Hendrickson and Murrell (No 3)

[2012] FamCA 1010

FAMILY COURT OF AUSTRALIA

HENDRICKSON & MURRELL (NO. 3) [2012] FamCA 1010

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where there is a high level of mistrust between the parties – best interests – where it was inappropriate to maintain the presumption in these circumstances.

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother alleges that the father suffers from psychiatric issues – where there are concerns that the child may be at risk in the father’s care – best interests – where the Court must err on the side of caution at this stage of the proceedings – orders that the father’s time with the child be suspended and recommendations for the father to undergo psychotherapy.

Family Law Act 1975 (Cth) ss 60CC & 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Hendrickson

RESPONDENT: Ms Murrell

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 272 of 2012

DATE DELIVERED: 30 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Hume Taylor & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

1. During the period of the adjournment the orders for the child H born on … June 2009 to spend time with the father are suspended.

1. The Court recommends the father undergo psychotherapy with a qualified psychiatrist of his choice and that the psychiatrist be provided with copies of all affidavit material filed in these proceedings (including in particular the two reports from Dr E) and the father is to notify the name of the qualified psychiatrist to both the mother’s solicitors and the Independent Children’s Lawyer within seven [7] days of his first appointment with the psychiatrist.

1. The matter is adjourned to 5 April 2013 at 9.15 am before the Honourable Justice Dawe for mention.

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before Registrar Paxton on a date to be advised by the Court UPON NOTING no current estimate of trial length was given.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hendrickson & Murrell 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 ADELAIDE

FILE NUMBER: ADC 272 of 2012

Mr Hendrickson

Applicant

And

Ms Murrell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a hearing of the matter concerning the welfare of the child, H (“the child”).  The proceedings have been on foot before the Court for some time and attempts have been previously made to put it in a list for final hearing, but events have prevented that.  This morning before me the father appears unrepresented.  Mr Bowler appears for the mother and Mrs Tinning for the Independent Children’s Lawyer.

2. These proceedings concern the welfare of the child, H, who is a child of the parties.  The Court has before it now a large amount of affidavit material from both the parties and the Independent Children’s Lawyer.  That material contains serious allegations in relation to matters which will need to be determined in order to ascertain what is in the best interests of the child.  In particular, the matters which are raised concern the need to protect the child from harm, whether that is physical, emotional or psychological harm and the benefit to the child of having a meaningful relationship with both of the child’s parents.

3. Previously orders have been made that the father spend time with the child and orders have also been made that provided for the child’s time with the father to be supervised.

4. On previous occasions the Court has received a report from Dr E.  There were issues on the last occasion about the information that had been provided to Dr E and whether the same had been made available to the other parties and the Court.

5. On 23 October 2012 the matter was adjourned and the orders were made suspending the time that the father spent with the child.  A large amount of evidence has now been filed, including affidavits filed by the father both of himself and his family members.  The affidavit, which was filed on 20 November 2012, which the father helpfully referred to as document 51 on the Court file, has a large amount of material attached to it, including the first report of Dr E, prepared in May 2012.  The complaint which the father has made about Dr E to a supervising authority and also an attachment, being an email authorising the mother to tender the psychiatric report of Dr E to the Court, with copies to the mother’s solicitors and the Independent Children’s Lawyer.

6. There are also attachments concerning a letter from the father to Mr Bowler and Mr Kent and, as the last annexure, reference has been given by the father which appears to be details from a police file in relation to the complaints previously made by the mother, the father highlights that that complaint has a note:

   Evidence and effects of alcohol and drugs ‘nil alcohol or drug issues, mental health and other health issues, nil.  Firearms/dangerous weapons nil.

7. The same document it should be noted has a heading “Fears Held by Police”.

   [The father] has a lengthy history of four convictions for assault, four for assaulting police, others for malicious damage and other offences.  He is mentioned in 10 previous AVOs to other parties, most as the defendant.  Police believe there are reasonable fears that [the father] could escalate the harassing, intimidating behaviour to a violent level, especially as the custody and access dispute goes on.

8. That appears to be a document from the Local Court, dated 30 August 2010 and that being attachment 10 to the affidavit of the father, filed in these proceedings. 

