifically had regard to section 69ZN and section 69ZQ of the Act.  In general, the manner in which this case has proceeded pays significant regard to the principles and duties enshrined in those sections rendered mandatory upon the court hearing applications of this type. 

10. It might be observed that, absent statutory direction in that respect, this court was, in any event frequently minded to conduct proceedings in a manner contemplated now by those specific statutory provisions within Division 12A of the Act.

11. Dr K had provided two reports upon instructions from the independent children’s lawyer.  Those reports were exhibited to affidavits filed in February 2008 and July 2009 respectively.  Dr K, then, had the opportunity to observe and conduct mental state examinations of the father on two separate occasions separated by approximately 12 months. 

12. 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 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 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.

13. The father cross-examined Dr K at some length.  In general terms, the cross-examination of Dr K centred upon what might be described as the factual foundation for Dr K’s opinions. 

14. The attack, at least as I understood it, centred on assertions by the father that a number of factual assumptions had been made by Dr K from, for example, medical notes and the like which, in turn, the father suggests are informed by false statements made by people, principally the mother or those associated with her.

15. It is not overstating the case to say that the father, was, in conducting the case generally, overwhelmed by those factual circumstances and his perception of the extent to which those factual circumstances impinged upon a diagnosis of him and, consequently, any findings that might be made about, for example, his capacity to parent in the context of the applications just referred to. 

16. Further exemplification of that is given by the father’s submissions to me, which I largely heard in silence. 

17. As the father said at one point during those submissions, in the context of criticising me for failing to give him the opportunity, in effect, to present his case properly, was that, “If given the chance, I would have proved thousands of things against her.” 

18. In a similar context, the father criticises Dr K for describing him as delusional.  The father said on at least two occasions during the course of the hearing, implying that it was a word heard from the mother, that the word “delusional” did not exist.  He said, “I looked it up in the dictionary and there is no such word.”

19. In submissions, the father again returned to the factual underpinning of those opinions and referred to a number of specific matters.  For example, the issue of what was or was not said or done, or found or not found, in respect of a gun or other weapon;  whether or not the child was restrained properly in a motor vehicle at a particular time;  an allegation that the transcript of Magistrates Court proceedings had been changed;  and assertions about child support.

20. Another example emphasised by the father during the course of the hearing was statements made in a document prepared by his treating psychiatrist, Dr C, entitled “Clinical Report, Involuntary Treatment Order Review”, which became exhibit ICL1 in these proceedings. 

21. In particular, the father challenged a statement made in that report, acknowledged to have been based upon a review of a significant volume, I gather, of clinical notes, relating to an admission of the father to the mental health unit in March 1994.  The entry records:

    Left $30,000 at a service station.  Told police he was Michael, the Archangel, from Bethlehem.  Reported he was Jesus.  Reported taking LSD, which he later denied…

22. The father pointed out, and Dr C acknowledged as a likely error, that the reference to “$30,000” was a mistake and ought to have been “$3000.”  

23. In a similar vein, the father took particular umbrage, understandably so, about the reference to taking LSD.  As I attempted to point out to the father, there is no allegation, necessarily, that he took LSD.  Rather, there is an allegation that he reported taking LSD and later denied it; by no means the same thing.  The father, in his material, seeks to emphasise that he has never used any form of illegal drug and, indeed, does not effectively partake of any drugs, whether legal or illegal.

24. Whilst I can perfectly understand that, in those circumstances, the father would be concerned to see that in a report, particularly a report to be used as part of a Mental Health Review Tribunal process, I attempted to explain to the father on more than one occasion that no assertion whatsoever was made in the context of these proceedings that he was either a drug taker, had been involved in drugs or that his parenting was in any way, shape or form informed by any such allegation.

25. Dr C, too, when she gave evidence, referred to the same thing and attempted to point out, again more than once, that no assertion is made by her that he is affected by drugs or that his mental condition is affected by drugs or that any treatment provided by her relates to any drug-induced factors.  But the father returned to that subject, yet again, later in the hearing.

26. Dr C, who, as I have said, is the father’s treating psychiatrist, gave evidence immediately after Dr K.  Ms McDiarmid, who appears as counsel for the Independent Children’s Lawyer, asked each of Dr K and Dr C questions directed towards what might be described as the father’s capacity to represent himself in these proceedings. 

