Harrell and Hancock-Harrell (No 2)

[2015] FamCA 406

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL (NO 2) [2015] FamCA 406

FAMILY LAW – CHILDREN – Interim – Best Interests – Parental Responsibility – Where the father suffers from obsessive compulsive disorder – where it is found that the child is at an unacceptable risk of emotional and/or physical harm if he spends unsupervised time with the father for the immediately foreseeable future – father to spend supervised time with the child at a contact centre – mother shall have sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrell

RESPONDENT: Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER: Judy Stewart

FILE NUMBER: BRC 1164 of 2014

DATE DELIVERED: 29 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 May 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Galbraith of Counsel

SOLICITOR FOR THE RESPONDENT: Schultz Toomey O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stewart

Stewart Family Law

Orders

IT IS ORDERED

1. That all previous parenting orders are discharged.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the child, C born … 2011, (“the child”) live with the mother.

2. That the mother has sole parental responsibility for the said child.

3. That commencing on the first weekend that D Org, E Town can accommodate this family after appropriate intake procedures have been completed, the said child shall spend two (2) hours each alternate weekend with the father, supervised by staff at D Org, E Town at such times as are arranged between D Org, E Town and the parents of the said child.

4. That the mother shall ensure that the said child is delivered to and collected from D Org, E Town at the times directed by the staff of D Org, E Town at the commencement and the conclusion of the time the child is to spend with his father pursuant to paragraph (4) hereof.

5. That any costs charged by D Org, E Town for the service provided by that centre shall be met in equal shares by the parties.

6. That to the extent they may not have already done so, within forty-eight (48) hours the mother and the father shall make all enquiries and do all things necessary to undertake the intake process with D Org, E Town so as to put arrangements in place for the said child’s time with his father to commence as soon as can be accommodated by D Org, E Town.

7. That each of the mother and the father is restrained from communicating with the other parent, save that the mother shall be at liberty, at her discretion, to inform the father of any emergency affecting the child.

8. That each of the parents shall attend as directed in writing by the Independent Children’s Lawyer, all interviews for the purposes of the preparation of any further family reports or psychiatric assessments that may be commissioned by the Independent Children’s Lawyer.

9. That the father is restrained from communicating with the mother’s legal representative and/or the Independent Children’s Lawyer, except for the purposes of service of court documents and the exchange of written correspondence that goes solely to the conduct of the proceedings that are currently pending in this Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. On Tuesday 12 May 2015, I heard and determined an application brought by the father in this matter for the mother and others to be dealt with for alleged contraventions of parenting orders previously made in respect of the child, the C who was born in 2011.  All of the alleged contraventions were either dismissed by me or withdrawn by the applicant father before they were dismissed.

2. At the conclusion of that hearing, I was then required to hear a further Application in a Case brought by the father in which he sought a recovery order and further parenting orders that 3 year old the child live with him and spend supervised time with his mother.

3. At the same time, the mother sought parenting orders that the child continue to live with her and only spend supervised time with the father until further order.

4. The Independent Children’s Lawyer, relying on expert evidence from Dr F, a psychiatrist, and Ms G, a psychologist/family report writer, also proposed that interim orders be made that the child continue to live with the mother and only spend supervised time with the father.

5. Having considered the evidence, I have determined that the appropriate interim orders to make, having regard to the paramountcy of the little boy’s best interests, are in accord with the positions advanced by the ICL and the mother.

6. There is no doubt that the father dearly loves his little boy and wants to be a meaningful part of the boy’s life. However, the father’s obsessive compulsive disorder, that he has suffered from for some time, appears, in my judgment, to have contributed greatly to the breakdown of his relationship with the mother and to the high conflict that has emerged between them in respect to their co-parenting relationship in the relatively short period of time since separation. I consider the evidence supports a finding that the impact of the disorder upon the father is currently such as to give rise to an unacceptable risk of emotional and/or physical harm to the little boy if he was to spend unsupervised time with the father for the immediately foreseeable future. Should the father seek out and obtain continued medical and psychotherapeutic treatment as recommended by Dr F, it is hoped that his health might improve or be managed to such an extent that the circumstances under which his little boy spends time with him may be able to be changed. That will be further examined at the trial of this matter, whenever that might be.

Some Background

1. The father was born in 1965 and is now 50 years of age. The mother was born in 1969 and is now 45 years old. The parents made acquaintance through a dating website on the internet and commenced cohabitation in February 2008. They married later that same year. Nearly three years later their only child, C, was born.

