CONNOR & HULETT

[2012] FamCA 399

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT [2012] FamCA 399

FAMILY LAW – CHILDREN – where the father suffers from a significant mental illness – where the existing orders provided for time between the father and his son, subject to the father complying with certain requirements, on a graduated basis, resulting in unsupervised overnight time – where overnight time had been occurring between the father and his son – where the evidence suggests the father’s condition has significantly deteriorated – where the father has not spent time with his son since his condition deteriorated – where the father did not appear at the hearing – where there is no medical evidence before the Court regarding the state of the father’s mental health – whether orders should be made with respect to time between the father and his son – where orders made suspending time – where the father is required to comply with certain requirements before time between he and his son recommences.

Family Law Act 1975 (Cth)

APPLICANT: Mr Connor

RESPONDENT: Ms Hulett

INDEPENDENT CHILDREN’S LAWYER: Ms Terrance

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 22 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 22 May 2012

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms K. Feeney of Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms K.P. Terrance of Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. In respect of the orders made on 16 March 2011:

   a.Paragraphs 3, 4, 9, 18 and 19 are discharged.

   AND IT IS NOTED THAT: There is no evidence before the Court as contemplated by paragraphs 3 and following of the orders made on 16 March 2011, save that the Independent Children’s Lawyer has filed an affidavit by Dr K, psychiatrist.

   b.Paragraphs 10 and 11 be suspended to the effect that there be no time or communication between the father and the child.

IT IS ORDERED THAT

1. In respect of the orders made on 16 March 2011:

   a.Paragraphs 6, 7 and 8 be varied by deleting the phrase “the Independent Children’s Lawyer” and replacing it with the words “the solicitors for the mother”, together with any consequential changes resulting there from.

   AND IT IS NOTED THAT despite the time frames contemplated by paragraphs 5, 16 and 17 of the orders made on 16 March 2011 having passed without compliance by the father, the court intends that, prior to the reintroduction of time and communication, the father will comply as and when his mental health will permit.

2. Any application by either party for the resumption of time or communication shall first be referred to Mr P, Family Consultant (or in his absence such other Family Consultant as the Director Child Dispute Services shall nominate) for the purposes of Mr P consulting with the mother, father and B and producing thereafter a report to the Court to include:

   a.recommendations as to whether time and/or communication between B and the father should resume;

   b.and if so, for what periods and in what form.

3. Any such application by either party be listed initially for mention before Justice Murphy unless he is unavailable in which case the matter shall be listed before another judge.

1. A transcript of the hearing today be prepared and forwarded to each of the parties at no cost to them.

1. Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the solicitors for the mother be authorised to provide an account of these proceedings, namely the documents listed hereafter, to any and all of the health professionals referred to in paragraph 6 of the Orders annexed hereto and shall do so within 14 days of being advised by the father of the identity of such professionals:

   a.The orders of today;

   b.The judgment of today;

   c.The transcript of the hearing today.

1. The Independent Children’s Lawyer be discharged.

1. AND IT IS RESPECTFULLY REQUESTED THAT due to the complexity of this matter and in light of the discharge today of the Independent Children’s Lawyer, that consideration be given by the Director of Legal Aid Queensland to advancing further legal aid to the mother.

IT IS FURTHER ORDERED THAT

1. For ease of reference and so as to assist the parties and the father in particular, parenting orders currently applicable as a result of these orders be annexed in a consolidated form to these orders.

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.

ANNEXURE TO ORDERS OF 22 MAY 2012

IT IS ORDERED THAT

1.The child B CONNOR (“the child”) born … July 2001 reside with the mother.

2.        The mother have sole parental responsibility for the child.

…

5.        The father shall:

a.Within 30 days of the date of these Orders consult with a Psychiatrist (“the treating Psychiatrist”);

b.Thereafter consult with the treating Psychiatrist at all such times as the treating Psychiatrist shall recommend;

c.Undertake all such treatment, including medication, as may be recommended by the treating Psychiatrist;

d.Undertake all such consultations and/or testing as might be required or recommended by the treating Psychiatrist for the purpose of ensuring or monitoring compliance with recommended medication and/or other recommended treatment; and

e.In consultation with the treating Psychiatrist, his general practitioner or other appropriate health professional, avail himself of all such programmes as might be available so as to engage a Case Manager or Psychologist such that regular follow up and consultations can occur with that person.

