Connor & Hulett

[2011] FamCA 196

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT [2011] FamCA 196

FAMILY LAW – CHILDREN – BEST INTERESTS – where father suffers from mental illness – with whom a child lives – with whom a child spends time – best interests of the child

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Mental Health Act 2000 (Qld)

Donaghey & Donaghey [2011] FamCA 13
Goode v Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
MRR v GR [2010] HCA 4
Neil v Nott (1984) 68 ALJR 509

APPLICANT: Mr Connor

RESPONDENT: Ms Hulett

INDEPENDENT CHILDREN'S LAWYER: Ms Falcomer

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 16 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 22 and 23 July 2009, 14 and 15 March 2011

REPRESENTATION

THE APPLICANT: Appearing on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: Smith & Associates of Brisbane

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid

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

Orders

IT IS ORDERED:

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

1. THAT the mother have sole parental responsibility for the child.

IT IS FURTHER ORDERED:

1. THAT the Independent Children’s Lawyer shall, as soon as reasonably practicable after the date of these Orders, provide to the father in writing details of the means by which he can access, at no, or the least possible, cost:

   a.Continuing treatment by a Psychiatrist, including, but not limited to, referral by a general practitioner to a Psychiatrist who bulk bills Medicare; and

   b.Programmes designed to assist persons with a mental illness in the community, including, but not limited to, those programmes referred to by Dr K in his evidence in these proceedings.

2. THAT the Independent Children’s Lawyer shall provide a copy of the details so provided to the solicitors for the mother.

1. THAT 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.

2. THAT the father shall provide to the Independent Children’s Lawyer 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 these Orders; 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.

1. THAT the father shall provide to the Independent Children’s Lawyer 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.

1. THAT pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer 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.

2. THAT the Independent Children’s Lawyer shall provide to the mother notice in writing of:

   a.Any non-compliance with paragraphs 5, 6 and 7 of these Orders that is not explained to the Independent Children’s Lawyer’s satisfaction; and

   b.Any notification by any of the health professionals contemplated by paragraph 5 of these Orders of any significant concerns held by any or all of them as to any deterioration in the husband’s mental health and/or concerns arising from any non-compliance with any recommended treatment or medication.

IT IS ORDERED UNTIL FURTHER ORDER:

1. THAT provided the father has complied with paragraph 5(a) of these Orders, and thereafter complies with paragraphs 5, 6 and 7 of these Orders, the child shall spend time with the father as follows:

   a.Commencing 20 March 2011, on each alternate Sunday between 12 noon and 5.00pm at Park 1 in Brisbane with changeover to occur at Changeover Venue 1;

   b.Commencing 12 June 2011, on each alternate Sunday between 9.00am and 5.00pm with changeover to occur at Changeover Venue 2;

   c.Commencing 11 November 2011, on each alternate weekend from 5.00pm Friday to 5.00pm Sunday, with changeover to occur at Changeover Venue 2;

   d.On 14 December 2011 and 21 December 2011 between 9.00am and 5.00pm with changeover to occur at Changeover Venue 2;

   e.That alternate weekend time be suspended on the weekend commencing 23 December 2011 and in lieu thereof, time to occur from 2.00pm Christmas Day until 5.00pm on 27 December 2011 with changeover to occur at Changeover Venue 2;

   f.That alternate weekend time in accordance with subparagraph (c) resume on 6 January 2012; and 

   g.On 11 January, 18 January and 25 January 2012 between 9.00am and 5.00pm with changeover to occur at Changeover Venue 2.

2. THAT the child communicate with the father by telephone:

   a.On Tuesday and Thursday between 6.30pm and 7.00pm in the week in which he is spending time with the child on Sunday; and

   b.Between those hours on Tuesday, Thursday and Sunday in the week in which he is not spending time with the child on Sunday; and

   c.Between those hours on each of the father’s and child’s birthdays

   with the father to initiate the call to the child’s mobile telephone and the duration of the call to be determined by the child.

3. THAT the child shall be at liberty to communicate with the parent with whom he is not spending time at any time and when the child expresses a wish to contact that parent, the other parent shall use his or her best endeavours to facilitate such call.

4. THAT 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 authorise 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.

5. THAT neither parent shall criticise, 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.

1. THAT 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.

1. THAT 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.

1. THAT 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 Independent Children’s Lawyer shall obtain an updated report from Dr K; and

   b.The Independent Children’s Lawyer 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 Independent Children’s Lawyer shall provide same to each of the parents or their legal representative.

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

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

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

   c.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

   d.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.

2. THAT the Independent Children’s Lawyer has liberty to relist this matter on the giving of seven days notice in writing to the parties.

3. THAT this matter be adjourned for review on a date after 16 March 2012.

IT IS FURTHER ORDERED

1. THAT 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

And

Ms Hulett

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. B (“the child”) was born in July 2001.  He is currently now approaching 10 years of age.  In May of 2005, when the child was not yet four and his parents had been separated about 12 months, the parties agreed to the making of final orders with respect to his parenting.  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 of specified time each alternate weekend together with Wednesday during the week as well as holiday time and special days.

2. 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 manifestations of the father’s psychiatric illness. 

3. These proceedings have a long history which, unfortunately, I consider necessary to address below. 

4. At the outset of the final part of these proceedings which commenced on 14 March 2011 I sought from the father (who at all times has represented himself) and from counsel for each of the mother and the independent children’s lawyer, submissions as to the issues live in these proceedings which have at their core the child’s best interests.  In the course of that discussion I expressed the view (agreed to by both counsel) that the central issue in this case is any risk presented to the child by the father as a result of the father’s mental illness. 

5. As will shortly be apparent, that assertion is not made in ignorance of the mandatory statutory process required by the Act as interpreted by the Full Court, and more recently the High Court; rather the identification of that central issue and its resulting questions is possible because clear findings about both Primary and Additional Considerations can readily be made.  Indeed, many, if not all, are conceded. 

6. The core issue just referred to is neatly encapsulated in a report (pursuant to earlier section 65L orders made by me) from the family consultant, Mr P: 

   29.  The combination of many factors makes this an extremely complex matter.  The Court is being asked to intervene and give direction by way of parenting orders to a situation where there are no simple solutions and few if, indeed, any certainties.  In my view the matter is particularly complex because the two crucial issues that sit at the core of the matter are at a direct intersection with each other.  The two issues or considerations are ones that the Family Court is very familiar with.  The first issue ensuring that harm is not likely to occur to a child if their relationship with a parent is interfered with or inhibited from being a meaningful one is in direct competition with the second issue which is ensuring that the same child is not in any way likely to be harmed should they, indeed, be permitted to spend time with that parent.  Complicating the situation further is the multitude of interacting and interwoven factors associated with these presenting issues.

7. Not only is it possible to make clear findings about many, if not all, of the statutory Considerations other than the central matter just referred to, it is also possible, for reasons which shall also shortly emerge, to make clear findings in respect of section 65DAA which contains conditions, “upon which [the Court’s] power is conditioned much as it is where a jurisdictional fact must be proved to exist”, (MRR v GR [2010] HCA 4 at [13]). It is first necessary to consider the parameters within which these parenting proceedings were conducted by reference to the proposals of the parties as ultimately expressed.

8. At the conclusion of the hearing counsel for the independent children’s lawyer helpfully provided a minute of proposed orders.  Counsel for the mother joined in seeking orders with a similar foundation, subject to argument in respect of some of the details of those orders.  The proposed orders by the ICL are:

   1.That the child [B] (“the child”) born […] July 2001 reside with the mother.

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

   3.That the father shall, within 30 days:

   a.Consult with a Psychiatrist (“the treating Psychiatrist”) and a Case Manager or Psychologist for the purpose of establishing ongoing therapeutic relationships;

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

   c.Consult with the treating Psychiatrist and/or Case Manager or Psychologist on no less than a monthly basis;

   d.Provide to the Independent Children’s Lawyer on a monthly basis:

   i.The name and address of the treating Psychiatrist;

   ii.The name and address of the Case Manager or Psychologist;

   iii.The date of the consultation/s;

   iv.The particulars of any prescribed medication.