2. After almost six years of living together, the couple separated on a final basis on 5 December 2013.  The child was just 2 years old at that time. Following separation, the mother moved into her parents’ home in the hinterland of the Region L with the child and they have lived there ever since that time.  The father lives by himself in a rental home at Suburb H in Brisbane’s north.

3. On 10 February 2014, the father commenced parenting proceedings in the Federal Circuit Court. There, he sought orders that he and the mother share equally parental responsibility for the child. He also sought orders that the child live with the mother during the week and live with him over the weekend. At the same time, the father also filed a Notice of Child Abuse in which he alleged that the mother perpetrated abuse towards the child. He also alleged that there had been various incidents of violence between the mother and the father. Just over a month later, the father filed another Notice of Child Abuse in which he raised further allegations including, most particularly, allegations that there were illegal firearms held at the maternal grandparents’ home where the child was living and that they were not properly stored there, thus presenting a danger to the child.

4. The matter first came before Judge Baumann on 28 March 2014. His Honour made interim Orders that the child live with his mother and spend time with his father on specific occasions with this time to gradually increase to daytime contact each Sunday supervised by one of a number of people named in the Order. The father later, out of time, sought to appeal against Judge Baumann’s Orders but was denied the extension of time necessary for him to do so by the Full Court. Around this same time, in the parenting proceedings in the Federal Circuit Court (“FCC”), an order was made for the appointment of an Independent Children’s Lawyer to represent the child’s interests.

5. At some point in the post-separation period, the mother had obtained a protection order against the father from a Queensland Magistrates Court under state family violence legislation. There is no dispute that in July 2014, the father was arrested and charged with breaches of that protection order. The hearing of those charges was listed for early December 2014.

6. On 19 August 2014, the parties appeared before Judge Lapthorn in the FCC and allegations of abuse and family violence were raised by both the mother and the father. The father sought orders increasing his time with the child and orders were made that did that. Judge Lapthorn’s Orders provided for the child to live with the mother and to spend time with the father from 10am Saturday to 4pm Sunday each alternate weekend. Interestingly though, Judge Lapthorn also made a Recovery Order, but determined that it lie in the registry to be activated in the event that the father failed to return the child to the mother at the end of his weekend time with him. The parties were also restrained from communicating other than for the purpose of making arrangements for the child and in respect of any emergency relating to the child. The child then began spending overnight time with his father pursuant to those Orders.

7. Notwithstanding the Orders about communication just referred to, the father however, continued to send emails and texts to the mother. Their content was at times angry, abusive and laden with profanities. Unhappy with that content, the mother complained to police and the father was arrested and charged afresh with the offence of breaching the state protection order. The father once again obtained bail and that matter too was adjourned for later hearing.

8. In early December 2014, the fresh charge against the father of breaching the protection order was mentioned in the Suburb I Magistrates Court and was adjourned to February 2015. The father was granted bail, but on conditions, including that the father only contact the mother by email if an emergency crisis arises whilst the child is in his care.

9. A few days later in December, the father’s trial on the earlier charges of breaching the family violence protection order commenced but it was again adjourned part-heard.

10. In mid-December 2014, the father filed the contravention application that I have now dealt with and the application for a Recovery Order currently being considered. In January 2015, the family report of psychologist, Ms G, was filed.

11. On 2 February 2015, the father was charged yet again with another breach of the protection order as well as breaching his bail conditions as a consequence of sending an abusive email to the mother during a weekend that the child was with him because the mother had not sent some parts of a toy with the child on that weekend.

12. On 3 February 2015, the father applied to the Suburb I Magistrates Court to revoke the family violence order that protected the mother at the same time that the fresh charges were mentioned in that Court.  The father was refused bail and remanded in custody. He spent several weeks in prison thereafter as a consequence.

13. The parenting proceedings were before Lapthorn again on 12 February 2015, but on the day, the judge was informed by the mother that the father was in prison having been denied bail upon his further charges.  The Court’s attempts to contact the father that day were unsuccessful.  Orders were made to suspend the contact between the father and child until further order and the matter was transferred to this Court. The Judge also made an order restraining the father from contacting the mother’s legal representatives or the ICL, save for the purpose of serving court documents and the exchange of correspondence solely addressing the conduct of the litigation.

14. When he made his orders, Judge Lapthorn had the benefit of a psychiatric report prepared by consultant psychiatrist, Dr F, that had been filed the day before the hearing before him, as well as the family report by Ms G.

15. The father was released from prison on or around 16 March 2015. He again sought an extension of the time within which to file an appeal against Judge Lapthorn’s orders. That application was refused by the Full Court a short period of time before the matter was listed for hearing by me on 12 May.

16. Given the existing suspension of orders providing for the child to spend time with the father, the hearing of the parties’ competing applications for interim parenting orders to be determined was a necessity.

The Competing Proposals of the Parties

1. The father sought orders from the Court that the child live with him and spend time with the mother for no less than two days per week between 9 am and 5 pm, supervised by a person holding a Queensland Blue Card agreed to by the father. The orders sought by the father include a requirement that the time the child spends with the mother is “to commence at Cam’s residence” and that he have no contact whatsoever with eight other named persons from the mother’s extended family and friendship network.

2. The mother sought orders that the child live with her, that she be granted sole parental responsibility for him and that he spend time with the father in the context of a supervised setting at a children’s contact centre. She proposed such a centre at J Town in Region L, but when met with quite vociferous opposition to that proposal by the father she quickly confirmed her willingness to travel with the child to the children’s contact centre located at E Town to accommodate his time with the father, albeit in the supervised setting of that centre.

3. The Independent Children’s Lawyer also submitted that the child continue to live with the mother, that the mother have sole parental responsibility for him and that he spend supervised time with the father at a children’s contact centre until further order.

The Issues

1. The father’s case is centrally built around the allegation that the mother and her family, with whom the child is currently living, present an unacceptable risk to the child’s safety and well-being, such that he should not continue to live with the mother. As I understood the father, who was unrepresented, he came to

   
   

   Court on 12 May, completely convinced that he would be totally successful in all of the contravention applications and that such success would prove that the mother was a risk to the child, in that she simply did not value and facilitate the child’s relationship with the father. Further, and, seemingly most importantly, the father maintained that the mother’s actions in respect of his allegations about the illegal possession and storage of firearms at the place where she and the child were living demonstrated her incapacity to provide a safe living environment for the child.

2. On the other hand, the mother’s position which was simultaneously the position of the ICL, was that the father’s apparent obsession with the issue of the firearms in circumstances where police and child welfare departmental officers had satisfied themselves that the firearms issue was in hand and, where the mother and her family had since taken steps to cause the firearms to be removed from the premises, was a symptom of a flare-up of his obsessive compulsive mental health disorder. As such, particularly given his inability to be able to reasonably control himself as demonstrated by his communications with the mother and her legal representatives, as well as his continued obsession with the issue of firearms, they submitted that the child would be exposed to an unacceptable risk to his well-being if he spends unsupervised time with the father at the moment.

The opinion evidence of the independent experts

1. The ICL, particularly, referred to and relied upon the reported expert opinion of Ms G and Dr F in support of the position advanced by her.

2. In the evaluation section of her first report, Ms G expressed the opinion that “it is possible that the father is unable to control himself when he feels compelled to act.” She said that as a prelude to noting that the father was “presently motivated to protect the child and seek justice.”

3. Ms G went on to say:

   There appeared sufficient cause to take a very cautious approach with regard to the child spending unsupervised time with the father prior to a thorough assessment of his admitted mental health issues.

   She also said:

   It is certainly possible that the father is unable to contain his behaviour and emotions (particularly anxiety in my assessment) to socially accepted norms at times of crisis especially. Despite his apparent intellectual capacity for insight it appears that the father is at times of stress unable to act with insightful behaviour to the detriment of himself and potentially others.

4. Having read some of the emails that were adduced into evidence that the father sent to the mother and to the mother’s young, female legal representatives, I am completely satisfied that Ms G’s opinion expressed there is correct.

5. Ms G also reported some worrying facts. She wrote that the father had told her that he habitually consumes moderate to high levels of alcohol on top of prescribed medication despite concurrent use being contraindicated and that he had told her that he has not consistently taken medication to treat his symptoms having experienced unhelpful reactions to previous medications. She also wrote that he had continued to blame the mother and other environmental triggers for his episodes of poor mental health.

6. Ms G opined that the history provided to her suggested that the father’s mental health has much potential to deteriorate at times of stress to a degree that it could unintentionally impact adversely on the child, given his very young age and dependent status.

7. Ms G, then aware that a psychiatric assessment of the parties had been booked, declined to recommend any specific parenting arrangements without the benefit of seeing that assessment first. She did say that a supervised or limited parenting schedule might be indicated to protect the best interests of the child if concerns regarding the father’s mental health appear warranted.

8. In his report, Dr F reflected that the father appears to hold fixed firm beliefs about firearms in the maternal grandparents’ home that could not be shifted despite suggestions otherwise, no matter what the mother and her family did. Dr F described the belief as “pathological in nature” with a “delusional-like quality” and he opined that “these morbid beliefs have arisen in the context of his underlying Obsessive Compulsive Disorder”, being secondary thereto rather than a true psychotic process.

9. The doctor observed that the father’s Obsessive Compulsive Disorder appears to have been chronic with ongoing symptoms that have minimally impacted upon his functioning generally. The doctor then said:

   My concern currently is that while his more classic obsessive compulsive symptoms may well be in significant remission, the obsessions have transferred to the Family Court process and the welfare of the child for which he is seeking reassurance from others about the safety due to his ongoing intrusive ruminations.

   … the father’s seeking of reassurance has become quite extreme and to the extent that he has come to the attention of forensic mental health services …

10. Dr F reported that the father denied that abuse of alcohol was an ongoing concern but admitted to continuing to drink alcohol “on a moderate level” which the doctor said was ill advised given the nature of his underlying psychiatric illness and the fact that it would be likely to counteract any benefits that pharmacological or psychological treatment may have for his disorder.

1. The doctor reported a view that the mother does not appear to suffer from a major mental illness and presented no concerns that she might be deprived of the capacity to make long term decisions with respect to the child.

2. He did express the opinion that for certain issues the father’s capacity to make decisions in the child’s best interests may be impaired by his morbid beliefs although not necessarily across all domains. He said that the father’s capacities would “be expected to be retained if the father was able to demonstrate significant improvement in his obsessive compulsive symptoms to a degree that it was not impairing his judgment with respect to the child”.

3. There was a strong recommendation for the father to continue to seek treatment with a psychiatrist and Dr F suggested the father continue to see one particular doctor who the father apparently had a good relationship with. The doctor also recommended a more aggressive pharmacological treatment of the father’s symptoms and recommended particular drugs and dosages. He also recommended the father undertake some “insight orientated psychotherapy” as it would be important for the father to protect the child from any anxieties he may have about the mother as failure to do so would be likely to cause emotional harm to the child in the long term.

4. Dr F concluded with the following:

   Given the nature of the father’s ongoing symptoms, I would have concerns that it is possible that the father may well expose the child to his negative views with respect to the child although there was nothing in the documentation to suggest this, and this may be better understood within the context of a family report which could obviously inform the Court about the risk to the child in unsupervised contact with the father.

   It would be my view that it would be prudent for the court to be informed by the father’s treating psychiatrist (if my recommendations with respect to treatment are accepted by the father) and that the fathers [sic] behaviour as well as continued assessment by his treating psychiatrist would inform the Court as to the progress of his treatment and as to whether the risk to the child would be such that more extended periods of unsupervised time with the father could be contemplated.

   It would also be an observation that the prospect of a co-parenting relationship would appear impractical unless there was a significant improvement in the father’s symptomatology and insight into his illness.

5. The ICL sent Dr F’s report to Ms G as well as evidence of the father’s ongoing “problematic” behaviour (such as his communications with the mother and the mother’s legal representatives) and asked for her consideration of these matters and expression of further opinion. Ms G then recommended “either a cessation of the father’s time with the child or professionally supervised and limited time until such time as it can be demonstrated that the father’s psychological symptoms have abated.” She recommended that the father have appropriate support of a suitably qualified psychiatrist and she recommended that the mother and her family take “appropriate measures to protect themselves against potential consequences of any decision” which did not accord with the father’s views.

The Hearing

1. At the hearing on 12 May, the father was intensely focused on his contravention application and told the Court that he was convinced that his views in respect of the matter were right and that he was going to be successful. He also informed the Court that the contrary view held by the Court in respect of the statutory interpretation point in the contravention proceedings was incorrect and that he would ultimately prove that in the High Court, if necessary.

2. Possessed of the opinion evidence of the family report writer and the psychiatrist, I was particularly worried by the father’s demonstrated determination to focus argument around the allegations that the mother and her  parents had illegally possessed and stored weapons for almost the entirety of the considerable time the father spent addressing the Court. The father’s submissions about this issue revolved around his belief that he could demonstrate that the mother and her family had been caught out lying about the matter which made his alleged “obsession” with the issue a justified stance. He maintained that this proved that the mother could not be trusted at all with the child’s safety.

3. Whilst the evidentiary matters the father took me to did appear, on some consideration, to suggest that there had been some inconsistent information given by the mother and her parents about the guns over a period of time, I became increasingly troubled about the father’s singular, unshifting focus on the issue, even months after the guns had been disposed of by the mother and her parents, a fact the father did not dispute or doubt. My sense of concern about this increased upon hearing that the father had never seen firearms at the mother’s parents’ home but rather had raised his allegations post-separation as a consequence of the mother having told him when they were still a happily married couple that her parents had a “snake gun” on their semi-rural property.