6.The father shall provide to the solicitors for the mother in writing the name and address of:

a.     The treating Psychiatrist;

b.Any general practitioner involved in monitoring or treating his mental health;

c.The Case Manager or Psychologist engaged pursuant to paragraph 5 of the Orders made on 16 March 2011; and

d.The name and dosage of any medication prescribed in respect of any aspect of his mental health by the treating Psychiatrist or any general practitioner

and shall, each month thereafter, confirm in writing that each and all of those details remain the same or, if changed, advise in writing each and all respects in which they have changed.

7.The father shall provide to the solicitors for the mother an authority in writing permitting her to receive information from any and all of the health professionals referred to in the previous paragraph of these Orders, but such authority be confined to information which reveals:

a.A broad outline of the nature of the treatment or consultations recommended;

b.The dates of attendance arranged and whether the father did, or did not, attend;

c.The name and dosage of any medication prescribed;

d.Any testing or consultations designed to monitor compliance with any treatment or medication;

e.Any non-compliance with any treatment or medication; and

f.Any concerns held by any such health professional as to any deterioration in the mental health of the father that, in the opinion of the health professional, has the potential to deleteriously impact upon the child during time between he and the father in accordance with these Orders.

8.Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the solicitors for the mother be authorised to provide an account of these proceedings, namely the documents listed hereafter, to any and all of the health professionals referred to in the previous paragraph of these Orders and shall do so within 14 days of being advised by the father of the identity of such professionals:

a.The Reasons for Judgment of this court of 19 March 2009, 23 July 2009, 5 February 2010, 1 November 2010 and 16 March 2011;

b.The transcript of the evidence of Doctors K and C of 22 July 2009 and the transcript of the further evidence of Dr C of 23 July 2009;

c.The reports of Dr K dated 18 February 2008, 10 March 2009, 6 November 2009 and 19 January 2011;

d.The reports of Mr P, Family Consultant, dated 9 November 2009 and 2 March 2011;

e.The Clinical Report of Dr C to the Mental Health Review Tribunal dated  21 July 2009 (“Exhibit ICL 1” from 22 July 1999);

f.The report of Dr O to the Mental Health Court dated 19 July 2009 (“Exhibit ICL 5” from 14 March 2011);

g.The report of Dr O dated 24 September 2010;

h.The report of Dr W dated 10 August 2010; and

i.The transcript of the concurrent evidence of Doctors K, O and W and Mr P of 14 March 2011.

…

13.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 in writing within seven days of any change occurring and shall authorize each and all of the same to provide to the father at his cost all such information as he might reasonably require in respect of any and all such education and/or treatment.

14.Neither parent shall criticize, denigrate, demean or ridicule the other, nor any members of the other parent’s family or household in the presence of the child nor allow any other person to do so.

15.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.

16.Within 14 days the father do all things necessary to consent to and authorise the child to engage in the “[Children’s Program]” at Hospital 1.

17.After 31 January 2012, the father shall provide his written authority so as to permit:

a.The treating Psychiatrist to speak to Dr K and, thereafter, the solicitors for the mother shall obtain an updated report from Dr K; and

b.The solicitors for the mother to obtain a report from the treating Psychiatrist of the father’s treatment, compliance with medication and attendance for treatment and, upon receipt of such report, the solicitors for the mother shall provide same to the father or his legal representative.

IT IS NOTED THAT the intention of any such report is to:

aa.Ascertain the status of the father’s mental health in so far as it might impact upon his time with the child; and,

bb.In that respect, the father’s compliance with treatment, including any prescribed medication; and

cc.Whether the state of the father’s mental health and any non-compliance with treatment and/or medication is such as to present an unacceptable risk to the child during ordered, or potentially additional, periods of time with the father; and

dd.Nevertheless confine such report so as to, in so far as it is possible, preserve the therapeutic alliance between the treating Psychiatrist and the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Connor & Hulett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4645 of 2007

Mr Connor

Applicant

And

Ms Hulett

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 16 March 2011, I finalised a hearing of a matter that had commenced almost two years previously.  The reasons given on that date should be seen and read as essential background to the orders to be made by me today. 

2. In very broad terms, in this profoundly sad case, as I have found that the mother of B (“the child”) has a genuine desire for him to have an appropriate loving and committed relationship with his father.  I’ve also found, as a fact, and have no doubt, that the mother is genuinely committed to the promotion of that relationship, in a manner that is consistent with the child’s best interests. 

3. What intervenes between that finding and the sad situation that confronts the Court today, is that the father is significantly mentally ill. Worse than that, the father does not appear to have any insight into the fact that he suffers from a significant mental illness. 