9. Attachment 6 to that affidavit is also what appears to be a note from a doctor’s file headed “Patient Medical History” of 30 January 2012 and appears to be signed by Dr M.  The name does not finish and the writing suggests that he is a psychiatrist.  That daily record indicates that the father has no psychotic phenomena exhibited or alluded to.  His cognitive functions were not formally tested but were clinically normal. 

10. The father also referred in that affidavit to Dr E not being a psychiatrist and asserting in various parts of that affidavit that Dr E is not a qualified psychiatrist. 

11. The affidavit of the Independent Children’s Lawyer, which was filed on 25 October 2012, has attached to it the report of Dr E of 22 October 2012, being his second report which was prepared following upon the further documents which were provided to the psychiatrist, following the adjournment of the matter.

12. The report clearly sets out on the face of it, Dr E’s qualifications, B.M.B.S., F.R.A.N.Z.C.P.  Indeed, on page 8, there is a reference to discussions about the father’s evidence of narcissistic personality traits and refers to the transcript of the Magistrates Court.  In that large paragraph on page 8 of his report, Dr E makes it clear that he made a recommendation that the father see a clinical psychologist and then says (“I am a psychiatrist.”)

13. When that was pointed out to the father, in the actual hearing before me this morning, he indicated that he had thought previously that it had said that Dr E had admitted he was not a psychiatrist.

14. The report of Dr E is a significant matter before me today.  When trying to ascertain the facts upon which this Court should make a decision, in interim matters it is very difficult, and, in particular, in this case, that difficulty is highlighted.  The father makes serious allegations concerning the mother making false allegations about him and his behaviour and makes serious allegations about the benefit to the child of an ongoing relationship with him and denying that he is any risk to the child.

15. The Court, therefore, has to determine, as best it can, on the facts that are currently before it the factors which are relied upon to establish what is in the best interests of the child, in accordance with the authority of Goode & Goode (2006) FLC 93-286.  The provisions of the Family Law Act 1975 (Cth) (‘the Act’), which is section 61DA, which raises a presumption of equal shared parental responsibility, allow for the presumption to be offset. It may be rebutted if the Court is satisfied that it will not be in the best interests of the child.

16. In this matter it is clear that the ongoing conflict and disagreement between the parties is at a very high level, with a lack of trust that could only be described as extreme.  It would, therefore, be inappropriate to maintain the presumption that it is in the best interests of the child that there be joint parental responsibility or that there be, as a result, any presumption of significant or substantial time spent with each of the parties.

17. The provisions of section 60CC set out what the Court must consider when determining what is in the best interests of the child, which is the paramount consideration. The primary considerations emphasise the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

18. If I were to take the mother’s case at its highest, then there would be a reduction in the benefit to the child of having a relationship with the father, due to the issues raised by the mother in her material concerning the father’s past behaviour. 

19. If I were to take the father’s case at its highest, then he should have what he is seeking, the regular time with the child one day each week, so that he could maintain his relationship with the child.

20. The independent evidence from the psychiatrist, Dr E, is, therefore, significant in my attempt to balance those factors, before the evidence of each of the parties can be tested in the appropriate way at a final hearing.  The report of Dr E needs to be considered in its totality, but for the purposes of these reasons I will simply refer to sections of the report.  The conclusions which are relevant commence on page 7 of that report.  At the top of that page it says:

    It is difficult to know whether [the father] is suffering from an axis-1 psychiatric disorder, given the less than forthright way he gave his history.  It is my opinion there is insufficient evidence to say he is suffering from an axis-1 psychiatric disorder however I would be concerned that he may be concealing a problem with illegal drug use.

21. The report then continues later in the next paragraph:

    On page 17 of my report dated 2 May 2012 I stated there was evidence of personality vulnerabilities.  The additional information I have now seen indicates prominent maladaptive personality traits.

22. The expert psychiatrist then makes reference to various factors, including the allegations made by the mother and the references made to the transcript of the Magistrates Court proceedings (which has been provided to the psychiatrist) those proceedings being matters relating to apprehended violence orders made, which have been challenged by the father and continue to be challenged, he tells me from the bar table this morning, in the Supreme Court of New South Wales.