27. I gather that the catalyst for those question was, at least in part, that, as part of ICL1, the 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.”

28. The questions by counsel for the ICL prompted what I think can best be described as very guarded responses by each of Dr K and Dr C. 

29. It needs to be accepted that each of those questions were, as it were, questions without notice.  But, nevertheless, it was abundantly plain to me that each of the two psychiatrists were troubled by the father’s capacity.  After a process of rumination, Dr K gave evidence that he thought that the father would be “fraught with difficulty in conducting his own litigation.”

30. Dr C gave evidence which extended into the afternoon of the first day of hearing.  When asked the same question by counsel, Dr C, too, was clearly troubled by it, and I gained the clear impression during that part of her evidence that she was very troubled by the issue of whether the father had capacity to conduct the proceedings before me. 

1. Before the end of Dr C’s evidence, the father determined to leave the courtroom.  I asked him where he was going.  He said he was going to the toilet.  The transcript, which I have ordered, will reveal what he said thereafter. 

2. Whatever his intention when he left the courtroom, the fact is he did not return for the balance of the hearing that day. 

3. Again by reference to section 69ZN and ZQ, and particularly because, at that stage, Dr C’s availability to give evidence on another occasion was extremely limited, I determined to continue to hear her evidence but to order a transcript of the proceedings that occurred consequent to the father removing himself from the courtroom.

4. Ultimately, a technical issue with the doctor’s phone in any event terminated her evidence on that occasion.  The following day, the Independent Children’s Lawyer contacted Dr C, and Dr C indicated some availability to give further evidence at lunchtime today. 

5. Counsel for the Independent Children’s Lawyer indicated that the doctor was prepared to provide an opinion as to her patient’s capacity, but was unable to open what that evidence would be. 

6. In the intervening time, I, too, had thought long and hard about my impressions of the father, albeit that they are lay impressions gained during my observations of him on the first day of this hearing and on earlier occasions, as well as by listening to the evidence given by Drs K and C to which I have earlier referred.

7. I was increasingly troubled by the extent to which I could be satisfied that the father could be relied upon to act in his best interests and, indeed, in that sense, in the child’s best interests, during the course of the proceedings. 

8. That feeling was underlined - and again this is something upon which I had ruminated overnight - by my saying to the father on two occasions yesterday that I wasn’t convinced that he was necessarily helping his cause in the manner in which he was conducting himself and asking questions.

9. I immediately seek to emphasise that I do not suggest for a moment that the father has in any way been disrespectful or disruptive to these proceedings.  Quite the contrary.  However, I was as a lay observer, troubled by the nature and extent of the mental illness the father may have been suffering from whilst representing himself in these proceedings. 

10. In that respect, 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. 

11. This troubling and direct evidence from Dr K, given, as it were, to the father himself was put by me to Dr C when she gave evidence the following day.  I specifically put each of those matters to Dr C and invited her opinion.  She said she agreed with each. 

12. Accordingly, the court was confronted by two opinions:  one from a reporting forensic psychiatrist; the other from the father’s treating psychiatrist, who had been treating him since January 2009, to the effect that he suffered from a serious mental illness and had no insight into the fact that he suffered from such illness.  Needless to say, this is particularly troubling evidence in the context under discussion.

13. At the end of the first day of the hearing the court was confronted with the following matters:

    a)Independent concerns based on observations of the father on earlier occasions, as to his mental status.

    b)Good evidence from a forensic psychiatrist and a treating psychiatrist that he suffered from a serious mental illness, including a psychotic illness, and had little, if any, insight into that fact.

    c)Uncontroversial evidence that the father was subject to an ITO.

    d)Uncontroversial evidence that the ITO was to be reviewed by the Mental Health Review Tribunal next week.

    e)The father had said when he absented himself from the courtroom toward the end of the first day words to the effect of, “I may be gone some time”, and the court accordingly, at the end of that day, was unsure whether he would return for the second day.

    f)In respect of the review, I repeat that I had, myself, doubts that the ITO would be revoked by the Tribunal.  I specifically asked Dr C about that.  She said she would recommend against its revocation and she considered it unlikely that the order would be revoked next week. 