4. As a result, the Court has struggled to balance the child’s clear need and desire to have an appropriate ongoing loving relationship with his father (as indeed, the mother also desires) with the fact that the first priority of this Court should be to protect the child from any harm, whether that be any physical harm, or indeed, emotional harm.  The Court has been assisted for some time now by reports from Dr K, who is a psychiatrist. 

5. Reference to the reasons given on 16 March 2011 will see the extent to which the Court has attempted to affect the balance to which I have just referred. 

6. Reference to those reasons will also show that, despite the best efforts of Dr K and, it might be said, the Court, no one, it seems, has been able to convince the father that he is significantly unwell, as Dr K diagnoses.  In that respect, I think it needs to be said that the process has not been assisted by the intervention of a Dr W, a psychiatrist who was consulted by the father.  The Court sought to facilitate a process between Dr W, who, it was understood, was the father’s treating psychiatrist, and Dr K.  The purpose of that was to maximise the potential for the father’s mental health to be stabilised, and in turn, to allow that stabilised mental condition to form the foundation of the time and communication between the father and his son. 

7. To say that Dr W has been less than cooperative in attempts by the Independent Children’s Lawyer to comply with the orders made by me on 16 March 2011 would be an understatement.  Quite why that should be so, in circumstances where the psychiatrist would, I would have thought, have his patient’s best interests as a first priority, remains a mystery.  In any event, the most recent report from Dr K can tragically be described, crudely, but I think accurately, as, “more of the same.”  Dr K’s ultimate assessment is as follows:

   This man’s mental state was not significantly different from when I had seen him.  The situation, to my mind remains relatively unchanged.  Certainly, at the current time, the father does not appear to be unwell and is clearly enjoying contact with his son.  My reservations in regards to this man’s mental health remain unchanged.  It would appear that the father is completely resistant to the notion of any form of psychiatric treatment, with which he does not agree, and my concerns, in regards to the potential risks that he poses remain.

   The father does not appear to have a relationship with a treating psychiatrist at the current time, and his attempts at treatment would appear to be, at best, tokenistic.  It does not seem as though, over an extended period of time, the father has come to any understanding that there is a link between his own mental health, his capacity to parent, and the relevance to ongoing contact with his son.

8. With those opinions and sentiments, I respectfully, completely agree. 

9. As I have said, those opinions and sentiments remain those which Dr K has held over a long period of time.  Indeed, in earlier parts of these proceedings, I permitted the father to cross-examine Dr K.  There ensued an interchange between them, where the father challenged Dr K’s opinion that he was significantly psychiatrically unwell, and Dr K confirmed, in the clearest possible terms and directly to the father that he was, indeed, significantly psychiatrically unwell. 

10. Despite the father’s apparent inability to digest what Dr K was saying (something which I consider to be a likely manifestation of his illness) Dr K was in fact saying that if the father could obtain some acceptance of, and insight into, his mental condition, and to accept appropriate treatment for it, then prognostically, the situation would be highly likely to be significantly improved, with a consequential significant improvement in the nature, quantity and content of time between the father and his son. 

11. Tragically, that which Dr K has portended over a long period of time has it seems, come to pass. 

12. For reasons given earlier today, I gave leave to the mother to file and read an affidavit by her sworn today, despite the fact that the father does not attend at these proceedings. 

13. In that last respect, I earlier put on the record that, on an earlier date, the father also did not appear.  The father, on that occasion, contended that there was some confusion about the date of that hearing, despite the fact that the Court had addressed correspondence to him.  He, in fact, attended at the court precinct on a different day.  The father also does not appear today. 

14. One of the reasons for permitting leave for the mother to rely upon that affidavit (as well as the more obvious reason, that by reference to division 12A of the Act, it is important for this Court to have the best information available to it, in respect of the best interests of the child) is that the affidavit sought to, as it were, update the circumstances pertaining to the situation between the father and the child.  Sadly, it seems plain on such evidence as the Court currently has, that the father is again floridly unwell. 

15. Perhaps no better evidence needs to be seen of this, than the handwritten note from him, which is exhibited as SH2 to the affidavit of the mother, to which I have just referred. 

16. Unfortunately, as is so often tragically the case, people with psychotic mental illness, who have no insight into their condition and accordingly remain untreated, come into collision with the criminal law and other aspects of the legal process.  That appears to be the case here.  It seems that, as a result of threats allegedly made by the father to the mother, and to her broader family, the father has been charged with a criminal offence. 