23. The report of Dr E continues and at page 9 says:

    At the very least, [the father] is suffering from antisocial personality traits and from narcissistic personality traits.  I would recommend he see a psychiatrist for psychotherapy.  I would recommend he see a psychiatrist with expertise in treating Personality Disorders and dysfunctional personality traits.  He would probably require a number of sessions of psychotherapy in order to make meaningful progress.”

24. The report continues on page 9, saying at paragraph 5.5 taking into account the whole of that paragraph and, in particular, where it says that:

    Given his personality structure he would have difficulty empathizing with and appropriately relating with his son.  Given his personality structure it is probable he would have difficulty containing his emotional problems (including anger) and therefore his son, Harry, may be adversely affected by his anger and aggression.

25. It continues:

    Indeed, I am concerned that his anger and aggression (and his history of previous violence) may place his son, [H], at risk.  I am concerned that he would lack the self control to refrain from denigrating [the mother].  He appears to lack the ability to communicate effectively with and to work with [the mother] regarding raising their son. 

    In summary, from a psychiatric perspective, I have considerable concern regarding [the father]’s ability to care for his son.

26. I have taken into account all of the report and the previous report prepared by Dr E.  I make it clear at this stage that I can make no final determination as to the facts alleged by the father, or the facts alleged by the mother upon which Dr E has drawn his conclusions, but take into account the qualifications of Dr E, and the fact that on this interim basis, my main concern is to protect the welfare of the child.

27. I therefore propose to suspend all orders which provide for the father to spend time with the child.  It has been suggested this morning by the Independent Children’s Lawyer that I make an order that the father undergo psychotherapy with a qualified psychiatrist and that the treating person be provided with copies of the reports of Dr E and other information which might assist in the psychotherapy.

28. In that regard, the father is obviously aware of the recommendations of Dr E, but clearly does not accept the recommendations of Dr E.  It is not at this stage appropriate in my view to make an order that requires the father to do so.  However, it would be appropriate to clearly indicate to the father that the Court would recommend he seek further psychotherapy from a qualified psychiatrist of his choice on the basis that the psychiatrist of his choice have available to him the two reports of Dr E filed in these proceedings, and copies of the affidavit materials filed by the mother, father and the Independent Children’s Lawyer in these proceedings.

29. I therefore make that recommendation that the father undergo psychotherapy with a qualified psychiatrist of his choice, and recommend that that psychiatrist have available to him or her all affidavit material filed in these proceedings including in particular the two reports of Dr E. 

30. I have also been requested this morning to make an order that the father undergo random drug testing to ascertain whether there is an abuse of illicit drugs.  Again, that was recommended in Dr E’s second report, but there is no formal application before the Court this morning, that being an oral application by counsel for the Independent Children’s Lawyer.

31. Because of the Court’s obligation to ensure that fairness is done to unrepresented litigants in particular, I will not make that order today because the father has not had an opportunity to seek appropriate legal advice, and because the Court is not aware of the availability of suitable facilities in his hometown of Town B to prepare the appropriate drug testing which would be useful for the Court to determine these factors. 

32. The matter has been before the Court for some time.  If the father seeks psychotherapy as appropriately recommended by the Court, then it would be likely that a trial should not take place until that psychotherapy has been completed, and an appropriate independent psychiatric report obtained from either Dr E or other appropriate independent qualified psychiatrists. 

33. However, I am of the view that the matter should at least be placed in the list of matters awaiting trial in the near future.  It is not appropriate to list it at the moment because it is not clear how long the trial will take or when the psychotherapy is undertaken by the father has been completed.  If the father does undertake the psychotherapy proposed, it will be appropriate for him to notify the name of the psychiatrist to both the mother’s solicitors and the Independent Children’s Lawyer within seven days of his first appointment for psychotherapy. 

34. As far as the future management of the matter is concerned, I propose to bring the matter back before me for mention on 5 April 2013 at 9.15 am.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 November 2012.

Associate: 

Date:  5 December 2012