14. Putting all of those matters together, I raised at the end of the first day, (in the absence of the father), what should occur in the child’s best interests.  I flagged in that context the possibility of an adjournment so as to ascertain, perhaps, evidence with respect to the father’s capacity to conduct the proceedings in the absence of a case guardian, definite evidence about his status under the Mental Health Act 2000, Queensland, and, thirdly, the impact of further treatment by Dr C (and for other mental health professionals at the Royal Brisbane Hospital) in the likely event that the ITO would be continued next week. 

15. In that latter respect, it should be pointed out that, in broad terms, Dr K was pessimistic, in prognostic terms, but Dr C, significantly less so. 

16. In the event, the father did appear, albeit an hour or so late, on the second day, and, in the intervening time, Ms McDiarmid gave the indication earlier referred to about Dr C giving further evidence.  Ultimately, she did so. 

17. The doctor was asked specifically by me about the father’s capacity.  She indicated that the father’s capacity would vary according to his mental health at the time, but she “did have some concerns” about his capacity at this time.

18. She gave evidence that the father’s view of the consequences was distorted about how the case would, as he saw it, invariably go against him. 

19. My concerns about capacity were such that I determined to adjourn the proceedings in the manner foreshadowed the previous day and to seek submissions about what orders should be made in the interim in that event.

20. Ultimately, the father indicated that he, too, was willing to have the matter adjourned for five months or so, so as to allow a number of things to occur:  in his case, I gather, primarily the opportunity to fund legal representation on another later occasion. 

21. In the event that the proceedings were adjourned in the manner just described, I sought submissions about the issue clearly at the centre of this case, namely, as Ms McDiarmid, with respect, correctly put it, the collision between the two primary considerations in section 60CC of the Act.

22. Of course, it was neither suggested, nor is it the case, that flagging that as the significant issue in this case is in any way to ignore the other matters which a court must take into account, whether by reference to the objects and principles of the Act, or the additional considerations provided for in section 60CC. 

23. It is plain that many of the matters already discussed find reflection in considerations other than the two primary considerations just referred to.  For example, the respective capacities to parent of each of the parties, their willingness and ability to provide time, and the views of an (albeit eight-year-old) boy are all matters which find reflection in the evidence before the court.

24. But where an issue such as mental health is present in as raw a form as it is in this case, and where a court is inclined to the view, as I am in this case, that, but for concerns about the welfare of the child in the father’s presence because of those mental health issues, the mother would otherwise be supportive of a meaningful relationship occurring between the child and the father, it can be seen that the acute issue in this case, earlier expressed, lies at the centre of the decision about the child’s best interests. 

25. That is no less so when the decision is about his best interests between now and a potentially later continuation of the trial, in light of the father’s then mental health.

26. The father, would I think, contend - although, as I have earlier indicated, his submissions, with respect, became hopelessly lost in a plethora of factual details - that he should spend essentially unrestricted time to the child each second weekend and each Wednesday.  The mother and the ICL contend that, on an interim basis, the risk is such that time between the child and his father should be supervised. 

27. Mr F has prepared two comprehensive and helpful reports in these proceedings. 

28. Significantly, as it seems to me, Dr C, when giving evidence yesterday, made a number of comments about the father.  For example, that he was “incredibly fond of his son,” that he wasn’t a danger to his son in the physical sense, that although she hadn’t seen the father with his son, on all occasions when he had spoken of his son she perceived that the interaction was spoken of in entirely appropriate and warm terms.

29. Dr C said that Mr F’s ultimate recommendations in the second of his two reports “sit very comfortably” with her view of the situation.  Those comments were made in the context of Dr C giving evidence that she (and, inferentially, then, the court) “hadn’t yet seen the father at 100 per cent.”  Her treatment was directed towards “getting him 100 per cent in the community.” 

30. A person with significant mental health issues being treated in the community is not ideal in the sense that compliance with medication is a universal issue. 

31. Her clinical impression was that, since 2002, the drive to act upon his concerns on the part of the father has waxed and waned.  The ultimate recommendations with which Dr C was “very comfortable” - by Mr F - were to the effect that, with a number of significant conditions, the child spend time with his father each alternate weekend from after school on Friday to before school on Monday and for half the school holidays. 