17. Reference to my earlier orders and reasons will, I hope, see an attempt by the Court to structure a process that was designed to facilitate the father receiving appropriate treatment, and for the Independent Children’s Lawyer to receive information about that treatment, so as to appraise the Court of it. 

18. Orders were made effectively allowing for a period of about 12 months or so within which all of the matters referred to in those orders could and should have taken place.  The information given by Ms Terrance, who appears at the Independent Children’s Lawyer this morning, is that very few of those steps that were both suggested to, and required of, the father have occurred.  Troublingly, as I have already indicated, what was hoped to be a psychotherapeutic relationship with a psychiatrist, Dr W, has not eventuated. 

19. There is reference in Dr K’s report to the father telling him of the possibility of the father seeing a psychiatrist, Dr Z. But, Dr K records at page 4 of his report, the circumstances in which Dr Z’s name emerged during the interview between Dr K and the father.  Those circumstances do not give rise to significant optimism about the father obtaining the sort of treatment and support that my orders of 16 March envisaged. 

20. The orders made more than 12 months ago envisaged a graduation of time between the child and his father in light of the circumstances to which I have just referred.  That graduated time can be seen to have “culminated” in weekend time.  I am told, and have no reason to doubt, that that graduated time, in fact, occurred, and the father had been enjoying weekend time with the child, up until about Easter this year. 

21. That this should occur is consistent with the findings that I earlier made in respect of the mother’s genuine commitment to time, between the child and the father, and my finding in respect of her willingness and ability to promote that time.  It is also consistent with what was observed by Dr K ahead of the last occasion this matter came before the Court, and indeed, in Dr K’s most recent report, in April of this year, namely, that the father was, to all intents and purposes, well and functioning relatively normally. 

1. The difficulty is, as indentified by Dr K on many earlier occasions that it was and is highly likely that this situation would not remain, because of the nature of the father’s psychotic illness, and at some point, Dr K predicted that events similar to those which have now occurred, would, in fact, occur.  Those recent events, insofar as the child is concerned, would appear to have their genesis on Wednesday 12 April this year when the mother received a text from the child saying “Dad has told me it’s time to go home now”.  As a result of that text, it was necessary for the mother to arrange a friend to collect the child, and at that time, the child had been delivered by his father as she deposes, “With shopping bags full of stuff.”  The bags contained “All of the Father’s Day and birthday cards and presents that [the child] had given to his father, along with a World War II gun sight for a cannon and a woman’s dress ring.” The father had apparently also asked the child to pick out any DVDs that he would like to take with him. 

2. As is commendably, as it seems to me, accepted on behalf of the mother the father appears to have had some insight into the fact that his mental condition was significantly deteriorating. But, that does not diminish the concern emanating from the events described in the affidavit and indeed, the contents of the annexure to it. 

3. As I have earlier said, events at and subsequent to that time have unfortunately resulted in the father coming into collision with the criminal law.  I am advised that the father has not spent any time with the child since April 2012 and I repeat that he does not appear here this morning. 

4. The mother deposes to the fact that the father has “Tried to contact ([the child]) by telephone”. But the mother goes to depose that, in light of the contents of the annexure to her affidavit to which I have just referred, she is not prepared to allow the child to speak with his father on the telephone “Until I am confident that the father’s mental state is stable.” In that same affidavit, the mother, “Seeks orders that [the child’s] time with the father be appropriately supervised until such time as his mental state stabilises.”

5. During the course of discussion with the solicitor for the mother and the Independent Children’s Lawyer, I canvassed a number of possibilities that seemed to me to present themselves as orders which might be made in the current circumstances in the child’s best interests.  An extract of that discussion from the transcript follows:

   HIS HONOUR:   Yes.  Sure.  See this – I mean, let me just share my thinking out loud, really.  I mean, this is inevitable – this is the inevitable path that, when the illness is florid, it will manifest itself in all sorts of worrying and unattractive ways, of which this latest example is but an example.  And, almost inevitably, people with these sorts of mental illness who do not, as it seems clear, have any insight into the fact they are mentally ill and are therefore not willing to be treated in an appropriate way or, if they are – if they do happen to coincide with treatment, are often non-compliant – will almost inevitably, in some way or another, come into contact with the criminal law and other legal issues, I suppose.