4. Whilst he focused on the issue of the guns, the father adduced no evidence about any ongoing treatment or renewal of treatment by a psychiatrist or a psychologist. There was also no evidence adduced by the father about any medication he was taking at the time. Of course, being unrepresented as he was, the father’s failure to adduce such important evidence is easily understood, but this absence of evidence really added to the serious concerns about the father’s current state of health the Court developed through the course of the day-long hearing of these matters on 12 May.

5. Adding to the Court’s concerns were the things the father said during the course of responding to matters raised about the written communications he had made to the mother for which he had been charged with breach of bail and the email letters he had written to the mother’s solicitors. The father quite unremorsefully argued justification for his actions and suggested that his communications had been misinterpreted and were wrongfully being used against him. There was though, in my view, having read the communications, no room for the misinterpretation argument the father was mounting. The lack of any apparent remorse, even in the face of the Court’s clear disapproval, displayed a seriously unhealthy lack of insight on the father’s part. Just as did the father’s unfortunate references to well- known names of children who have been the victims of family violence in this country in recent years.

Should the child spend time with the father?

1. Ms G’s first report included opinion based on her observations that the child had a loving attachment to his father as well as to his mother. She also expressed opinion about the benefits to the child of maintaining a relationship with both of his parents.

2. The mother’s own position that the child should spend time with the father, albeit in the confines of a supervised setting at a child contact centre, supports a view that she does support the ongoing relationship between the child and his father at this stage but is principally concerned about the emotional and physical safety of their little boy. On the evidence, I am satisfied that such concern is real and is rationally based in all of the circumstances. The mother’s willingness to readily change from a contact centre located at J Town to one located at E Town to accommodate the father when he simply baldly asserted that he could not drive to J Town was further evidence of her commitment in this regard.

3. I am quite satisfied that it is in the child’s best interests for him to continue to live with his mother, even whilst she continues to live with him at her parents’ home. I do not consider that she presents an unacceptable risk to the child and that her actions in causing the guns to be removed as she did were appropriate. I do not consider that the mother’s actions in respect of the guns disqualifies her from being the principal carer for the child until the trial of the parenting proceedings.  

4. I am also satisfied that it is in the child’s best interests to spend time with his father on a regular ongoing basis. However, just at the moment, the evidence I have seen persuades me that the child’s time with his father should be supervised in the professional setting of a children’s contact centre, the appropriate one being E Town, until the Court can be satisfied that the unacceptable risk currently posed by the father’s state of mental health no longer exists.

What of parental responsibility orders and the matters pertaining thereto or arising therefrom?

1. Section 61C of the Family Law Act 1975 (Cth) (“the Act”) says each of the parents of a child has parental responsibility for that child. If an order is not made otherwise dealing with parental responsibility that remains the case, but if an order dealing with parental responsibility is made by the Court that is inconsistent with each parent having parental responsibility for the child, the order prevails.

2. The mother and the ICL seek orders for the mother to have sole parental responsibility. The father did not agree with that course.

3. Section 61DA(1) of the Act requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child when making a parenting order in relation to that child. The presumption applies even when the Court is making an interim order unless the Court considers that it would not be appropriate in the circumstances (s 61DA(3)). The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence (s 61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

4. In making these determinations, the Court must be mindful of the legislative requirement that where parents equally share parental responsibility pursuant to a Court’s order, any decision about a major long-term issue in respect of that child must be made jointly by the parents after consultation and genuine effort to make a joint decision. Failing a joint decision being made, no decision can be made without further order of the Court.

5. In this case, on an interim basis, I am quite satisfied on the evidence that the presumption is rebutted. It would not be in the child’s best interests for these two parents, given the history of their co-parenting relationship since separation, to be expected to have to communicate, consult and reach joint decisions about the child. I am quite satisfied that the mother has the capacity to appropriately make decisions about the child by herself that are in the child’s best interests. Requiring her to consult the father on any such decisions and to negotiate a joint outcome might compromise her capacity to provide the requisite care for the child.

6. I will make an interim order conferring sole parental responsibility on the mother.

7. As a consequence, there is no requirement to consider orders that the child spend equal time with each parent or substantial and significant time with the father. It should be evident from my reasons already expressed that I do not consider orders in either of those forms to be in the child’s best interests at this interim stage of the proceedings.

8. I make the orders set out at the commencement of these reasons.  They begin, for simplicity, with a discharge of all previous parenting orders, so that these orders are the only current parenting orders that apply. I will remake some of the ones previously made by other judges that should, in the circumstances, continue to apply.  I will make some small amendments to the wording of those to better reflect the intention of the Court, constituted by me.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 May 2015.

Associate:

Date:  29 May 2015