   4.That the Independent Children’s Lawyer shall provide to the treating Psychiatrist, Case Manager and/or Psychologist (as advised by the father) within 14 days of being advised by the father of the identity of such professionals, copies of the following:

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

   b.The transcript of the evidence of the 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”);

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

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

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

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

   5.That PROVIDED THAT the father had complied with Order 3, the child spend time with the father as follows:

   a.Commencing 20 March 2011, on each alternate Sunday between 12 noon and 3:00pm at [Park 1 in Brisbane] with changeover to occur at [Changeover Venue 1];

   b.Commencing 12 June 2011, on each alternate Sunday between 12 noon and 3:00pm with changeover to occur at the front entrance of [Police Station 1];

   c.Commencing 21 August 2011, on each alternate Sunday between 9:00am and  3:00pm with changeover to occur at the front entrance of [Police Station 1];

   d.Commencing 11 November 2011, on each alternate weekend from 5:00pm Friday to 5:00pm Sunday, with changeover to occur at the front entrance of [Police Station 1];

   e.On 14 December 2011 and 21 December 2011 between 9:00am and 3:00pm with changeover to occur at the front entrance of [Police Station 1];

   f.That alternate weekend time be suspended on the weekend commencing 23 December 2011 in lieu thereof, from 2:00pm Christmas Day until 5:00pm on 27 December 2011 with changeover to occur at the front entrance of [Police Station 1];

   g.That alternate weekend time in accordance with subparagraph (d) resume on 6 January 2012;

   h.On 11 January 2012, 18 January and 25 January 2012 between 9:00am and 3:00pm with changeover to occur at  [Police Station 1].

   6.That the child communicate with the father by telephone on up to two occasions per week with the father to initiate the call to the child’s mobile telephone and the duration of the call be determined by the child.

   7.That the child shall be at liberty to communicate with the father by telephone at any time and when the child expresses a wish to contact the father, the mother shall use her best endeavours to facilitate such call and encourage all requests from the child to contact the father.

   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 seven days of any change occurring.

   9.Neither parent shall criticise, 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.

   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.

   11.That 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].

   12.That after 31 January 2012, the Independent Children’s Lawyer obtain an updated report from [Dr K], as reporting Psychiatrist.

   13.That after 31 January 2012, the Independent Children’s Lawyer obtain a report from the treating Psychiatrist of the father’s treatment, compliance with medication and attendance for treatment and the father shall authorise the treating Psychiatrist to provide such report and upon receipt of such report the Independent Children’s Lawyer release the report to each of the parents or their legal representative.

   14.That the Independent Children’s Lawyer have liberty to relist the matter on the giving of seven days notice to the parties.

   15.That this matter be adjourned for review on a date after 16 March 2012.

1. The differences between those orders and those sought by the mother are as follows. 

2. In respect to the reference to a treating psychiatrist and the monitoring of compliance with treatment, the mother seeks an order that, “the ICL keep the mother’s solicitor updated as to the husband’s compliance with any treatment or medication”, and, “the wellbeing of the father”, and orders requiring the father to authorise and consent to the ICL gathering information about those specific matters from the psychiatrist. 

3. Further, it is said that:

   ·    Time should occur on Saturday and not Sunday. 

   ·    Changeovers should be at Changover Venue 2 in lieu of Police Station 1.

   ·    There should be a delayed start to the time regime proposed by the independent children’s lawyer so as to permit of paragraph 3 of the minutes of order being complied with. 

   ·    After mid-May (that is the first three visits) it is submitted that time be extended to five hours (the ICL concedes that there is no evidence that would point to that timeframe providing any greater risk than the three hours proposed initially by counsel on her behalf). 

   ·    Three specific days and times are set out for weekly telephone time. 

   ·    The child shall be at liberty to call the mother while spending time with the father and, “if the child voices concerns about the father’s behaviour the mother be at liberty to collect the child immediately” and, finally, “…if the father or mother is late to collect the child then they contact the other party at least 30 minutes prior to changeover”.

Applicable Principles

1. As I made clear during the course of the hearing when defining the central issue in this case, I am, of course, cognisant of the statutory framework within which parenting proceedings must be conducted. 

2. I am, of course, acutely aware of the statutory basis for the ascertainment of a child’s best interests and the Considerations relevant to same enumerated in section 60CC and that that task is to be conducted within the overarching requirements of the Objects and Principles of the legislation. 

3. I am, too, aware of what the High Court said recently in MRR & GR, above, in respect of the central role that section 65DAA provides in that context (in circumstances where that section applies).

4. So that there should not be any doubt about the principles which I am applying here, I make it clear that I am here applying my understanding of those principles as outlined by me in, for example, Hardie & Capris [2010] FamCA 1046, where I also referred to the authorities binding upon me in that respect.

5. This case involves as its central issue the assessment of potential risk of harm to the child emanating from florid manifestations of the father’s mental illness and its nature as a chronic relapsing condition.  I consider that the, “unacceptable risk test”, is as applicable to cases of this type as it is to cases where sexual abuse is in issue, in which context the so-called, “test”, had its genesis in the decisions of the High Court and the Full Court.

6. In the application of that, “test”, I make it clear that I am applying my understanding of the principles emanating from earlier authorities which bind me, which I attempted to set out in Donaghey & Donaghey [2011] FamCA 13 together with the observations on, “unacceptable risk”, there set out.

The Unfortunate History of This Case

1. I earlier referred to the fact that, unfortunately, I consider it important to set out the unusual background of this matter in some detail.  It involves the father’s time with the child being restricted when compared to the consent arrangements arrived at between the parties in 2005.  There has been a considerable delay in the final determination of this matter which has occurred through no fault of the parties or their representatives or, it should be added, the Court.  It is my desire to not contribute to any further delay and it is that, and the need to bring these proceedings to an end for the child, that prompts me to deliver these reasons ex tempore.

2. There have been six earlier judgments delivered in this matter by me, the first of which was given two and a half years ago in September 2008. That judgment, given on what is referred to in the Family Law Rules 2004 as the “first day of trial”, came after prior litigation in the Federal Magistrates Court. I propose to briefly set out the chronology of those proceedings in that Court and, given that the proceedings and subsequent judgments occur subsequent to a first day of trial, to set out elements of the history of this matter in this Court by reference to relevant parts of those earlier proceedings.

Short Chronology

1. The parties commenced residing together in February 2000 and married in September 2000. The child was born less than 10 months later. The husband was first admitted to Hospital 2 after the marriage in December 2002 for a period of about 17 days. Subsequent to that, in January 2004 a Protection Order was made in the Magistrates Court against the father at the suit of the mother.

2. On 7 May 2004 the father was charged by the Queensland Police with a breach of the Domestic Violence Order and the parties separated soon after. In April 2007, after further admissions to Hospital 2 and other proceedings involving Protection Orders and complaints to the Department – all, essentially, emanating from manifestations of the father’s illness – the father filed an application in the Federal Magistrates Court.

3. On 28 May 2007, Federal Magistrate Baumann made an order regulating time between the father and the child. An emanate response was filed by the mother in July 2007 and further orders were made by Federal Magistrate Baumann in July 2007 appointing an Independent Children’s Lawyer and adjourning the matter to 29 October 2007. A Family Report was prepared by Mr E and subsequently filed by the Independent Children’s Lawyer in October 2007. On 16 October 2007, Federal Magistrate Howard made orders adjourning the matter to 29 October 2007.

4. On that later date Federal Magistrate Howard made orders for non-denigration by the parties of each other and orders for the attendance of the parties for preparation of psychiatric assessment, trial dates were allocated and the matter was adjourned to 18 February 2008.

5. On 18 February 2008, Federal Magistrate Jarrett made an order that those applications (together with an additional application for contravention filed by the father) be adjourned for final hearing to commence on 15 May 2008. Subsequently, a report was filed by reporting psychiatrist Dr K upon instruction from the Independent Children’s Lawyer. On 23 April 2008, Federal Magistrate Howard ordered that the trial dates be vacated and the proceedings be transferred to this Court. On 19 June 2008, Registrar Bint made an order for directions and for a compliance check to take place on 14 August 2008.

6. On 12 September 2008 the matter first came before me for a “first day of trial”. Shortly after that the father was admitted to Hospital 2’s Mental Health Unit as a result of an incident which had occurred at Police Station 1 at Christmas time in 2008. An Involuntary Treatment Order was subsequently made against the father. Shortly thereafter Applications in a Case were filed by the mother and a Family Report was prepared by Family Consultant, Mr F. I made interim orders on 27 January 2009, the effect of which was that face-to-face time between the father and the child take place as part of an s 65L process to be conducted by Mr F. The father failed to attend appointments arranged for him with Dr K in February and March 2009. On 19 March 2009 I made a further interim order the effect of which was, relevantly, that the father spend supervised time with the child. Trial directions were issued on 3 April 2009 and the matter set for final trial on 22 and 23 July 2009. Reference will be made to what occurred at that time later in these Reasons but it is important to note within this chronology that I there held concerns for the father’s mental health and his capacity to conduct the proceedings on his own behalf (which he had been doing up until that point in time). At that time it was known that a review of the Involuntary Treatment Order to which the father was still subject, would be conducted in about October 2009.

