F and F - [2002] FMCAfam 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F

[2002] FMCA fam 125

FAMILY LAW – Contact – best interests.

Applicant:

B N F

Respondent:

W D F

File No:

ZA 4146 of 2001

Delivered on:

27 March 2002

Delivered at:

Adelaide

Hearing Date:

27 March 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

Hume Taylor & Co

Counsel for the Respondent:

Mr McQuade

Solicitors for the Respondent:

Moody Rossi & Co

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ZA 4146 of 2001

B N F

Applicant

And

W D F

Respondent

REASONS FOR JUDGMENT

These are ex tempore reasons for judgment – I have before me this afternoon an application which is made orally by Mr McQuade, counsel for the wife in this matter of F. He seeks an order that during the period of adjournment that the husband's contact to the two children of the marriage, be supervised during each contact period. By way of background, on 31 October 2001, Federal Magistrate Mead made an order that pending the final hearing of the matter, the wife give and the husband take contact with K C F, born 3 November 1995 and S E F, born 28 August 1998 as follows, each alternate weekend from 9 am to 6 pm on each of the Saturday and Sunday of those weekends.
So the position is that since 31 October of last year, Mr F has had contact to K and S every second weekend on Saturday from 9 am until 6 pm and on Sunday from 9 am until 6 pm. When the case began before me on Monday one of the issues that was at stake between the parties was whether it was appropriate and in S's and K's best interest for Mr F to move from that situation to one that would include overnight contact.
The reason why there is debate about the level of contact between Mr F and the two children is that in the past, and there is no argument about this, he has suffered from a serious depressive illness. Much of the evidence that has been led before me both today and on Monday and Tuesday has related to the extent of Mr F's illness, the treatment he has had and his likely prognosis for the future. In particular I have heard evidence from Dr Tomkins, who is, in my view, a very experienced psychiatrist. Dr Tomkins was asked by Mr F's primary treating psychiatrist, a doctor called Dr Fraser, to provide a second opinion in respect of Mr F’s condition.
For a variety of reasons it is not possible for the case to be finalised in the 2 days that had been set aside for it. Unfortunately it will have to be adjourned and the parties come back and the hearing resume. One of the reasons for that is so that Dr Fraser, who has been treating Mr F for a considerable period of time, can give evidence about his view of Mr F's condition. But having said that, I have heard extensive evidence from Dr Tomkins about his view of Mr F’s current position. It is as a result of that evidence that Mrs F brings this application and as I understand it, the effect of the application is that she seeks that Mr F's contact be supervised by his mother, a lady who gave evidence yesterday.
Mr F has already given evidence in support of his case and been extensively cross-examined by Mr McQuade. In my view, Mr F was quite frank about a number of matters in his evidence. He agrees that he drinks regularly and that he drinks most days. He also agrees that he smokes cannabis. He was quite frank that at the present time he is drinking more than he would like to drink and he was also, in my view, quite frank that he uses alcohol and cannabis to assist him to cope with life at present. He gave evidence that at the present time he is drinking four stubbies of beer each evening or thereabouts and two glasses of wine and that he has a pipe of cannabis each evening. He smokes some of the pipe in the early evening and some before he goes to bed, which he says assists him with sleeping.
Dr Tomkins, in his evidence said that depression by its nature is a cyclic illness, by that I mean it comes and goes and can resolve without the intervention of medical treatment. It also seems clear that, at least on the evidence that I have heard to date, that unfortunately Mr F has had depression for some years now, for possibly as long as 15 years. During his life and after he has suffered one vicissitude or another he has had severe periods of depression. The most severe of which was shortly after the parties separated and which resulted in him being admitted to the G Psychiatric Hospital.
In his evidence Dr Tomkins gave his view that he was concerned about the level of alcohol and cannabis that the husband was consuming, particularly given his current condition. He, as I recall it, thought the level of consumption was potentially harmful for Mr F and could cause all sorts of organic problems but more importantly in the context of this case, could deterimentally affect the effectiveness of the antidepressant medication that Mr F is currently taking. In this regard I should say that he has been prescribed an antidepressant drug called Ciprimil by Dr Fraser.
As I understand Dr Tomkins evidence, the effect of drinking is that it causes the body to excrete medications more quickly than otherwise and also alcohol may have a contrary effect on the uptake of the medicine itself. It is also, perhaps it is obvious to say this, but by their nature alcohol and cannabis are drugs that dis-inhibit. That is one of their effects and no doubt that is why people take them. They are also substances that too a certain degree affect the perception that one has of the World. Mr McQuade, on behalf of his client submits that what Dr Tomkins says in his evidence that it may be the position that Mr F will, by his use of alcohol and cannabis, mask his understanding or his insight into whether or not he is having another depressive incident. This potential lack of insight may have potentially adverse consequences for the children.
Dr Tomkins was also of the view that drinking itself potentially exacerbates depression.
The evidence that I have heard not only from Dr Tomkins but from Mr F himself is that he (Mr F) is in a considerable state of tension over the outcome of these proceedings and I have no doubt that that is the case. I am also sure that it is the case that for Mr F, without wishing to appear trite, coming to Court for him is an extremely stressful business. It is for anybody. Dr Tomkins has said that if Mr F has an adverse finding from this Court this of itself may be an exacerbating factor in regards to his depression.
Basically, it is for those reasons and particularly that it is said that there is the potential for Mr F's condition to deteriorate that Mr McQuade submits that there should be supervision of Mr F’s contact with S and K.
I should also say that in the course of evidence I was told about a number of unfortunate incidents regarding Mr F and Mrs F. Those incidents apparently took place in the presence of the children at handover. They involved abusive language by Mr F of Mrs F and Mr F spitting on the ground before Mrs F. Mr F indicated that he was not concerned about the impact of that on his wife and that he did not regret it.