32. That recommendation is caveated by this statement:

    Should [the father’s] medical providers express a view that his parental capacity is jeopardised, or should [the father] fail to meet his undertakings, [the child] spends time with [the father] under supervision at a contact centre, subject to the availability of the centre.

33. The undertakings earlier referred to relate to the conditions which I have just referred to.  Mr F saw it as “fundamental that the father continue to see a consistent general practitioner who has access to his mental health history, a consistent psychiatrist or mental health service, and that he provide an authority for the mother to receive information from his medical providers as to their views about his current parenting capacity.” 

34. It will be appreciated, then, that Mr F, too, was concerned about the fact that the father’s mental illness may be of a waxing and waning type and may vary in its impact from time to time.

35. The concern on the part of the mother is encapsulated neatly by F at paragraph 44 of his report:

    Ideally, (the mother) is hopeful that she and (the father) can start to deal with each other as parents.  She said, “I would love to have a counselling thing for (the father) to stop him from saying things to [the child].  [The child] thinks I’m a liar and it’s confusing for him.  If I’ve said we will go down to the park, and it rains, he says, ‘You’re a liar.’”

36. Dr C said that the risk for the child emanates from the father being, as a result of his condition, “disorganised and preoccupied,” which she described as the father “getting to the point where he can’t contain himself to not talk about the mother and these issues in the child’s presence.” 

37. Furthermore, Dr C made the point that when the father’s illness is florid, that is, at the height of when he is unwell, the risk of disorganisation points to concerns that his judgment is impaired, which might, obviously enough, significantly impact upon his parental capacity. 

38. The doctor was prepared to accept what seems to me to be relatively self-evident and that is that risk can never be eliminated.  As is submitted by counsel for the Independent Children’s Lawyer, Dr C said, when pressed on whether the father was likely to not contain his thoughts and talk about them in the presence of his son, “The risk is there, yes.  I don’t know whether some of that might dissipate if we can get him better.”

39. In her evidence today, however, Dr C was keen to point out that the stress of these proceedings should be not, as it were, underestimated.  She said that she considered that the clinical notes evidence, that when one went through the father’s history, that the periods of more acute unwellness occurred, for example, at the time of the break up of his relationship. 

40. In the midst of those episodes, however, her general clinical impression was that the father was functioning generally fairly well “without Mental Health Services coming to light.”

41. She cautioned against “getting too blinded” by the fact that the father had a mental illness.  As she pointed out, and is undoubtedly true, many families existing without apparent mental illness diagnoses have considerable dysfunction and where the sorts of issues contemplated within this case are also very significant issues.  However, that, too, was caveated by the statement that, in those cases, they may not occur “to the same intensity” as they occurred with the father at times when his illness was particularly florid.

42. Her evidence today was more optimistic, I thought.  She said that, with treatment, there was “a good possibility” that significant inroads could be made with respect to the issues just referred to. 

43. The pessimistic case is, I think, best exemplified by the focus by the father on the issues evident in his questions of witnesses and in his submissions.  As I have said, each of those was laden with, in my view, a preoccupation about the truth or otherwise of specific incidents. 

44. It may well be, of course, that what the father says about some incidents is factually correct.  It may well be, of course, that some assertions by the mother are factually incorrect.  Decisions about those matters are not open to me, by reason of the manner in which this case was conducted.

45. However, so that the father clearly understands it, in my view, those matters were not particularly relevant. 

46. The reason that they are not particularly relevant was given to the father by Dr C in very clear terms.  Dr C said, “Even if everything about the wife, including everything about the death threats, is true, I still think I have seen symptoms in you that justify the diagnosis of schizoaffective disorder”.  In saying that, the doctor went to say that the primary foundation for that was “the intensity with which these matters take over your life.”

47. In that respect, ICL1, authored by Dr C, says in respect of the period January 2009 to the present, (noting that the current mental state assessment is made by Dr C as at 9 July 2009, and the document is signed by her on 21 July 2009):

    Since March, both the CM [case manager] and psychiatrist have noted [the father] to be presenting with more hypomanic features - increasingly prolixic in speech, circuitous and over-inclusive in conversation, more disorganised in behaviour, questionable financial decisions, continue to be very stressed and preoccupied by ongoing Family Court matters and past and ongoing reported injustices by legal systems and ex-wife.

48. The reference to disorganised behaviour and questionable financial decisions are beyond comment by me in these proceedings.  However, the reference to prolixity in speech and the circuitous and over-inclusive manner of conversation were abundantly evident in the proceedings before me. 

49. So, too, was the father’s stress, (unsurprisingly) and so, too, was his preoccupation with reported injustices, particularly those relating to the legal system and his ex-wife.

50. Ultimately, then, a decision needs to be made between now and when the trial of this matter might resume, about what time the child should spend with his father. 

51. I am statutorily obliged to consider those matters which the Act sets out, including the child having a meaningful relationship with his father to the extent consistent with his best interests.  I interpolate here that I have no hesitation in finding - and it should be evident from the matters already referred to - that the presumption of equal shared parental responsibility is rebutted.

52. There is no doubt whatsoever on the evidence before me that the father dearly loves his son.  I have no doubt on the evidence before me that, despite the father’s preoccupation, as I assess it to be, with the plethora of factual matters and injustices referred to by him, that his motivation in seeking the orders that he seeks is a sincere one designed for him to be a meaningful, proper, appropriate and loving person in the child’s life. 

53. I do not think that any part of the application made by the father is with some form of ulterior purpose directed towards the mother.  I believe his motivation is sincere and born out of a love for, and desire to spend time, with his son. 

54. It seems to me, on all the evidence, that the mother effectively concedes that.  Moreover, it seems to me, on the whole of the evidence, that the mother would promote willingly a relationship of real meaning between the child and his father, and that her concerns, too, in respect of the child are genuine. 

55. She is genuinely concerned about his welfare in the broadest sense and, in particular, emotional harm to him arising by reference to what might in very broad terms be described as the unpredictability of the behaviour of the father at times when his mental illness is, or might become, particularly acute.

56. I hope that hearing the evidence of Dr C has allayed, to some extent, some of those concerns. 

57. Nevertheless, the opinions of Dr C are, of course, guarded, as they should, with respect, appropriately be. 

58. The impressions just recorded are mine arising from all of the evidence, but I should record what Mr F says in that respect. 

59. At paragraph 61 of his report, Mr F says:

    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.

60. The problem created for this court arises by reason of the mandate to protect the child from, relevantly, psychological harm by being exposed to, relevantly, emotional abuse.  As Mr F says:

    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.  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.

61. In assessing the degree of risk, regard, in my view, ought to be had to the nature of the risk, the extent of the risk, the manner in which any such risk is manifested and the steps that might otherwise be taken to alleviate any such risk. 

62. At this point in my judgment I am aware and express my respectful agreement with the extracurial comments made by the Honourable John Fogarty, AM, in the Australian Journal of Family Law, when writing about the notion of unacceptable risk within this court.

63. In this case, in considering risk, I have had regard to a number of matters which, in my view, tend to ameliorate the risk. 

1. The orders I intend to make are framed in a way that assume the ITO will continue from next week for a period of six months.  That, in turn, assumes that Dr C and the other staff at the Royal Brisbane Mental Health Service will, by statutory mandate, be involved in the regular maintenance and supervision of the father’s psychiatric condition.

2. Furthermore, as exhibit ICL1 makes clear, the father is acutely aware that the ramifications of his failure to attend for treatment and to fail to take the medication prescribed for him may well have significant ramifications, including his hospitalisation.  Additionally, he is only too acutely aware - again as that exhibit makes clear - that any such stance by him may well have very significant ramifications for his parenting case. 

3. Accordingly, it seems to me that the presence of the ITO and the continuing treatment and medication effectively inherent in it provides some means of ameliorating the risk.

4. So, too, I consider that the father is acutely aware that, as it were, the eyes of the court are upon him and that the matter will be returned to the court after a period of time.  Associated with that, the father has now had the opportunity of hearing both Dr K and, more importantly, as it seems to me, Dr C give evidence about his condition and the need for him to stay with the treatment being provided to him.  Specifically, the father has had the opportunity to hear Dr C say that, with treatment, the prognosis is reasonably optimistic, but that treatment is essential.