   The problem is this:  if I was to say that, for example, these orders for time be suspended, and put in place orders for supervised time, then those orders would apply with all of the difficulties that suggests.  If [the father] is to, for example, turn up at a contact centre and is floridly unwell, almost inevitably that will result in the contact centre refusing time.  That will almost inevitably result in some other form of drama, to use a neutral word, which may well involve further interaction with the criminal law, etcetera, etcetera.  The plus side of ordering something similar to that is that – the plus side of ordering something similar to that is that [the child] gets to see his father, and he’s getting to a stage where he’s old enough to have, as the note – or as the affidavit suggests, at least some inside into the fact that dad does some strange things.

   So that’s one aspect.  Another aspect – another possibility is for me to say – suspend the time in accordance with the orders and allow the mother to dictate time.  In other words, she should say how, when and in what circumstances time occurs.  That, it seems to me, has the advantage of someone whose parental responsibility is not in doubt, someone who I have found in the past is genuinely committed to the promotion of time, etcetera.  And, again, the plus – an advantage of that is that it facilitates – potentially facilitates time between [the child] and his father.  The down side of that is that, again, if [the father] is unwell – floridly unwell – then it puts significant pressure on your client to deal with him on a day-to-day basis without there being any specific orders, firstly.

   And, secondly, again raises the prospect of interaction with the criminal law and – etcetera.  And I haven’t, in the midst of all that, forgotten that any such interchanges would not exactly be beneficial to [the child].  A third possibility is, for example, to suspend time and require as a condition of any application to reinstate time in any form, to have both parties and [the child] first attend upon a family consultant.  That’s one possibility that seems to me to emerge.  The upside of that is protection of your client from the issues that I just discussed.  Secondly, input from a professional as to how he might be travelling, albeit that, you know, it’s not a psychiatrist, but certainly someone – for example, if I was to choose [Mr P], it’s certainly a family consultant who has had extensive experience in mental health in the past.

   The disadvantage, I suppose, is that it doesn’t provide for time, and your client acknowledges that if [the father] is well that he should spend time.  But I don’t see that necessarily as being a significant disadvantage because, like all orders, they can be varied by consent.  So, again, I’m thinking aloud, but it seems to me that the third of those possibilities – I hear what you – I see what your client says in her affidavit, but it seems to me that the third of those possibilities commends itself.

   MS FEENEY:   I’ve taken some instructions on that, and I think, your Honour, after talking with my friend this morning, that really is the only option for my client.  Certainly at this stage, she’s very reluctant to be engaged in any contact that isn’t – with [the father] that isn’t maybe in the precincts of a court or – especially with the police being involved at the moment.

   HIS HONOUR:   Yes.  All right.  What do you say about that, Ms Terrance?

   MS TERRANCE:   Your Honour, I think that that probably – I agree with my friend.  I think that’s really the only option.  I think it’s quite clear that [the father] just simply isn’t going to engage with a treating psychiatrist.  That’s the reality we’re dealing with, and I think if time is suspended and he wishes to reengage, there has to be some independent person looking at the situation, I think.  That’s the reality that we’re all facing in this matter.

   HIS HONOUR:   I feel sorry for [the father], can I say.  I’m sure that – I don’t by any means mean any disrespect to your client when I say that, Ms Feeney.  I understand entirely that she has had a very, very, very difficult road to hoe, but - the solution seems so simple but so elusive.  Anyway, thank you.

6. On balance it seems to me that I should make orders that best protect the child from any harm, including the possibility of psychological or emotional harm, and at the same time best protect the mother from being exposed to behaviour that would be both stressful and difficult to deal with and also significantly detrimental to the child. At the same time those same orders should provide for the hope that the father might, when he is either sufficiently well without treatment, or alternatively, well as a result of treatment, be able to spend time and/or communicate with the child.  I repeat that I consider the mother is genuinely committed to providing an appropriate relationship for the child, consistent with protecting him from harm in the broad sense to which I have just referred. 

7. Combining all of those considerations leads me to conclude that the only decision that can properly be made in the child’s best interest at the moment is to suspend time. 

8. It will be clear from the discussion earlier referred to that I have considered supervision of time, but have rejected it for reasons also apparent from the discussion to which I have just referred. 

9. As indicated in the “third” of the options forming part of the discussion with the solicitors at the bar table, it seems to me that the orders there described are those which strike an appropriate balance between protecting the child, protecting his mother in the sense I have just described, but at the same time, offering the hope that if the father is sufficiently well, that a relationship, which the child clearly wants and deserves if his father is well, will resume. 

