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

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:

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

THAT the mother have sole parental responsibility for the child.

IT IS FURTHER ORDERED:

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Connor & Hulett

Details

AGLC: Connor & Hulett [2011] FamCA 196
Case: [2011] FamCA 196
Decision Date: 16 March 2011

CaseChat Overview and Summary

This case involved proceedings before Murphy J concerning the residence and time spent with a child, B. The father suffered from a mental illness, which was a central consideration in determining the child's best interests. The dispute focused on the arrangements for the child's living situation and contact with both parents, particularly in light of the father's mental health condition.

The court was required to determine with whom the child, B, should reside and with whom the child should spend time. Crucially, the court had to assess the father's mental illness and its potential impact on the child's welfare when making these orders, ensuring that the paramount consideration of the child's best interests was upheld. The court also needed to establish appropriate measures to support the father's treatment and monitor his compliance, thereby safeguarding the child.

Murphy J ordered that the child, B, reside with the mother and that the mother have sole parental responsibility. The court further made detailed orders aimed at facilitating the father's engagement with psychiatric treatment and community support programs, including requiring the father to consult with a psychiatrist, undertake recommended treatment, and provide information regarding his treatment to the Independent Children's Lawyer. The orders also stipulated specific arrangements for the child to spend time with the father, contingent on the father's compliance with his treatment obligations, and included provisions for communication between the child and the father. The court also imposed restrictions on parental criticism of each other and the discussion of legal proceedings with the child.

Orders

Orders of the court

IT IS ORDERED:

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

THAT the mother have sole parental responsibility for the child.

IT IS FURTHER ORDERED:

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.

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

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.

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.

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.

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.

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:

10.

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.

11.

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.

12.

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.

13.

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.

14.

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.

15.

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.

16.

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.

17.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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