7. In circumstances which will be later expanded upon, the trial was adjourned part-heard on 3 July 2009. On 5 February 2010, further interim orders were made by me appointing a Case Guardian for the father. An unfortunate history follows thereafter to which, again, reference will later be made. The father’s Involuntary Treatment Order was revoked on 9 February 2010. On 1 November 2010, consequent upon further directions emanating from the fact that, despite the best endeavours of the Independent Children’s Lawyer (and others), no Case Guardian had been appointed as contemplated by my earlier orders. On 1 November 2010, I made an order discharging the appointment of the Case Guardian and made directions for the final hearing to proceed over three days, commencing 14 March 2011. Again, reference to those reasons will be made below.  These proceedings commenced on that later date.

The First Set of Reasons

1. The issues ultimately to be addressed in the current proceedings can be seen exemplified in interim proceedings on, firstly, 19 March 2009.  I said in reasons delivered that day:

   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 suggests 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] [a family consultant] 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.”

   …

   19.In that respect it seems to me entirely appropriate that in interim proceedings where, as always, the best interests of the 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.

2. Hospital records were before the Court at that interim hearing.  So too were reports from Mr F, the family consultant just referred to, and a consultant reporting psychiatrist, Dr K, who reported on instructions from the independent children’s lawyer.  The 19 March reasons record:

   40.The consistency between [Hospital 2] notes and what was recorded (independent of them) by [Mr F] and [Dr K] can be seen by reference to their respective reports.  At paragraph 29 of his report [Mr F] records, “He told me 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.” 

3. Significant in terms of the issues and facts which the father seeks to agitate in these proceedings is that, even at that interim stage, the following matters were recorded in the judgment:

   41.Significant scepticism, albeit on an interim basis, should attend that later claim in light of the notes from [Hospital 2].  [Mr F] said at paragraph 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.”

   42.At paragraph 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.”

   43.[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.”

   44.[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 me 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.”

   45.[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.”

4. I will refer below to specific documents from Hospital 2 and proceedings relating to the Involuntary Treatment Order, to which the father was at one point subject, which became exhibits in these proceedings. Orders made at that time (March 2009) provided for undertakings by the husband which provided broadly that he see a consistent general practitioner who has access to his mental health history, that he would authorise any treating doctor who has provided treatment in respect of his mental health to provide information to that general practitioner; and that he would continue to see the psychiatrist recommended for him by the Queensland government psychiatrist (at that time Dr C) and any officers of the Mental Health Unit attached to Hospital 2 whom he might be required or requested to see; and, finally, that he would provide an authority to the independent children’s lawyer to receive information from all such medical practitioners with whom he had been involved in respect of his mental health.

5. The relevant parts of interim orders made that day are, for present purposes, at paragraphs 5 and 6:

   It is ordered until further order that:

   …

   5.The child, [B], born […] July 2001 (“the child”) live with the mother.

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

   (a) at and supervised by Contact Centre 1 on the weekend or such a 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 four hours then, in addition, on one occasion during the week after school for such time as the contact centre is able to provide.

6. It will be observed that, despite the concerns expressed in those proceedings emanating from the Hospital 2 notes and the opinions expressed by Dr K, that I nevertheless considered that provided the child’s safety (in the broader sense of the word) could be assured, there ought be an attempt to maximise the amount of time that the child spent with his father. 

7. The reasons for that were evident in the report of Mr F and will become more evident as these reasons proceed.  In short there is no debate in these proceedings that the father adores his son and that his son adores him and that if the child’s safety can be assured by reference to issues emanating from the father’s mental illness there is no doubt that he will enjoy a fulsome, meaningful relationship with his father. On that occasion an order was also made pursuant to section 65L of the Act and a report requested at the conclusion.  Paragraph 11 of the orders made that day also has direct relevance to the issues in these proceedings.  It provides:-

   The mother do all things necessary to arrange for [the child] to participate in the [Children’s Holiday Program] at [Hospital 1] 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 [Children’s Holiday Program] at [Hospital 1] or such as they might recommend.

8. That order reflects evidence before the Court at that time about a specific program run through that hospital that provides assistance to children who have one or both parents with a mental illness.  As will be seen shortly, Mr P, who is the family consultant who prepared the report consequent upon the section 65L process just referred to, is adamant that the child should participate in a similar program and reference will be made to that later in these reasons. 

9. Orders were also made at that time for the trial of this matter to conclude on 22/23 July 2009.  On that occasion unusual events were to occur.  Again, it is most expeditious in my view to quote from the reasons given on that occasion. 

10. It needs to be observed that, at that time, the father was subject to an Intensive Treatment Order made pursuant to this state’s Mental Health Act 2000 (Qld) as a result of which people are commonly referred to as being, “regulated”. As that expression implies, an Intensive Treatment Order subjects a person to various requirements connected with their mental health issues and the treatment of those issues.

11. In the reasons which I gave on 23 July 2009 I commented:

    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 the 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 [the father’s] position in that respect may have been motivated by a belief in 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 mainly every second weekend and overnight each Wednesday.

12. Dr K had provided an updated report prior to the commencement of that hearing.  I said in respect of that report and the father’s reaction to it:

    12.In the latter of 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 [Hospital 2] 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 of [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.

1. Dr C is the psychiatrist who was treating the father at Hospital 2 pursuant to the Intensive Treatment Order.  Her place was, as it were, subsequently taken by Dr O when Dr C went on maternity leave.  Dr O gave evidence in these later proceedings before me.  I said in July of Dr C’s evidence:-

   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 questions was, at least in part, that as part of exhibit ICL1 the reporting psychiatrist was 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 [in a legal sense].  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.

   31.Before the end of [Dr C’s] evidence the father determined to leave the court room.  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.

   32.Whatever his intention when he left the court room the fact is he did not return for the balance of the hearing that day.

2. I continued in those reasons:

   35.Counsel for the independent children’s lawyer indicated that [Dr C] was prepared to provide an opinion as to her patient’s capacity but [counsel] was unable to open what that evidence would be.

   36.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.

   37.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

   38.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.

   39.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.

   40.In that respect during this 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 behalf of [Dr K]:

   “Whatever label you put on it you have serious mental illness…You have a psychotic illness.”

   The doctor when 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.”

   41.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.

3. Exhibit ICL1 in those proceedings, a document authored by Dr C, records this:

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

4. It is important for me to record that findings made by me in those proceedings, which concluded part heard on 23 July 2009, are no less true in the current proceedings:

   82.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.

   83.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.

   84.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.

   85.She is genuinely concerned about [the child’s] 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 or might become particularly acute.

   86.I hope that hearing the evidence of [Dr C] has allayed to some extent some of those concerns.

5. It should also be noted that Mr F said in an updated report prepared for those July 2009 proceedings:-

   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.

6. And this with which I respectfully agree:

   The existence of mental illness should not in itself act as an inhibitor to a relationship between a child and a parent.  The Court should only act protectively if it is the case that a 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.

7. The events at this trial, including the father’s presentation and his absence from the court room on the first day of that earlier hearing, led to orders pursuant to section 65L of the Act and a continuation of supervised time.  The proceedings were adjourned for a period of six months so as to await the outcome of the progress of the Intensive Treatment Order, the section 65L process and report just referred to.  In short it was hoped that there would be improvements in the father’s day to day mental health and its behavioural manifestations.  In proceedings on 5 February 2010 the father informed me that he was consulting his own psychiatrist, Dr W, and expected to receive a report from him. 

8. In the meantime the concerns relating the father’s presentation earlier referred to had resulted in specific questions being posed to Dr K in correspondence from the independent children’s lawyer.  Dr K responded:

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

9. My reasons given on that date continue:

   27.The second question that [Dr K] was asked specifically was for him to provide an opinion on, “the mental state and mental health status of the father and specifically his capacity to parent, his relationship with the child or the welfare and best interests of the child generally”.

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

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

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

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

10. It should be noted that while in the context of risk and its, “acceptability”, attention had focused on the illness and its impact, Dr K was also at pains to point out:

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

11. Ultimately I considered it appropriate at that time to appoint a case guardian.  Again, I consider it important to briefly refer to what I said in that specific respect in those reasons delivered on February 2010:

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

    37.No evidence is placed before the Court by the independent children’s lawyer of any person or persons who may be willing and able to act as such.

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

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

12. I am profoundly disappointed and saddened that the process contemplated – a process designed to assist a person with a disability, namely a mental illness – has, indeed, delayed these proceedings.  In reasons delivered on 1 November 2010 I said:

    19.I sought to make the point then, both orally to [the father] when he appeared before me and in the ex tempore reasons which issued subsequently, that the issue before the Court was both [the father’s] capacity to properly represent himself and thus maximise his best chances as it were in the parenting proceedings and obtain orders which might be seen to reflect the caring and loving relationship that undoubtedly exists between the father and [the child].

    20.This is a point which I have again sought to emphasis to [the father] on more than one occasion during the proceedings before me today.