As a result of these various matters, Dr Tomkins expressed the view in cross-examination that it would be prudent to have someone present at contact. He said in fact that it would be prudent at one level but imprudent at another level. Imprudent in the sense that it might emphasise the belief in the husband's mind that he had suffered a set back in these proceedings and this might in turn exacerbate any depressive tendencies that he has. Prudent in the sense I take it that it would obviously prevent any adverse effects on the children of any deleterious changes in the husband’s condition and potentially allow the early detection of any change in that condition.
In his evidence, at the conclusion of his evidence-in-chief, Dr Tomkins gave his view, that in terms of the psychiatric position of Mr F, at the present time, what he characterised as axis two conditions, were more concerning. These in a psychiatric sense are personality traits and things of that nature. Dr Tomkins diagnosed Mr F as suffering from what was described as a narcissistic personality disorder and an obsessive compulsive disorder which were superimposed on the axis one condition, namely the depression. Axis one conditions are generally regarded as mental illnesses and are more readily treatable.
He said that in his view the mental illness that Mr F was suffering from was depression but that it had never reached a psychotic stage, that is, it had never reached a stage where Mr F was so mentally ill that he had become divorced from reality. However, as far as the prognosis was concerned, Dr Tomkins said it was difficult to get away from 15 years of depression and at least in the period since the parties separated, two episodes of very serious suicidal ideation. These were matters of concern.
However he said that he was guardedly optimistic about Mr F's future. He reached this view that he was guardedly optimistic for a variety of reasons. He said that Mr F had a good work record. He said he was willing to form therapeutic alliances and there was no evidence that he had ever been non-compliant with his medication. He also thought that Mr F empathised closely with his children.
In this case, there has been a variety of material that has been submitted to me which is highly personal in nature, which Mr F has written during the time he has been unwell. Dr Tomkins has read that material.
In Dr Tomkins' view such material was better “out than in” or expressed rather than internalised. Dr Tomkins took some comfort from the fact that Mr F did express himself in such great length about how he was feeling. He was not concerned about these writings.
It is true that the evidence indicates that Mr F is drinking too much and that this of itself is not a good thing. However, in my view although there is always the potential for his condition to deteriorate, there is no evidence at this juncture that his condition has in fact, so deteriorated.
Mr McQuade says: “well, if the case is adjourned that in itself has the potential to cause such deterioration”. I must look at that issue against the history of the matter to date. The orders were made on 31 October 2001. There is no evidence that the children have come to any harm during contact periods with their father since that time. There is no evidence that the children do not enjoy that contact and do not get benefit from it. To her very great credit Mrs F said that the children seem to enjoy their contact and wanted to see their father.
Although the evidence does seem to indicate that Mr F is drinking too much and is smoking cannabis, it does not, in my view, indicate that at this stage his mental condition has deteriorated or on balance that it is likely to deteriorate significantly in the period of the adjournment. It is not the case that this man fails to take his medication. Dr Tomkins told me that that is not always the case with other people who unfortunately suffer mental illnesses. He is continuing to see Dr Fraser, who is his primary clinician and he is also willing to give an undertaking to see Dr Tomkins, who has been involved in his care and has provided his opinion to the Court.
Dr Tomkins in his evidence says that it is imperative that Mr F continue to see Dr Fraser and desirable that he sees Dr Tomkins. In my view, there is no evidence at this stage which indicates that it would be in the children's best interest to impose the condition that the wife seeks. All sorts of conditions may be said to be prudent in the best of all possible worlds – I did not take it that the absence of supervision that in Dr Tomkins’ view that this would necessarily expose these children to any harm.
The issue is that, no doubt, supervision would prevent or at least alleviate the children being exposed to perhaps every conceivable adverse event that might happen during contact or at least most of them. But does this benefit outweigh the potential problems that may be caused by it.
Mrs F, the husband's mother, gave evidence yesterday. Her evidence was that she is at home most of the time anyway. I thought she was a sensible woman. Her son takes the girls out from time to time. She found that to be a good thing. However, she will be in the wings during contact. As I say, at this stage, the potential for the husband's condition to deteriorate, will always exist. This sadly, probably is the nature of his illness. Anyway I hope that this is not the case. But there is always the potential that, from what Dr Tomkins tells me, for there to be set backs.
In my view, it is not appropriate, at this stage, to impose the condition that is sought. Mr F did give an indication through his counsel that he would be prepared to give an undertaking, or abide by a condition that he would continue to seek medical treatment from Dr Tomkins if it was thought to be appropriate. As I say, Dr Tomkins thought that desirable. He also said that he would refrain from consuming alcohol and cannabis during the period of contact and for a period prior. Mr McQuade says, well, that is really neither here nor there because the evil is the potentially detrimental affect on the medication of it not being taken up properly during the period when he is drinking.
However, in my view there is no evidence that, at this stage, that this man's medication has been compromised but I will make a condition regarding alcohol during the period of contact. The evidence has been that the husband only drinks, he says, two stubbies of beer when the girls are with him and I also note that Mrs F in her evidence said that in her view she had never seen the husband affected by alcohol. So for all these reasons I will make orders as follows:
1)that it be a condition of the husband's contact as set out in order 5 of the orders of 31 October 2001;
a)that he refrain from consuming alcohol and ingesting cannabis during any period of contact and for 8 hours prior to such contact;
b)that he continue, during the adjournment of this matter, to seek medical treatment from Dr Tomkins and Dr Fraser.
At this stage, I will adjourn this matter, part heard for further hearing to 26 April 2002 at 10 o'clock, but I will give liberty to the parties to apply to change the date if it is not convenient to Dr Fraser.
All right, well, I will give the parties liberty to apply generally during that period of the adjournment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: