GILLMAN & TAGGART - [2012] FMCAfam 1226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GILLMAN & TAGGART

[2012] FMCAfam 1226

FAMILY LAW – Children – Father seeking to spend time and communicate with child – Mother opposes application – telephone time only ordered – Father permitted to forward presents to the child – in the child’s best interests for no time to be ordered by the Court between the Father and the child.

Family Law Act 1975; s.60CC

Applicant:

MR GILLMAN

Respondent:

MS TAGGART

File Number:

BRC 1463 of 2007

Judgment of:

Baumann FM

Hearing date:

18 October 2012

Date of Last Submission:

18 October 2012

Delivered at:

Brisbane

Delivered on:

29 October 2012

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondent:

Ms Moloney

Solicitors for the Respondent:

Jones Mitchell Lawyers

Solicitor for the Independent Children’s Lawyer:

Ms Fox

Solicitors for the Independent Children’s Lawyer:

Barbara Fox Solicitor

ORDERS

The child [X] born [in] 2001 live with the Mother.
The Mother have sole parental responsibility for the child.
The child spend time and communicate with the Father at all times as agreed between the Mother and the Father (or as requested by the child) but failing agreement:-
(a)by telephone on the first Wednesday and third Wednesday of each month between 6.00pm and 7.00pm with the Father to facilitate the call to the child’s prepaid mobile phone, provided by the Father under order 5.
(b)By correspondence once per month with the Mother to:-
(i)arrange for a suitable postal address within forty-eight (48) hours of the date of order; and
(ii)ensure that all correspondence is passed on to the child.
The Father be permitted to forward presents and cards to the child for the child’s birthday and Christmas to the postal address provided for in order 3 and the Mother is to ensure that the presents and cards are passed on to the child.
For the purpose of the telephone communication as set out in order 3(a), the Father is to provide a prepaid mobile telephone to the child and the Mother is to ensure that the telephone is switched on and charged at all relevant times.
The Mother notify the Father immediately by email to the Father’s email address: [omitted], should the child require any urgent medical treatment of a life threatening nature.
The Mother forward by way of email a copy of the child’s school progress reports and details of any extra curricular awards or certificates with details of identifying the school removed.
The Father not attend upon the child’s school without the written consent of the Mother or the invitation of the child.
The Mother not discuss these proceedings to or in the presence of the child and use her best endeavours to ensure that no third party discuss these proceedings to or in the presence of the child.
The Mother not denigrate the Father to or in the presence of the child and use her best endeavours to ensure that no third party denigrate the Father to or in the presence of the child.
Pursuant to s.64B(2)(g) and (h) of the Family Law Act 1975 the Father not make any application for variation of any aspect of these orders without first seeking permission of the Court to do so, and that such application be heard in chambers as follows:-
(a)in the first instance by Federal Magistrate Baumann;
(b)be facilitated by the Father forwarding a written application to the Associate to Federal Magistrate Baumann, specifying with particularity, the orders sought, together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such application to proceed;
(c)evidence of the attempts the Father has made to pay costs ordered and assessed at $6,139.50 together with a short statement of his current financial circumstances;
(d)unless otherwise ordered by the Court, such application is not to be served on any other party; and
(e)the Court shall thereafter deliver a short-form written reasons for its decision with respect to permission to bring such application.
The Mother shall be at liberty to take the child out of the Commonwealth of Australia for holidays from time to time notwithstanding the fact that the consent of the Father has not be obtained.
In order to give effect to the provisions of order 11 of these orders, the Mother and the Father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the Mother travelling overseas and returning to the Commonwealth of Australia with the child, including, but not limited to, signing an Australian passport application and/or an Australian passport renewal/extension application and any other necessary visa/other travel documentation for the child.
That:-
(a)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within seven (7) days of being requested to do so.
(b)In the event that a party refuses or neglects to sign or execute and return a document within seven (7) days of presentation to them or a lawyer representing them then pursuant to section 106A of the Family Law Act 1975 the Registrar of the Brisbane Registry of the Federal Magistrates Court of Australia or any Deputy Registrar from time to time is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such documents and an affidavit of a lawyer on behalf of the requesting party as to the said neglect or refusal.
(c)The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable form the defaulting party by the other party as a debt.
(d)An affidavit by the lawyer acting for the non-defaulting party or an affidavit of the non-defaulting party shall be sufficient proof of the other party’s default.

IT IS NOTED that publication of this judgment under the pseudonym Gillman & Taggart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 1463 of 2007

MR GILLMAN

Applicant

And

MS TAGGART

Respondent

REASONS FOR JUDGMENT

(settled from extempore reasons)

Introduction

This is a sad case. Sad because the child, an only child of the relationship, [X], has spent little time with his father since 2005. The reasons for that situation are known to the parties and are briefly touched upon in these reasons. The proceedings ultimately concluded with a trial in this Court on 18 October 2012. It is to be noted that the parties separated in June 2003. The history of the proceedings is, I am satisfied, accurately set out in the chronology of the mother annexed to the case outline and which will be annexed to these reasons as appendix 1 attached.
Suffice to say, however, that regrettably, [X] has, in the last seven years, spent only three supervised visits for a short period of hours on each visit with the father, namely 25 May 2011, 25 January 2012 and 16 April 2012. The essential issue for the Court to decide is whether the Court should order that the child spend physical time with the father. Such an order, as proposed by the father, is opposed by both the mother and the independent children’s lawyer, Ms Fox. I should, at this stage of the reasons, identify that the father, for nearly all of the proceedings and certainly in the trial, was unrepresented.
His capacity to represent himself, however, marks a significant improvement in his functioning from that which existed some years ago. He was, however, at a disadvantage to the extent that he did not have legal representation, although Mr Galloway for the mother and Mr Hodges for the independent children’s lawyer, I felt, sensitively and properly accommodated the father’s needs as a self-represented litigant.

Competing proposals

The competing proposals are set out in the material filed in the Court.
The father seeks an order, set out in his application in a case, filed shortly before the trial, that [X] spend time with him from 8 am Saturday to 5 pm Sunday each alternate week and each alternate Thursday overnight. The mother and independent children’s lawyer’s orders were very similar and did not seek any prescribed order that the child spend time with the father. It was not in dispute, from the father’s evidence, that the mother should have sole parental responsibility. A number of specific issues orders were agreed to by the parties and find their way into the final order I make.

Statutory framework

It is appropriate to deal with two significant and determinative issues in these proceedings, which I do now below.

Father’s mental health

As history reveals, there was a hiatus in being able to progress time for [X] to spend time with the father whilst the father took responsibility for doing the best he could to get better. I acknowledge the father presents in Court and on medical review, much more positively and settled than he did all those years ago.
His psychotic outburst in Court on 27 April 2007 are set out in the words in the mother’s affidavit at paragraph 25 accurately. That encounter speaks for itself. Shortly thereafter, with the engagement of the independent children’s lawyer, Dr V prepared an initial report. I deal with those aspects shortly. As the history attached reveals, when the Court ordered that further psychiatric examination take place some four years later, Dr V, a consultant psychiatrist, prepared a report dated 17 March 2011 and that report and the opinions expressed by Dr V were the catalyst for these further proceedings.
In circumstances where no final orders had been made, in effect, Dr V, as I say, had prepared a report on the father in February 2008 and opined that the father:
“...suffers from schizophrenia of a paranoid type, he is quite ill at the moment and in need of treatment, for he has little insight into how ill he is and declined my suggestions for treatment. At the present time, I consider he needs inpatient treatment or assertive community treatment of his schizophrenia. The most important aspect is that he agrees to take anti-psychotic drugs on a regular basis. An involuntary treatment order may be required if he does not agree to treatment.”
Dr V, at that time, made the following recommendations:
“Given his current mental state, it is difficult to see how he could be in charge of a child and moreover, it would also be difficult to see how supervised contact can be possible. Given his current mental state, it is difficult to see how he could possibly represent himself in court, as he intends to do. Once Mr Gillman has had appropriate treatment for his schizophrenia and there has been improvement in his condition, it may well be the case that he will be well enough to enjoy contact with his son, initially on a supervised basis and subsequently, unsupervised. Much depends on response to treatment and subsequent adherence to treatment. A review of his psychiatric status, including from any treating doctors, would be essential before issues of contact can be progressed.”
The updated report of Dr V was filed 21 March 2011. I should note that Dr V was not required for cross-examination, nor was the father’s treating psychiatrist, Dr L, although I have read and considered Dr L’s reports, tendered as exhibit 2. The father’s last visit to Dr L was approximately April 2011. The father sees his general practitioner,

Dr C, for the purpose of him prescribing his anti-psychotic medication and other medical needs. In his most recent report, Dr V came to the following conclusions:
“1.Based on my recent interview with Mr Gillman and the medical state examination, I concur with Dr L that Mr Gillman is in remission from schizophrenia in the sense that there do not seem to be any current psychotic symptoms. The mental state is remarkably different compared to when I last saw him.
2.Please note, however, that this does not mean that Mr Gillman no longer has schizophrenia. He continues to suffer from this disorder but the psychotic symptoms have responded to anti-psychotic medication. His overall functioning and indeed the mental state indicates that there are ongoing so called “negative symptoms” of schizophrenia impacting on his function.
3.Mr Gillman will almost certainly have a relapse of psychosis if he were to cease his medication. A relapse of psychosis is likely to occur within the first six months of ceasing medication.
4.Mr Gillman has limited insight into his illness. This is not uncommon in schizophrenia and ought not necessarily be an issue, as long as he keeps taking his medication. Insight will, of course, encourage adherence to the medication requirements.
5.I am concerned that Mr Gillman’s use of anti-psychotic medication from his account seems a bit erratic. He is unable to tell me the dosage and of more concern, he appears to be taking it on an as needs basis, rather than in a consistent manner. Medication for schizophrenia needs to be taken in a consistent manner, although increasing doses at certain times according to need is acceptable if there is appropriate education as to the circumstances in which this occurs.
6.Mr Gillman’s account to me and indeed, the report from Dr L, does not make clear how often he is seeing Dr L for a review of mental state and medication.”
I stop there to note that it was approximately one month after the report was filed that the father had his last visit with Dr L. In cross-examination, the father indicated that he had tried to make appointments with Dr L but that Dr L was apparently too busy to see him or unable to make an appointment convenient to the father. The report of Dr V made the following recommendations, which he hoped would be useful, namely:
“I.I agree with Dr L that given Mr Gillman’s improvement and his current mental state, it would be appropriate for him to begin reconnecting with his son if this is considered to be in the best interests of the child.
II.I would strongly suggest that a child psychologist or social worker be appointed, so as to ascertain the child’s views and to prepare the child for meeting with the father. It would be important to ascertain what the child’s understanding is as to why he has not seen the father and what his expectations are.
III.If there is to be a meeting, then the first few times this occurs could be facilitated by the same social worker or child psychologist. If these meetings go well, then I would recommend that Mr Gillman has supervised contact at the contact centre in the first instance. I would be inclined to progress the matter cautiously.
IV.I note that Mr Gillman suggests that his grandparents may be able to supervise meetings at their home. Before this happens, it would be important for the social worker/child psychologist to interview the grandparents to ascertain the extent to which they understand the issues and their responsibilities.
V.While the supervised contact is continuing, it would be important to ascertain from Dr L and Mr Gillman how often he is going to be reviewed, either by Dr L or the general practitioner and that the treatment requirements with medication are set down clearly and unequivocably. Dr L, as a general practitioner, should undertake to inform the independent children’s lawyer if there is any indication of relapse of the psychosis or non-adherence to medication.
VI.If there is any doubt about Mr Gillman’s adherence to medication, then random urine testing may be useful.”
Overall, Dr V said that he acknowledged that he had perhaps “taken an overly cautious approach”. The father’s use and maintenance of medication is concerning. The Medicare records are unclear as to whether the father actually fills sufficient prescribed medication scripts as required to maintain daily use. He swears that he does so. Previously, the father has not always complied with his treatment and medication regime. It follows that the father is, provided he maintains treatment and medication, at the best functioning level he has been for some time – although as his history shows, he is still vulnerable. He relies on disability and support pension. Regrettably, for this still relatively young man, that is likely to now be a lifelong support he will require.
It does not seem, from the evidence available to the Court, that the father’s grandparents are either able or willing to assist with any supervision in the future. The evidence of the father is that the home that he occupies with his grandparents may soon be sold and that, as a result, it is not clear where he will be living into the future. I have no doubt, from the evidence he gave, that his family are supportive of him and will provide him with whatever physical and financial support they reasonably can.

[X]’s wishes

Whilst the father has been dealing with his challenges, [X] has, of course, continued to develop. [X] was born [in] 2000 and therefore is now eleven and a half years of age. The mother re-partnered some years ago and her partner is called Dad by [X], which is quite understandable in all the circumstances. She has, I am satisfied, passed on to the child presents and gifts provided by the father. [X] calls his father “[first name omitted]”.
The section 65L intervention which I ordered after the report from

Dr V was conducted by family consultant Ms B. Her brief report gave some hint of forward momentum at that time. The last visit occurred on 25 May 2011. During that visit supervised by Ms B, discussions created a fear, it would seem, in the mother, the father might have uncovered where she lived and/or where the child went to school. After the visit on 25 March the mother acknowledges that she told [X] he could no longer ride his bike to school. The child’s alarm must have been activated by these comments (see paragraph 19).
Taking up Ms B’s suggestion, the ICL and the parties engaged Mr N as a treating psychologist, to assist in the further unification, hopefully, of the child and the father. Regrettably – and no blame can be attributed to the parties – a gap of over eight months transpired before the father and [X] then met again, supervised by Mr N. That visit took place on 25 January 2012. There was nearly a further three months gap before a second visit took place on 16 April 2012, but the scheduled visit on 30 April was cancelled. This was, it seems, with the support of Mr N as his report makes clear.
The impact on his visits on [X] and his wishes, are set out at paragraphs 6 to 11 of the report of Mr N, filed 10 July 2012, which I will recite as follows.
“6.[X] was a very easy to engage boy. He seemed to be of at least average intelligence. He is active in extracurricular activities, being involved formerly in both [omitted]. He is reported as doing well at school. He was able to express his opinions and thoughts in a clear and articulate and importantly, age appropriate manner.
7.[X] was consistently clear that he did not wish to have contact with Mr Gillman. He said and indicated that this was largely as he felt uncomfortable (“weird”) spending time with Mr Gillman. [X] stated his position to me and also Mr Gillman at sessions on 25 January 2012 and 16 April 2012.
8.During all contact, Mr Gillman seemed to try very hard to connect with [X]. He was at times overbearing for [X], but was already describing and presenting as very uncomfortable, having contact with Mr Gillman. Mr Gillman did follow my instructions regarding appropriate conversational topics (regarding confidentiality issues regarding [X]’s living and social environment) and considering the suggestions regarding the depth of conversation he pursued.
9.Ms Taggart reported to me on 30 April 2012 that [X] was refusing to attend the scheduled contact.
10.It did seem to me that while Ms Taggart was uncomfortable with Mr Gillman and displayed some fear of being in a close proximity, that she was genuinely supportive of the court ordered contact occurring.
11.[X] stated on numerous occasions that Ms Taggart was supportive of him seeing Mr Gillman but that it was his own opinion that he did not want to. Therefore, it is my opinion that currently [X] does not want to have contact with his father, Mr Gillman, and that this is his own opinion.”

Mr N was not required for cross-examination.
In short, the child now appears to express a clear view that he does not wish to spend time with his father. In this case, and with this history, I am satisfied some significant weight needs to be applied to these expressed wishes.

Primary and additional considerations

I begin this brief analysis by recording the father’s well articulated reasons for seeking time with his son, [X] – a child who I have no doubt he desperately loves and misses.
At paragraphs 25 to 27 of his trial affidavit, filed with my leave on 18 October 2012, he says:
“25.I understand [X] is now 11 years old, well mannered and he is in his sixth year at primary school. He has stated that he enjoys [activities omitted]. These are also things that I myself are involved in and that we share a common bond or interest and at contact sessions this was a main and active topic discussed. He is very confident and has established his own opinions and thoughts and expresses them accordingly.
26.It is of recommendation that we both feel comfortable in seeing each other and a meaningful and stable growth in our relationship that is based upon a well structured plan for contact that has flexibility and is not dictated by outside pressures or interference. I anticipate [X] having a more significant and prevailing role in this relationship and will assert himself accurately given the chance. It is in my best interests to make [X]’s happiness and the welfare while nurturing his young character with the appropriate sensitivity and love only a father can give.
27.It is comprehensively beneficial that both parents feature in [X]’s life and to be estranged from such rights would be detrimental to the capacity of a close and continuous relationship. Any proposal must purely have a progressive and convalescent consequence to influence [X] at this juncture in his life. I display the right methodology to suitably manage and support the responsibilities that caring for a child requires on a permanent basis. The parenting order I require is as follows:
a)that the child [X] spend time with the father on a regular and permanent basis.
b)that the child [X] spend each alternate Saturday and Sunday with the father. 8 am Saturday to 5 pm Sunday whilst he also spend each alternate Thursday night with his father (after school until school starts the following day). I have appropriate accommodation that includes [X] have his own room and he will also have grandparents that live at the same address that would benefit from the parenting orders be made.”
I can not help but be saddened by the sense of loss that the father expresses in his paragraph in that way. It is, of course, a primary consideration that the court must consider the benefit to a child of having a meaningful relationship with a parent. I accept as an object and principle under the Act that trying to establish a meaningful relationship between the father and the child – such relationship not currently existing in my view on the evidence – is a heavy consideration.
There are risks associated with the father having unsupervised time to the child at this stage as set out from the history of psychiatric illness and the ongoing schizophrenia which he continues to have as a challenge for him.
I have taken into consideration the significant wishes which the child gives evidence of through Mr N and also through Ms B. I made the observations of the father in submissions, where he said that I should not regard the child’s expressed wishes of not seeing him, as being necessarily his own wishes, that the father himself says at paragraph 25 of his affidavit that his son:
“Is very confident and has established his own opinion and thoughts and expresses them accordingly.”
It may be open to suggestion that the father is happy to accept the child has a wish consistent with his which is true, but inconsistent with his which is not true. I can understand how painful it may be for the father to feel that is the case.
It is clear that the child has a primary relationship with his mother and I infer the mother’s partner who has been a member of the mother’s household for many years. On all the evidence, whatever relationship may have existed between the eleven and a half year old boy and his father at the time that the parties separated in 2003 (when the child was two years of age), has all but extinguished by now to nothing more than a mere curiosity, it seems, for the child - shaped and clouded in feelings of risk, uncomfortableness and concern as is expressed from time to time.
It seems that both parties live within the Gold Coast region and there are therefore no real practical difficulties in effecting time if it was ordered. Certainly, it seems to me, that the mother has demonstrated over the years the matter has been in my docket, which is now close to seven years, that she has consistently sought to provide support for the court’s orders that the child be given an opportunity to engage with his father. The father may not accept this, but I do.
One of the effects of change for [X] if orders for any time was to occur would be, it seems to me, the effect on the mother. I saw her give evidence. There is nothing in her evidence that would suggest to me that she is not as she presents; a caring, loving, sensitive mother who has in difficult circumstances, sought to manage a young boy though his growth period from two to 11 without his biological father being a constant member of his life. She has done so, it seems to me, without overtly denigrating the father even though the events leading up to the separation (which I acknowledge were within the context the father suffering paranoid schizophrenia traits) must have been particularly concerning and fearful.
I have no doubts about the mother’s capacity or attitude to parenting being of the highest quality. The father has had little opportunity to demonstrate his capacity to parent over the last few years because of the limited time he has spent with the child. I am prepared to accept he presents more positively now than he did in 2007, but there are still concerns about his capacity that would not encourage the Court, if it were minded to order time, to order time more than supervised time.
It is clear the court must consider whether there are orders that the Court could make which are less likely to lead to further proceedings. In this regard, the mother sought an order that the father effectively be declared a vexatious litigant. I reviewed the history of his proceedings in this case; I not regard him as fitting within the category of a vexatious litigant. However, it would seem to me that the mother should not be put to more expense than she already has, having the benefit of costs orders now amounting to some $6000, by responding to any new applications by the father until the father has, effectively, demonstrated to the Court some real basis for proceeding with a new application.
The independent children’s lawyer thought likewise and I have proposed to make an order styled upon the independent children’s lawyer’s proposal, together with a requirement for the father, at any time that he seeks leave to proceed, to demonstrate what steps he has taken to seek to repay to the mother the amount of costs that have been ordered against him for a numerous number of proceedings, mostly contravention, he has bought and have either been dismissed or withdrawn, as well as his current financial circumstance at the time that he makes such an application.

Conclusion

The father accepted, sensibly, in my view, that the mother should have sole parental responsibility. She has been making decisions for this child quite effectively for most of his life and should be able to do so in the future. I agree with the father’s position and intend to make such an order. As a result of that order, it’s not necessary for the Court to consider equal time or significant and substantial time; none of the proposals, other than the father’s, would have come within that descriptor in any event. It is not in the best interests of the child for the child to spend equal time or substantial and significant time with the father.
The Court has, since at least 2007, tried to assist the father as best it can, sometimes in very difficult circumstances. It was the intention of the Court to keep alive a hope for him that one day, he would spend time with his son and that was a realistic expectation, depending on how long his recovery took. [X] was pre-school when his time ceased. Events have moved on, although the father’s mental health has improved at this stage of the child, [X]’s, life. It is not, in my view, in his best interests to order he spend prescribed time with his father.
I have come to this fairly obvious conclusion reluctantly, as I have the view that the father has tried really hard to comply with past orders; has been extremely patient; has undertaken treatment and has been, to a large degree, motivated by his long-term hope that he and his son will be reunited. However, the test is not what might be a fair reward to a father with paranoid schizophrenia who has worked hard to moderate his behaviour. The test is what is in the best interests of the child. Time with the child is not an absolute, it is a goal that cannot, in every case, be achieved. This, regrettably, is one of those cases.
The father and [X] reuniting may well occur in the future, when [X], as an adult, may seek out his father and seek to pursue a relationship with him. The orders I make even allow, as he gets older, the prospect of that occurring with regular telephone contact available. It may well be that the father sees no benefit in continuing to ring. It may well be that the father finds the time less than meaningful if the child does not wish to speak to him. At least the opportunity will be provided. My fervent hope is that the likely disappointment of this result for the father will not plunge him into a downward spiral of behaviour.
He has worked so hard to recover some of his functioning that it would be sad to see him go the way he was all those years ago. He could well do with some supportive therapy to assist him at this time and I would give leave to him to produce a copy of these reasons to any therapist, to give a context for how, no doubt, disappointed and sad he feels. The order which I propose to make takes into account the preferred positions of the independent children’s lawyer and mother and is shaped by the exchanges during final submissions from Mr Galloway and Mr Hodges.
I regard the order which I publish today as in [X]’s best interests at this time and on the evidence before the Court.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Baumann FM.

Date: 13 November 2012

APPENDIX ONE
[OMITTED]