    21.Since the making of that order there has transpired what can only be described as extraordinarily unfortunate circumstances that have seen in the space of about nine months no progress whatsoever having been made toward the appointment of a case guardian to [the father].

    22.The Court’s processes, including the legislation and rules which govern it, contemplate a process whereby the Attorney-General appoints a case guardian so as to obviate the very sorts of difficulties that have occurred in this case.  The difficulties encountered by the independent children’s lawyer…in having a case guardian appointed in this case in accordance with the Court’s rules are deposed to in an affidavit by [the independent children’s lawyer] filed in these proceedings.

    23.Those difficulties culminated in correspondence passing between [the independent children’s lawyer] and the Attorney-General’s Department and more recently in a letter dated 21 September 2010 addressed the Assistant Secretary of the Family Law Branch of the Attorney-General’s Department by this Court’s principal registrar, Ms Filipello.  That letter sets out the difficulties attached to the appointment for case guardian in this case and annexed for ease of reference a transcript of the proceedings before me…that sought to appoint a case guardian for [the father].

    24.    The principal registrar said in that letter:

    From the Court’s perspective this matter cannot progress any further until such time as a case guardian is in place.  In effect it means that [the father] will not be able to spend [unsupervised] time with his child.  I note that the order was made by Murphy J in February 2010 and I would ask that now the Attorney-General has taken up his portfolio the request made for the appointment of case guardian be expedited.

    25.On 7 October 2010 a letter was received from the Assistant Secretary of the Family Law Branch of the Attorney-General’s Department which I have marked as exhibit A in these proceedings.

    26.    I will quote the letter in full.  It says:

    Dear Ms Filipello, Thank you for your letter of 21 September 2010 regarding the Court’s request for the Attorney-General to nominate a case guardian in the matter of [Connor] and for your offer of assistance in the development of the processes.  The Department is not in a position to provide a nominee case guardian for the Attorney-General at this time as new arrangements for the nomination process for case guardians in the Family Court of Australia are currently being put in place.  I understand the Attorney-General will provide the Court with further information as soon as possible and we look forward to working with you on this important area of family law policy.

    27.Whatever new arrangements may or may not be put in place by the Attorney-General’s Department as indicated in that letter they are of cold comfort to [the father] (and to the independent children’s lawyer in this matter) each of whom have now had to wait nine months before finally receiving an answer that a case guardian would not be appointed.

    28.The ramifications of this for this matter and ultimately a resolution of it and the making of orders ultimately considered to be in [the child’s] best interests perhaps do not need to be dwelled upon in the course of these reasons.  I simply pause to observe that it is very unfortunate that the case has not been able to progress by reason of that fact.

13. No doubt governments at both state and federal level would be able to advance many reasons which they would presumably suggest as good reasons why no arrangements have been put in place so as to avail people with a serious debilitating illness such as mental illness from having a case guardian appointed for them in parenting cases before this Court.  Whatever might be the merits (or demerits) of any such argument, what is at least clear is that, as at today, there are still no arrangements in place whereby case guardians can be appointed efficiently and effectively so as to allow people with a disability including specifically mental illness, which deprives them of the capacity to conduct proceedings on their own behalf.

14. That this is tragic for those individuals is one thing.  That it has consequent tragic consequences for children is quite another. 

15. I say no more than that it concerns me profoundly that those arrangements are not in place, and all the more so in circumstances where the most recent Australian of the Year, Professor McGorry has spent a considerable proportion of his time in that role attempting to educate the community with respect to mental illness and the tragedy of youth suicide in particular. 

16. That there should have been a confluence of circumstances that have prevented the final determination of these proceedings in the period between July 2009 is to say the least tragic and profoundly disappointing. 

17. That there should have been a delay of 12 months while a case guardian was sought is to say the very least extremely unfortunate, and, it needs to be said, tragic for the child, particularly in light of the orders which will ultimately be made in these proceedings today. 

18. The proceedings of 1 November 2010 related to an application by the father in which he sought an order that my order appointing a case guardian for him be revoked.  That application was supported by Dr W who, as I referred to earlier, is a psychiatrist consulted by the husband.

19. For reasons expanded upon at that time I made that order (although reference to those reasons will indicate that it was done so in circumstances where I nevertheless expressed some considerable concerns and reservations). 

20. I also made orders, directions and requests designed to facilitate the giving of concurrent evidence by the three psychiatrists (Dr K, Dr O and Dr W) and Mr P, the family consultant.  That concurrent evidence was to be received in the current proceedings before me which, as the above history reveals are a resumption of the final trial part heard in July 2009.

    I record the Court’s gratitude previously orally expressed to the three psychiatrists and Mr P who each made themselves available to attend Court personally together to initially confer and subsequently give evidence, between about 3 o’clock in the afternoon and 8 o’clock at night.

21. As will emerge, I found the process, while not without difficulties in the arranging and practical implementation of it, to be extremely helpful, expeditious and illuminating of the central issues and concerns that need to be addressed in these proceedings.  I propose to address the evidence provided to the Court as a result of that process at some length but I, firstly, turn to a consideration of the evidence given by each of the parties. 

The Parties and Their Evidence

1. An assessment of the credibility of the parties or the veracity of their evidence is not, in this particular case, of major concern.  That is not to deny to the father the concern which he expresses about a plethora of matters which, he alleges, are factually inaccurate in one form or another. Rather the central facts directly relevant to the Primary and Additional Considerations and, in particular, the central issue which needs to be determined in the child’s best interests are for the most part uncontroversial. 

2. Further, the determination of the factual issues which trouble Mr K are complicated by matters directly relevant to his mental illness.  Reference to this matter can be seen in documents produced pursuant to subpoenae and, in particular, exhibit ICL5 where Dr O provides a report to the Mental Health Court.

3. Dr O refers to a number of factual issues that the father refers to in earlier recorded notes by the hospital, some of which, at least, appear to be errors.  However, as Dr O says in that report other factual matters (for example the reference to the father taking LSD) may very well have been reports given by the father during periods when he was significantly psychotic. 

4. I am, I should say, acutely aware that the father has at all times represented himself.  I am conscious that the husband’s self-representation has the potential to create for him some disadvantages, not only in respect of the presentation of his case, but also in respect of his presentation generally. I have that potential for disadvantage acutely in mind when assessing his evidence (and submissions), noting, for example, what the High Court said in Neil v Nott (1984) 68 ALJR 509 at 510 that “… a frequent consequence of self-representation, obviously, is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy”.

5. A corollary of the concern about self-representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation.

6. In his Atkin Lecture in 2002 “The Misnomer of Family Law” Mr Justice Wilson (UK) made the following observations (albeit it in the context of a parenting case):

   I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress, and whether he fails with good humour to cope with minor irritants, such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. … Judges have to guard against barbarity which sometimes affects the exercise. But, even if he is mis-using the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside Court, for example, … [than] in that unenviable situation..

7. I agree, with respect, with the sentiments his Honour there expresses.

8. His Honour there refers to the disadvantages of self-representation but also to another aspect, namely, that the self-represented litigant is seen by the Court not shrouded by the expertise of legal representation.  The unrepresented litigant is seen in a variety of circumstances where the Court has the opportunity to observe the attitudes, behaviours and reactions of that self-represented litigant.  Just as his Honour can see advantage in such observations I, too, can see advantages and, in particular, in this case.

9. I have now had the opportunity to observe the father on many occasions.  He has at all times been respectful of the Court process and I consider has done his best to put forward his case and represent himself.  For the most part he has done so well.  However, the personality characteristics and / or manifestations of illness observed by Dr C, Dr K, Mr P and Dr O were evident in his conduct of the proceedings before me, including, for example, his preoccupation with facts, persecutory ideas and the like. 

10. I am also aware that this self-represented father is representing himself as a person with a mental illness and as a person who, on his own account, experiences a form of dyslexia.  I have taken into account all of those significant matters when assessing the father’s evidence and making observations of him.

11. I am also aware that the spotlight of scrutiny tends to shine much brighter on a self-represented litigant than it does on those who are represented.  I consider that a factor identified by Mr P in his report is also relevant to the father’s presentation.  At paragraph 33 of that report Mr P says this:

    …Although I am mindful that by its very nature a psychotic illness can impair and restrict a person’s insight I have wondered whether [the father’s] reluctan[ce] to concede that he has a mental illness might at all be related to him believing that if he does he might be disadvantaged in being permitted to spend time with [the child].

12. I raised that in the course of proceedings. The father did not appear to be ready to acknowledge it, but I suspect that, as Mr P identifies, it may, indeed, have been a significant factor in the giving of accounts and in particular the giving of accounts by the father to Mr P. 

13. The father had a tendency to become side tracked on issues that had, as a common feature, the notion that the mother was in some way or another attempting to act vindictively towards him or to act so as to consciously deny him time with the child.  As will be clear from those passages in my earlier judgments to which I have made reference, and which, I make clear, is also evident in this final, “phase”, of these proceedings before me, I consider the mother has at all times been sincerely motivated to protect the child.

14. I do not consider that her attitude has in any sense been, “over protective”, or that she has in any way attempted to use concerns about the father’s mental illness to deny the father either time or a relationship with the child beyond that which is constrained by her legitimate concerns about the child’s best interests. In particular I find that the mother is sincere and genuine when she says that she is desirous of the child having a meaningful relationship with his father and that she wants the child to spend regular time with the father.

15. I also consider that the mother is genuine and sincere when she says that she believes that a meaningful relationship that involves regular and significant time with the father is beneficial to the child and, similarly, when she says that the child enjoys his time with his father.  She seems to me to be a mother appropriately devoted to her son’s best interests and motivated by a concern to ensure that he is safe.  In that respect I specifically reiterate the words of Mr F in an earlier report quoted above, given now some years ago, that the child is a delightful boy who wants a relationship with both of his parents and who exhibits a strong bond to each of them. None of the evidence received since that time, and, in particular, the evidence of Mr P would suggest any finding contrary to that opinion. 

16. The child is now approaching 10.  He, like all children, loves unconditionally each of his parents and accepts each of his parents with all of their foibles or faults.  At issue is his emotional, psychological and physical safety occasioned by behaviour from his father that is, in turn, occasioned by a mental illness (or perhaps, more accurately, the florid manifestations of that illness).

17. In looking at that issue, and the issue of risk more broadly, it seems to me that I should also record that which each of counsel for the mother and independent children’s lawyer conceded I could take into account as a notorious fact (section 144(1) Evidence Act1995 (Cth)) and it is this; mental illness is something which, in many sections of the community, attracts prejudice towards those who suffer from it. It is little understood and many people react to it in a manner wholly different to the way in which they react to those who suffer from significant physical illnesses or disabilities.

18. In that respect I consider that there are issues which emerge as a result of people being, “labelled”, as suffering from a mental illness or from particular types of mental illness.  Schizophrenia is, I think, a good example.  I have also taken that into account when looking at the evidence in this case and I consider that Mr F and Mr P have each, with respect, been acutely aware of that particular consideration in the preparation of their reports. 

Central Findings – Best Interests

1. As I have earlier said, this case is bounded by a number of findings in respect of the statutory considerations both Primary and Additional which can be arrived by reference to evidence which is essentially uncontroversial.  With reference to those statutory considerations I make the following findings:

   a)     The child will clearly derive benefit from having a meaningful relationship with each of his parents and, specifically, with his father.

   b)     To the extent that I ought take account of his views (as distinct, for example, from his, “wishes”) in light of his age and level of maturity, it is in my view plain that he desires a fulsome relationship with his father and enjoys immensely his time with his father.  His behaviour as observed by the reporting experts is plainly to the effect that he desires time with his father and, indeed, desires more time with his father.  There is no doubt that he wishes to spend more time with his father than could be availed of if supervised time was to be put in place. Moreover I consider the evidence is plain that he desires to have a relationship that encompasses activities broader than those that can be provided if supervision is put in place. 

   c)     I have already referred to the earlier evidence of Mr F where he speaks of the close bond that the child has with each of his parents.  It seems to me very clear that the nature of the relationship the child has with each of his parents is a close and loving one.  It is in my view to the mother’s credit as a parent (see e.g. section 60CC(4) and 60CC(4)AA) that she has facilitated an environment in which the child can feel free to express his feelings for his father and his desire to spend time with this father with the freedom that he plainly does.  So too, bearing in mind each of those sub-sections, I think that is a mark of the job the father has done as the child’s father when he is well.

   d)     So, too, it is a mark of the nature of the relationship that the child enjoys with his father at times when his illness is not florid or acute that he should express those views about his father and in particular express no fear or concerns about spending time with his father. 

   e)     I have already referred to the fact that I consider the mother genuinely willing and able to facilitate and encourage a close and continuing relationship between the child and his father subject, of course, to the central issue in this case to which I have referred.  Despite the manifestations of the persecutory beliefs expressed by the father I consider that he too is willing and able to encourage a close and continuing relationship between the child and his mother. I consider that, occasionally, the father’s illness intrudes and that he says things to the child which he ought not.  I consider though, as Mr P says in his most recent report, that the child has now completed most of those significant foundation developmental milestones and he is in a position whereby he is beginning to be able to, as it were, sort the wheat from the chaff in terms of those things which his father might say about his mother that he knows by reason of the depth of the relationship with his mother are untrue, exaggerated or the like. 

   f)   The orders proposed effect a change to the existing arrangements that have occurred now unfortunately for longer than they should have. That change is, in effect, on either parties case (provided safety issues can be addressed) likely to be beneficial.  I do not consider that any such change or, indeed, a change that would see the child spending longer periods of time (if any risk could be rendered acceptable) would be anything other than beneficial for the child. 

   g)     There is no real practical difficulty in expense associated with time or with communication save the usual exigencies that exist when parents are separated and children reach an age where they are busy with their own individual activities, friends and the like. 

   h)     I consider that plainly the mother has the capacity to provide for the needs of the child including his emotional and intellectual needs and, indeed, no evidence presented in these proceedings at any stage would suggest to the contrary.  I consider the father, if well, also has the capacity to provide for the child’s needs including his emotional and intellectual needs.  I consider that the father’s capacity to do so is very significantly impaired when he is unwell, and, in particular, at a time when his illness is florid or acute.  I consider that the father’s capacity is impaired by reason of his lack of insight into his mental illness to which further reference will be made below.

   i)   Illness aside there is no doubt that the father exhibits an appropriate attitude to the child and to the responsibilities of parenthood.  So, too, there is no issue about the mother’s attitude and responsibilities in that respect. 

Central Findings – Parental Responsibility

1. Again, I have in my earlier decisions attempted to enunciate my understanding of the principles binding upon me emanating from the legislation and the Full Court and High Court authorities in respect of this issue – for example, in Hardie & Capris earlier referred to. I again make it clear, should my reasons need to be examined elsewhere, that I rely upon my understanding there expressed in the application of the principles to this particular case. 

2. Here, it seems to me that once again very clear findings can be made with respect to the issue of parental responsibility. 

3. Section 65DAC of the Act provides for certain mandatory requirements if parents are to share parental responsibility (whether equally or not).  It is abundantly plain that these parents have virtually no capacity to communicate in any meaningful way about anything, including in particular, issues relating to the child.  In circumstances where each of the parents present as decent loving people that is sad indeed. However, the long standing issues emanating from the father’s mental health have produced a situation where, on either party’s case, the capacity to communicate is simply damaged beyond repair.

4. There have been in the past attempts for the parties to communicate via a communication book. Various factual assertions and counter assertions attend the breakdown in the efficacy of that form of communication that are unnecessary to decide; for present purposes, it is enough to find that both parties agree that it didn’t work.

5. The father attempted, in cross-examination of the mother, to elicit agreement to methodology proposed by him that, he says, would allow communication to take place between the two of them in respect of the child.  For example, he postulated a “mediator” – for example, someone associated with the church that he attends – as an, “intermediary”, through which communication could occur.  No specific person was named.

6. Leaving aside the practical difficulties associated with that in terms of what section 65DAC contemplates, what is abundantly plain on the evidence as it seems to me is that the communication will likely improve in circumstances, but where the mother can be convinced that the father is receiving and complying with psychiatric treatment and care on a regular basis and as a result can be satisfied that his illness is well controlled and not impacting on his behaviour. It will almost certainly only improve in those circumstances.

7. As will emerge below, the father’s history causes me to be significantly circumspect about optimism in that respect.  Indeed, the orders which I intend to put in place will contain within them conditions which might on the surface seem onerous but which are designed to provide the most stable set of circumstances within which the father might enjoy the freedom to spend time with the child on a regular basis and in a substantive quantity.

8. In short, in my view at the current time and into the foreseeable future the parents are simply incapable of conducting the sort of process which section 65DAC mandatorily requires.

9. The removal of parental responsibility from a parent who would otherwise at law have parental responsibility for a child with a co-parent is at it seems to me an important matter.  It is, fundamentally, a significant interference with the rights of a person.  Plainly those rights should take second place to the best interests of the particular child.  Here it seems to me that when regard is had to the whole of the history of the father’s mental illness that the mother has provided the stability for the child so necessary to his appropriate development. Equally it seems to me on the whole of the evidence that I should have concerns about the father’s capacity to make decisions about the child into the future by reason of his mental illness.

10. For those reasons I conclude that, firstly, it is in the child’s best interests that the presumption of equal shared parental responsibility be rebutted, and, secondly, that “parental responsibility” within the meaning of the Act should vest solely in the mother. 

11. That being the case the pre-condition for the application of section 65DAA of the Act namely, “if a parenting order…is to provide that a child’s parents are to have equal shared parental responsibility”, has no application in the present case.  Accordingly, as it seems to me, the matters referred to by the High Court in MRR & GR similarly have no application in the sense of there being a pre-condition to the exercise of power by the Court to make parenting orders.

12. Further, as a consequence of the decision just referred to, the issue of best interest is, to use the words of the Full Court in Goode v Goode (2006) FLC 93-286, “at large”.

13. Reference to the findings earlier made in respect of the statutory Considerations clearly point to the father having a regular, meaningful relationship with the child that would see him spend regular and significant time with him.  The caveat to any such ultimate conclusion is, however, an assessment of such risk as might be presented to the child by the father’s mental health, a matter which is plainly encompassed by the second of the Primary Considerations which, as Ms McDiarmid accurately, in my view, submits, is in potential collision with the first of those Primary Considerations. 

14. It is to the evidence in respect of that central issue that I now turn.  Before doing so it seems to me that the whole of the evidence, further details of which are about to be discussed, points to the following general findings which should inform orders to be made in this case in the child’s best interests. In my judgment, the child’s best interests require that:

    a)The father be provided with an incentive to be compliant with appropriate psychiatric treatment;

    b)So, too, treatment that attempts to have the father gain insight into his mental illness, the ramifications of it, and the need for regular monitoring and treatment of it;

    c)The father’s slightly improved day-to-day mental health status be given every opportunity to continue;

    d)The child can be safe, in the broad sense of that word, while maximising time with his father;  and

    e)The child can mature further and so as to arrive at his own mature understanding of the father that he has, whilst at the same time enjoying significant periods of time with his father.

1. As observed, the mother and the independent children’s lawyer seek similar orders in these proceedings.  I have come to the conclusion that the broad thrust of those orders are consistent with the child’s best interests, but I have determined to make a number of changes to the draft orders proposed by each of the independent children’s lawyer and the mother.

2. I propose to outline my reasons for modifying the orders sought by the independent children’s lawyer and rejecting some aspects of them, and for accepting and rejecting some aspects of the orders contended for by the mother.  I then propose to review the evidence by which I reject the father’s central contention for significantly greater time than that which is proposed by either the independent children’s lawyer or the mother, and for rejecting his (implicit) contention that any such time ordered consistent with his proposal should be unrestrained in terms of any psychiatric conditions or the like.

The Orders Sought by the Mother and Independent Children’s Lawyer

A.       The Requirement for a Case Manager

1. The orders as proposed by the independent children’s lawyer and supported by the mother provide mandatorily for consultation by the father with a “case manager or psychologist.”  The father raises issues of cost which, on the face of the evidence before me (despite difficulties in ascertaining just what the father’s employment position is, or is likely to be), nevertheless seem to me to be valid where Dr K, at least, is concerned about his capacity to either find or hold down regular remunerative employment.

2. Secondly, the availability of psychiatric services at low or no cost within the community (for example, through Medicare) is, as it seems to me, not as extensive as what might ideally be hoped for.  I want to leave open the possibility for the father to attend regular consultations with a treating psychiatrist as the mother and ICL contend but, at the same time, to introduce flexibility in the means by which the progress of his condition can be monitored.  It may well be that programs are available at little or no cost so as to facilitate a case manager or psychologist for the father.  In that situation, I accept that the father ought comply with their requirements and see them on a regular basis for the reasons advanced by Dr K. However if, for example, a treating psychiatrist and a general practitioner were to agree upon a methodology whereby treatment and/or consultations could be monitored in the community other than by case manager or psychologist, it seems to me, particularly if cost considerations are relevant, that the father ought be availed of that opportunity.

3. Similarly, the independent children’s lawyer and mother contend that the orders should mandate consultations with the psychiatrist, case manager or psychologist on a monthly basis.  The rationale behind that mooted order is obvious, namely that regularity in treatment by the father is undoubtedly ideal, and it is necessary to ensure compliance on a regular basis if the concerns emanating from the father’s psychiatric history are to be allayed or eliminated. However, specifying such a process mandatorily in orders seems to me to cut across the professionalism and integrity of the individual health professionals involved.  I have, then, framed the orders that I will make in a manner that seeks to achieve a number of different objectives. 

4. The first is to achieve the same objective which, as I apprehend it, the monthly requirement just referred to seeks to achieve.  Secondly, the order ultimately made by me gives credence to the ethical and professional obligations of psychiatrists and other health professionals.  Thirdly, the orders as made by me seek to preserve, as much as possible, the confidentiality and privacy attaching to a psychiatrist/patient relationship which, without question, is a relationship of very significant trust and confidence.

5. In that respect, the orders seek to maintain, to the maximum extent possible, the efficacy of any therapeutic alliance developed between the father and the treating psychiatrist. 

6. Of course, those same orders seek to balance, as against those matters, the need for the independent children’s lawyer in particular to know of any matters that concern the psychiatrist or other treating health professional in respect of any deterioration in the father’s mental health and/or any matters which arise during the course of that treatment that might be seen to potentially directly affect the child’s welfare.

7. I have accordingly made provision for a process of consultation with the independent children’s lawyer facilitated by the father providing an authority limited to those matters which I consider strike a balance in the manner just referred to.

B.       Saturday versus Sunday

1. An issue arises as to whether the ordered time should occur on Saturday or Sunday.  The mother would prefer the former, the father contends the latter and the orders mooted by the independent children’s lawyer contemplate Sunday. 

2. I reiterate that the father’s employment position is, at best, murky on the evidence.  He asserts that he may have employment.  Indeed, during the course of the handing down of this oral judgment, it was necessary for the father to leave the court so as to attend a job interview.  He says that there may be the need for him to work on Saturday (as distinct from Sunday). I have decided to maximise his employment prospects by acceding to his request that time occur on a Sunday.  Arguments advanced by the mother in support of Sunday were associated with the need for the child to play with his friends on the Sunday as distinct from Saturday and the like, and I was not persuaded by those arguments.

C.       The Changeover Point

1. The mother proposes that Changeover Venue 2 be the changeover point.  The independent children’s lawyer asserts Police Station 1.  The father’s position in respect of that seems to be predicated on his having weekend time and in that event, he says changeover should occur at school. 

2. I consider that, in general terms, police stations should be avoided as changeover venues for fear that they provide the wrong impression to a child about the nature of time spent between the child and the parent.

3. Here, there is an additional consideration that Police Station 1 was the scene of an unpleasant and disturbing incident which resulted in the father receiving involuntary treatment pursuant to the Mental Health Act. It seems to me that Changeover Venue 2 is preferable.

4. I am not prepared to order that changeovers occur at the school in light of what can be the disturbing manifestations of acute florid illness on the part of the father.  Much water yet needs to flow under the bridge before changeovers at school should be contemplated.

D.       Time

1. Finally, and probably most substantially, I have determined to increase the initial time spent between the child and his father from the three hours suggested by the independent children’s lawyer and adopted by the mother.  The rationale behind the “grading” of time, as provided in the mooted orders has substance on the evidence before me.  The father has, for some time, been having supervised time to the child and non-supervised time will subject him to what are, in terms of recent history, a new parenting experience.

2. However, it seems to me that the father has, all else considered, patiently dealt with significant restrictions on his time with the child.  That is not for a moment to suggest that somehow quantity of time should be seen as some form of “reward” or indeed “punishment.”  Quite the contrary.  However, I am significantly persuaded by the attitude of the child towards his father as expressed to Mr F when he was much younger, and more recently to Mr P.  I consider that the child wants to enjoy longer periods of time with his father.

3. I have contemplated whether, in the first instance, I should remove the restriction to Park 1 in Brisbane contained in the draft orders.  Again, the rationale behind that is clear.  It allows the child to feel safe in a public environment where one would hope the disincentives for the father to engage in “unusual behaviour” (to seek a neutral expression) would be significant.  In the end, I have determined to so restrict it.  It seems to me that there are marked opportunities for a number of different activities to occur within that environment.  It provides an environment where there are a number of other children, a number of potential different activities and a number of different venues where the father and the child can enjoy each other’s company.

4. I make it plain, however, that the expression “[Park 1 in Brisbane]” is contemplated by me as being a wide one and, as but one example, would encompass, for example, the father and the child walking to Area 1 adjacent to Park 1 in Brisbane and to Area 2 adjacent to Park 1 in Brisbane. I am persuaded some restrictions are necessary; noting, that, although improvements in the father’s day-to-day mental health might be seen to be minimal (in that respect, I particularly rely upon the observations of Mr P). But, nevertheless there has been some improvement.