10. I will accordingly make the orders that I earlier outlined, suspending the orders for time and communication, but ordering that any application by any party for the resumption of time shall first be referred to Mr P, family consultant, for the purposes of Mr P seeing each of the parties and the child, and thereafter preparing a report which might discuss and provide opinions in respect of the nature and amount of time that might be between the child and his father consistent with the child’s best interests.

11. I will also make it plain that I require Mr P in those circumstances to prepare a report by use by the Court and thereafter, given my lengthy involvement in the matter, the matter if at all possible be referred to me for further hearing. 

12. Discussion between the solicitors at the bar table also centred upon the other orders that might be made consequentially.  After over two years of proceedings in this Court, it seems to me, sadly, perhaps, that I should bring to an end the impost on the public purse in the form of the Independent Children’s Lawyer’s further involvement in the matter. 

13. Reference to the orders on 16 March 2011 and each and all of the earlier orders that I have made will indicate the patient and thoughtful job undertaken by the Independent Children’s Lawyer in this case, which, in at least some instances, has gone, as it were, “above and beyond the call”. 

14. Reference to the orders made 16 March 2011 will also see the somewhat onerous tasks required of the Independent Children’s Lawyer. I have no doubt that the Independent Children’s Lawyer has in each and all respects attempted to carry out each and all of those tasks in the child’s best interests and so as to assist the Court. 

15. However, the time has come, in my view, for that to come to an end, and I will order that the Independent Children’s Lawyer be discharged. 

16. Reference to a number of the earlier orders will see requirements being placed upon the father, and for those requirements to in effect, condition time (see e.g. paragraph 10 of the earlier orders).  In addition, it will be seen that the order requires the father to undertake certain steps, all of which were designed to facilitate him receiving and accepting appropriate treatment for his significant psychiatric condition.  Other orders foresaw an interrelationship between information that might be provided to Dr K through that treatment and input from Dr K so that the Court could be fully informed, and at the same time, fashion orders that best met the particular difficulties suffered by this significantly mentally ill father. 

17. There is no evidence before the Court that the father has complied with those requirements.  One possibility is to require him to do so before making any application to the Court. 

18. I think it highly unlikely that he will have the capacity or the ability to organise that.  In my view, it is not in the nature of this mother to deny the father and the child time together in circumstances where she can be confident that the father is well and that time between he and the child will be beneficial to the child.  Accordingly, I do not propose to make those tasks pre-conditions for any application by the father to reinstate time or communication. 

19. I will, however, include them as notations within the order, such that Mr P, and/or at any future hearing the Court, can be fully appraised of the issues that were live at the time that these orders were made and which might be live in terms of the best interests of the child in reinstating any time or communication.

20. I have already made reference to the comprehensive work undertaken by the Independent Children’s Lawyer in these difficult and unusual circumstances.  This has been a case where rather than making orders of a “standard type” an attempt has been made to facilitate time in circumstances where, in my assessment, each of the child’s parents are decent, loving people who are genuinely concerned about his care, but where unfortunately, significant mental illness gets in the way of what I consider would likely be a co-operative relationship if it didn’t exist.

21. In those circumstances, a number of tasks have fallen to the Independent Children’s Lawyer.  For my part, I would prefer the Independent Children’s Lawyer to remain in the matter and for her to be able to monitor the situation and to carry out further tasks designed to achieve the same end which the earlier orders were designed to accommodate. 

22. However, as I have said, it seems to me that when due regard is paid to the nature and extent of the Independent Children’s Lawyer’s involvement of this matter and the consequent impost upon the public purse, I consider it preferable to discharge the Independent Children’s Lawyer.

23. However, many of the tasks required of the father in the earlier orders involved communication by him with the Independent Children’s Lawyer and for the Independent Children’s Lawyer to take steps accordingly.  That will now alter such that any such requirements or actions by the father will require him to provide information to the solicitors for the mother consequential changes will also be made to the orders.  That this is necessary in the child’s best interests seems to me, in light of the history of this matter, to be self evident. 

24. The mothers’ solicitor is also legally aided.  Of course, nothing I say can bind the legal aid authorities in terms of the provision to legal aid to the mother.  However, can I say in the strongest possible terms that I consider it directly beneficial to the child that grants of legal aid be afforded to the mother in these complex proceedings so as to permit of the process which the orders that I have made today and the orders I made earlier on 16 March 2011 can be carried into effect, but more particularly, so that they can be given their true underlying effect to the intent that the child’s best interests are protected as well as orders can do so. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 May 2012.

Associate: 

Date:  31 May 2012