5. Those factors, too, it seems to me, assist in ameliorating any risk. 

6. On the other side of the coin, it seems to me that, in general terms, particularly on an interim basis, a court should proceed cautiously.  In particular, regard should be had by a court, in my view, to the old medical adage, “First, attempt to do no harm.” 

7. Secondly, the nature of the father’s condition is chronic and relapsing.  I have had regard to the concern expressed by Dr K in his report.  I have been troubled by the father’s observable appearance during the proceedings before me, as will be evident from what I have said in another context earlier in these reasons.

8. As is evident from the DSM-IV, and in turn by what Dr C said about that, “the absence of precipitating events or stressors is associated with a better prognosis.”  That has its corollary; where those significant stressors are present, then the illness is likely to be at a more acute stage, a position essentially supported by Dr C. 

9. In essence, I took Dr C’s evidence to say that, if the stress of these proceedings could be removed, if the father participated in the treatment which she strongly recommended, and if, as part of that, the father was compliant with the medication and other treatment provided, that some significant gains might be made in the not too distant future, but, at the moment, when those stressors were, as it were, at their peak, that might not be the case.

10. In particular in that respect, Dr C was very concerned about the therapeutic relationship between she and the father.  She described it as “tenuous” in any event.  She said that the subpoenaing of material from the Royal Brisbane Hospital and, inferentially, her giving evidence in these proceedings were likely to have exacerbated that tenuousness.  And she expressed considerable concerns about the re-establishment of that therapeutic relationship at the end of these proceedings.  That, too, it seems to me, heightens the potential for risk and causes me significant concerns.

11. It will be evident in the orders that I have made that I have attempted to do what is possible within the terms of those orders to preserve, as much as is possible, that therapeutic relationship:  it is a fine balance. 

12. I fervently hope that the father, who indicated during the course of the proceedings he may be able to obtain “a number of people” who would be able to provide supervision, whether by way of commercial arrangement with him or otherwise, is able to find those people.

13. My orders made provision for them to supervise the time between the father and the child for much longer periods of time and, obviously enough, away from a contact centre, and, in my view, those orders best represent the balance to be struck between what Ms McDiarmid described accurately as the collision between the two primary considerations in this case. 

14. Accordingly, I fervently hope that the father is able to find supervisors suitable to the Independent Children’s Lawyer so that the time provided for in the first component of those orders can, in fact, be exercised.

15. In the event that all of the possibilities with respect to that supervision do not bear fruit, unfortunately I consider that conservative safety dictates, on balance, that time between the father and the child should be supervised until such time as this matter is heard again or earlier order is made by the court. 

16. It is for those reasons that I make the substance of the orders earlier indicated.

17. I should say one or two words about the specifics of some of those orders. 

18. It will be clear that the orders earlier outlined make provision for the Independent Children’s Lawyer to remain in these proceedings and to conduct inquiries through Dr K in respect of the father’s capacity to participate on his own account in the mooted further hearing of this matter.  Reference to the evidence of Dr C will make obvious why the orders have been framed in that way.  In simple terms, they are framed in that way to preserve as much as possible the therapeutic relationship between Dr C and the father. 

19. So, too, with that consideration in mind, the orders provide for a flow of information - “some transparency,” as Dr C called it - in the future treatment of the father and his mental health status so that the Independent Children’s Lawyer can be better informed in respect of those issues prior to, and at, any further hearing.

20. Finally, I am heartened by the evidence of Dr C that she was in broad agreement with the matters that Mr F addressed in his report and in his recommendations. 

21. Ultimately, I have concluded that the conditions placed by Mr F on his recommendation for unsupervised time can’t realistically be met at the moment, given the father’s current mental status and other factors.  Nevertheless, it seems to me that Mr F is likely to be able to provide to the court significant additional data if it is necessary for this matter to return to a further hearing in the manner contemplated by the orders.

22. For that reason, it seems to me that I should continue the order made earlier pursuant to section 65L, but I have postponed any time that Mr F spends with the father and the child pursuant to that order so as to allow time for, as it were, the dust to settle after these proceedings and for any treatment provided by Dr C in the intervening time to take place without that additional requirement upon the father and the child.

23. For those reasons, I make the orders earlier indicated.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  19 August 2009