5. Importantly, it needs to be noted that the time between the child and his father has, as its precursor, the father complying with the requirements earlier referred to.  The requirements might appear, as I have said, to be somewhat onerous.  They require him to consult with a psychiatrist and require him to undertake regular treatment, to notify of medication, attendance times and the like.

6. Whilst they might appear somewhat onerous, it seems to me that if the father is serious about attempting to gain insight into his illness and serious about attempting to facilitate time with the child, it is necessary for him to “take on board” the opinions of a number of psychiatrists and a number of family consultants, all of whom have (differing) expertise which they have offered to the father. The conditions do no more than to require of the father (or indeed anyone else suffering from mental illness of that significance) what, it seems to me, is sensible and in their own best interests for their future mental health.

7. Given that the restrictions in the orders need to be complied with in order for the ordered time to take place, it seems to me that a balance is appropriately struck between the benefit of a relationship to the child and the proper concerns about safety emanating from the illness.

8. I should also mention in that respect that I have, in the orders made by me, eliminated the second stage, as it were, of the orders proposed by the independent children’s lawyer.  That order would have seen a change from three hours at Park 1 in Brisbane to three hours unrestricted as to place.  Again, for the reasons I have just referred to, I am persuaded that after an initial few visits over a period of three months, it is not necessary to so confine the period of time.

9. Thus, within a period of about three months from the date of these orders, the orders will provide that the child spend an entire Sunday with his father, unrestricted as to locality.  By that time, each and all of the requirements of the orders that seek to deal with the father’s mental health issues should be in place to one extent or another, and at least some information (for example, as to the nature of treatment, the dates of consultation and the like) should be available to the independent children’s lawyer.  Because of those factors, and the extensive nature of the monitoring contemplated by the conditions, it seems to me appropriate to contemplate an entire day’s time between the child and his father, commencing 12 June.

10. I otherwise effectively agree with the orders proposed by the independent children’s lawyer including, for example, the commencement of overnight time on 11 November 2011.

11. I should add that, in what was, in effect, a “throw-away line” at the very end of the case, the father indicated that he desired time on his birthday and the child’s birthday.  It seems to me appropriate that there should be communication between the father and the child on those days.  The child’s birthday is in July; the father’s birthday in January next year.  All else being equal and going well, by the time of the child’s birthday, the father will be seeing the child each alternate Sunday.  He will then, this year, see the child in the week before and the week after the child’s birthday and, in those circumstances, I have provided that the father have telephone communication with the child on each of his birthday and the child’s birthday.

12. I now turn to address the evidence of the experts in this matter and, in particular, to address the evidence by reference to which I am persuaded that the father’s case for time more extensive than that just referred to ought be rejected. 

Evidence of the Experts

1. A number of findings can be made on the basis that there is either no disagreement between Drs W, K and O, or that any such disagreement as there is, has little practical effect upon the central decision to be made here:

   a)the father has suffered in the past from a serious mental illness;

   b)while a precise diagnosis might not be possible, or alternatively differing diagnoses might be open, the illness/es is of a psychotic type;

   c)the illness is chronic and relapsing;

   d)there is a very high likelihood that the illness will reoccur floridly or acutely in the future, but the timing of that is difficult, if not impossible, to predict;

   e)when floridly unwell, the father presents a risk to the child’s psychological or emotional health (and perhaps to his physical health) by reason of the manifestations of the illness resulting in “uncontained behaviours” (to use a neutral or non-pejorative description);

   f)the father has very limited, if any, insight into his mental illness, its nature, type or severity;

   g)the father has very limited, if any, insight into the need for him to receive regular treatment and possibly, as part of that, medication;

   h)therapeutic alliances with previous treating psychiatrists have been tenuous;

   i)evidence about compliance with medication emanating from the father is confused at best, such that it is not possible to build a coherent picture of same;

   j)the concerns expressed by, in particular, Dr K about the father’s capacity and willingness to fully comply with psychiatric treatment, including medication, are well founded;

   k)attendance by the father upon psychiatrists or psychiatric services has, in the past, not followed a regular predictable pattern;

   l)there should be some concern about the father’s future willingness and capacity to attend upon psychiatrists or psychiatric services in a regular and predictable way;

   m)the father needs ongoing psychiatric care, preferably including care in the community through services such as a case manager or similar who can see and work with the father in the community and in conjunction with a treating psychiatrist.

2. Drs K and O are agreed that the father would benefit now from medication taken regularly and compliantly, but they differ slightly as to the type of medication and dosage.  Dr W is not convinced that medication is needed now. I am not convinced, with respect, that Dr W has as complete a picture of the father’s past psychiatric history as do the other two doctors.

3. Dr W suggests a number of possible diagnoses, the vast majority of which are psychotic illnesses and include, for example, bipolar disorder.  Whatever be the diagnosis, Dr W is of the view that the illness is “in remission.”  Dr O agrees that the father’s illness (which he regards as a serious psychotic illness, probably of a psycho-affective type) is not currently florid.  Dr K is more circumspect about the current status of the illness.  He points to what he regards as significant disruption to the father’s day-to-day functioning and refers in particular to difficulties in obtaining a coherent history of employment, qualifications and the like, as well as the past hospitalisations of the father and the circumstances in which that occurred. In effect, Dr K said that, in his view, “the illness is bubbling along below the surface.” 

4. It is important to give those opinions - which, as can be observed, are, for the most part, significantly in accord – foundation by reference to the evidence before the court. 

5. Exhibit F1 is a document tendered by the father.  It is a document relating to his Justices Examination Order in December 2002.  I do not propose to quote from that document at length, but it is sufficient, for current purposes, to note that disturbing incidents were described by the mother as giving rise to the involuntary treatment administered to the father at that time.

6. A very helpful and, I find important, document is Exhibit ICL1 dated 23 July 2009. It is a clinical report prepared for the Mental Health Tribunal.  More recently, a further report has been prepared by Dr O which became Exhibit ICL5 in the proceedings. It, too, is very important and instructive.   That document was provided to the Mental Health Court in October 2009.  At that time, the father was seeking to review a decision by the Mental Health Review Tribunal refusing to revoke his Involuntary Treatment Order.

7. That document helpfully records the father’s psychiatric history (including reference to the factual errors asserted by the father earlier referred to).  It goes on to provide a summary of opinion.  It is important, I think, to quote that summary at some length:

   There is a significant inconsistency between the reports from [the father’s] ex-wife (and other collateral sources in the community) about his behaviour since 2002, and [the father’s] self-report.  Given the marital conflict, whatever the cause, and the continuing legal dispute over custody, it is important to be cautious in accepting either source of information.  If all that [the father’s] ex-wife reports about his behaviour is true, then [the father] does hold a range of delusional thoughts, mostly persecutory, and has displayed erratic behaviour with periods of irritability and, at times, aggression. 

   If only the self-reports by [the father] and the observations by his treating team since 2002 are considered, then it appears that [the father] has showed signs of being hypo-manic, mildly though disordered (and, at one time, reported to show marked thought disorder) to hold a number of odd beliefs and display poor judgment in a broad range of situations.  It is not likely that these signs had been purely as a result of significant stress in a vulnerable person.  Moreover, [the father] appears to be more settled since better compliance with medication has been achieved.

   It is more likely that [the father’s] experiences and behaviours over the two time periods have some link and that the link is as a result of a disorder in the psychotic/affective spectrum with the most likely diagnosis being schizoaffective disorder or bipolar affective disorder.  Alternatively, but less likely, he may have a schizophrenia illness.  He does exhibit some reduced functioning which might possibly be caused by primary negative symptoms as a result of schizophrenia, however it is more likely to be secondary to the flupenthixol – I think that should be deposit – which was confirmed to cause excessive sleep and sedation in the past.

8. In relation to the findings earlier made, it should also be pointed out that the same report goes on to say:

   Given the stressors in [the father’s] life, his inability to maintain sustained employment and [the father’s] stated desire to parent and maintain custody of his son, it would be imperative to have ongoing treatment which would include further assessment to understand all the aspects of [the father’s] condition and the impact of his personality and psychosocial stressors on his condition and would include finding appropriate antipsychotic and mood stabiliser medications which are well tolerated.

1. And later:

   Given the reports of [the father’s] disorganised and, at times, erratic behaviour which on one occasion involved his son, I would conclude that despite [the father’s] reported caring relationship with his son, that there is an ongoing risk to his son if the same disorganised and erratic behaviour would continue, or if he were to ever experience a psychotic more affective episode as in the 1990s.

2. The psychiatric opinions are, obviously enough, a vitally important aspect of this case.  Equally vital, though, is the child’s position. 

3. This is a point sought to be emphasised during the concurrent evidence given by the family consultant, Mr P.  Mr P’s report is, I consider, very helpful.  First, it helpfully refers to matters which form the foundation for the (essentially uncontroversial) findings earlier made in respect of the statutory Considerations.  Secondly, it neatly encapsulates the potential risks to which reference has already been made:

   38.If, by way of psychiatric opinion, and ideally by demonstrated evidence on the father’s past parenting, the court establishes that [the father] is likely to experience florid psychotic episodes, then I think it would be reasonable to suspect that [the child] may experience his father at these times as agitated and chaotic and disorganised.  The father’s judgment may also be affected with implications for his decision-making regarding [the child].  If [the father] was to become actively delusional, [the child] may become confused as he attempts to compare his own perceptions with those of his father (ie, the task of integrating his perceptions into a coherent identity).  This particularly becomes problematic when the child is included in the parent’s delusional thinking (eg, persecutory or paranoid beliefs).  If the court was to establish that [the child] is highly likely to experience repeated extreme or bizarre behaviour from his father, then this would, in my opinion, warrant a highly cautious outlook.

4. Equally importantly, as it seems to me, a balance is, appropriately with respect, also referred to in Mr P’s report:

   39.I am mindful that [the father’s] current mental state is an issue of significant controversy and contention in these proceedings.  In relation to the second factor in my earlier paragraph regarding vulnerability and resilience (ie, the severity and chronicity including episodicity, especially where hospitalisation is involved, of illness), I believe this is something best left to psychiatric opinion, although I wish to comment briefly on an issue that I believe is relevant to the current proceedings.

   40.It is widely recognised that stress is a common and often powerful precipitating factor in the relapse of mental illness.  I have now been involved with [the father] in an assessment role over a period of some 17 months.  It is my opinion that like most people, including the mother, he is finding the legal proceedings draining and stressful.  His stress is, I suspect, perpetuated by the uncertainty and concern he holds regarding his future relationship with his son.  I simply cannot quantify the extent to which stress impairs or comprises (sic, compromises) [the father’s] capacity to function, but I can say, from a mental health relapse-prevention approach, that alleviating him of the stress is very likely to increase his generalised capacity to cope.  In other words, once the legal proceedings are behind him, [the father’s] mental state may be at considerably less risk of relapsing.

   …

   47.In my view, the majority of [the child’s] critically important developmental tasks are now complete.  The “window” on domains such as his moral and conscience development and fundamental attachment experiences are essentially now shut.  Linked closely and inextricably with this, [the child’s] early socialisation appears to have been mostly positive.  In many ways, it is reasonable to suggest that [the child] has successfully mastered those early developmental tasks which typically give rise to problems later in life if not adequately navigated.  It would also be reasonable then to suggest that [the child’s] early developmental experiences have contributed to what I have assessed as good resiliency and a good coping style.  I have assessed [the child] as being a child who is not remarkably vulnerable from an emotional or psychological point of view.  The mother’s reports of [the child] lend support to this.

   48.I certainly do not want to appear as though I am dismissing or minimising the potential impact on [the child] should he be directly exposed to a relapse in his father’s mental state.  I believe I have indicated that from what I have said in this and my first report.  I highlight that [the child] appears to be an emotional and psychologically robust child because I believe it indicates he may be less vulnerable to showing negative effects than another child who is not so resilient.

5. Directly relevant to the child’s best interests are the following comments, which I specifically adopt an directly relevant to my ultimate assessment of what is in the child’s best interests.

   42.Gaining a factual and non-emotive understanding of his father’s mental health issue is vitally important for [the child].  At the moment he is unsure and confused about something that he knows only by a label.  [The child] is mindful that his father has something called a mental illness but, as I have said more than once in my reports, I am concerned that like most children, [the child] appears to not fully understand what exactly a mental illness is and is not.  How and why he knows his father is thought to have a mental illness is unclear to me.  It is difficult to say with certainty, but I get the impression that [the child] has probably not come to this conclusion as a result of his actual experience of his father.  Instead I suspect that he has been told this, or at least inferred it from what others have said to him about his father.

   43.It is my experience that children of [the child’s] age very rarely in their own mind attribute their parents’ behaviour to the concept or notion of a mental illness.  Children tend to experience a parent as they are, with the usual strengths and flaws all parents possess and internalise a view or expectation of them based on these repeated experiences.  This is somewhat of an academic argument, but I raise it because I think it highlights two very important issues.  Firstly, it shows how important it is for children in situations like [the child’s] to receive a thorough and non-emotive explanation of a parental mental illness.  [The father] has resisted the idea that [the child] attends the [Children’s Progarm] because he maintains it would confirm that he has a mental illness.  The second issue is that it highlights how vulnerable and sensitive a child’s mind can be to influence from others, especially family members.  Although I do not believe that she has intentionally or wittingly done so in a decisive way, I do think [the mother] may have influenced the way in which [the child] thinks about his father.

   44.I do not believe [the child] has ever been frightened, scared or upset as a consequence of spending time with his father and yet he presents as being somewhat confused and unsure about what to expect from his father in the future.  It seems to me that [the child’s] anticipation of his father has been distorted somewhat by the fact that he has been advised his father has a mental illness.  Stated simply, it seems as though his appraisal and expectations of his father are being “filtered” through, and predominated by, his knowledge that his father has a mental illness rather than on the basis of his actual experiences of him.  It is very important that [the mother] avoid making any reference to [the child] of the father having a mental illness.

6. Contained in those passages can be seen the evidentiary foundation for orders to be made by me that the father facilitate the child’s attendance at the program mentioned by Mr P, and, similarly, orders as mooted by the independent children’s lawyer in respect of non-denigration and the like. 

7. I should emphasise that Mr P shares the concern of the psychiatrists for regular psychiatric care to be undertaken (and committed to) by the father.  He sees that as being important to the development of insight and thus the capacity for the father to provide the necessary parental input that is appropriate for a child of the child’s age.

Conclusions

1. The evidence to which I have just referred seems to me point, in my judgment, to orders in the child’s best interests which, on the one hand, predominate the opportunities and amounts of time that the child should spend with his father whilst at the same time paying proper regard to what I find is the fragility of the father’s mental health.

2. I reiterate that, although the conditions imposed by the orders in respect of treatment and the like might seem onerous, they are, in my view, nothing more than those which might be expected of someone with a serious mental illness who was, in the best interests of their son, seeking to do the best they could to address that illness and to attempt, as best they can, to ensure their future mental health so as to predominate the time and the quality of time that they spend with their child.

3. It is, in my view, necessary to ensure the child’s safety from the risks posed by the father’s illness becoming more acute or florid as time goes on.  It is, in my view, necessary to provide some form of “monitoring” of the circumstances indicated by the psychiatrists as providing the best bulwark against that occurring in the future, namely regular committed psychiatric treatment and follow up and compliance by the father with that treatment and any medication prescribed.

4. If the father avails himself of that treatment and those opportunities, I remain convinced that he will provide to the child appropriate nurturing and they will each enjoy a meaningful relationship with the other that will allow the child to develop a complete and whole picture of the father that he has.

5. If the father is unwilling, or unable, to comply with those requirements and if, as a result, there is a deterioration in his mental health or, importantly, the potential for the risk of the deterioration in his mental health to significantly increase, then the opportunities for time between the father and the child might need to be looked at accordingly.

6. In that respect, it will be appreciated that the independent children’s lawyer seeks orders, adopted by the mother, that are in the nature of interim orders with respect to time. 

7. There is, on my part, very considerable reluctance to make interim orders in the manner suggested.  The reason for that is an obvious one, and finds reflection in Division 12A of the Act and, in particular, section 69ZN where can be seen, a determination on the part of the legislature to attempt to bring proceedings with respect to children to finality, so as to remove from them the indirect effects of litigation.

8. I have that consideration acutely in mind and it is a strong argument against making interim orders. 

9. However, in this case, the nature of the relationship which the child can potentially enjoy with his father is of such benefit to him, if his father complies with the psychiatric treatment that is suggested and gains as a result greater stability in his mental health and greater stability as a result in his behaviours, then I am persuaded that interim orders should be made.  I consider that by doing so, there is likely to be provided to the father, an added incentive, as it were, to comply with the orders relating to treatment and the treatment itself, and, if that occurs, not only will the father’s mental health benefit, but, so too, will the child.

10. In circumstances where the essential task of the court is to attempt to arrive at orders which are in the child’s best interests, it seems to me that I should avail the child of orders which, I consider, optimise the opportunity for the best relationship between he and his father to commence, flourish and develop.  It is primarily for that reason that I am persuaded, notwithstanding this matter’s lengthy history, and the potential for it to again become litigious, that I am nevertheless persuaded that I should make interim orders of the type referred to in the proposed orders by the ICL and adopted by the mother, and to receive, in due course, a report as to progress.

11. I can only hope that the future holds compliance and that, for the child’s sake, this lengthy process of litigation will conclude, for all intents and purposes, with this judgment. 

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 16 March 2011

Associate: 

Date:  25 March 2011