Hullett and Connor

[2009] FamCA 48

FAMILY COURT OF AUSTRALIA

HULLETT & CONNOR [2009] FamCA 48

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Hullett

RESPONDENT: Mr Connor

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Smith & Associates

Brisbane

NO APPEARANCE BY THE RESPONDENT

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Falcomer

Orders

IT IS ORDERED UNTIL FURTHER ORDER OR OTHERWISE AS AGREED BETWEEN THE MOTHER AND THE INDEPENDENT CHILDREN'S LAWYER THAT

1. The orders made on 10 May 2005 with respect to the time that the father spend face to face with the child … born … July 2001 (“the child”) are suspended.

2. The father be at liberty to communicate with the child, solely by way of the child’s mobile phone numbers previously provided to him, at such reasonable times as he might desire but not more than three times each week.

3. The father spend face to face time with the child at all such reasonable times as might be arranged with Family Consultant Mr F pursuant to and as part of the process conducted by Mr F pursuant to Section 65L of the Act and that such time with the child be supervised by Mr F.

4. The father spend supervised face to face time with the child in consultation and as agreed in writing with the mother and the Independent Children's Lawyer.
   
   

IT IS FURTHER ORDERED THAT

1. Leave is granted to the Independent Children's Lawyer to issue subpoena to:

   a.the Commissioner, Queensland Police Service in relation to any documents held by them in and about an incident alleged to have occurred in the foyer of the G Police Station on 25 December 2008 and any other documents relating to the father eminating from such incident;

   b.the Royal Brisbane Hospital in respect to follow-up appointments with the father.

2. Subject to any objection taken by the recipient of any subpoenaed documents, the parties have leave to inspect any material produced pursuant to subpoena, and the Independent Children's Lawyer ONLY have leave to copy any documents as might reasonably be required, and no other party has leave to copy documents without an order by Justice Murphy.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Independent Children's Lawyer provide the father with a copy of the orders made today.

2. A transcript of the Reasons for Judgment of today be prepared and a copy of such be forward to all parties and by the Independent Children's Lawyer to the father.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC4645 OF 2007

MS HULLETT

Applicant

And

MR CONNOR

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 12 September 2008, this matter came before me, for the first day of a hearing. 

2. It is safe to find, even within the confines of these interim proceedings with all of the inherent restrictions applicable thereto with respect to making findings, that the husband has suffered in the past from significant psychiatric difficulties. 

3. The parenting issues in respect of the child who was born in August 2008 can be seen as being very much within the confines of that particular difficulty because that difficulty is, in turn, related to many of the matters which the Court must consider pursuant to s 60CC of the Act.

4. With those considerations in mind, on the last occasion that the mother was before me, I made orders pursuant to s 65L of the Act appointing a family consultant of this Court to supervise, within the meaning of that section, time between the child and his father. 

5. I also foreshadowed with the agreement of the parties, and in conjunction with the Independent Children's Lawyer, an assessment of both parties, and the father in particular, by a consultant reporting psychiatrist. 

6. Ms Falcomer, who appears as the Independent Children's Lawyer today, indicates that arrangements have been made with that psychiatrist, Dr C, for interviews to be conducted on Monday, 2 February 2009.  It is anticipated that a report will be available to the parties and the Court within about two to three weeks thereafter.

7. The matter is next due before me for the second day of the hearing on 19 March 2009. 

8. The current application is brought urgently by the mother and essentially stems from an incident occurring at a changeover which occurred at the G Police Station around Christmas time.  That was, without making any factual findings about precisely what occurred on that occasion, a disturbing incident.

9. It had the result that the father was admitted, as an involuntary psychiatric patient, to the Royal Brisbane Hospital.

10. On the return date of the mother's urgent application today, the father does not appear.  His name has been called three times outside the precincts of the Court.  The Independent Children's Lawyer, Ms Falcomer, has attempted to contact the father on both his mobile phone and his home telephone number.  No contact has been made with the father.

11. It is be noted in that respect that, on the return date of contravention applications which, on the last occasion, I transferred to the Federal Magistrates Court, the father also did not appear. 

12. Equally, at a scheduled appointment with Mr F, on 19 January 2009, as part of the s 65L process earlier referred to, the father also did not turn up.

13. I am, of course, troubled by making orders in the absence of a party, particularly parenting orders. 

14. The father has appeared before me on earlier occasions and I have had the opportunity to observe him. 

15. Earlier today, I gave leave to the parties to inspect documents produced pursuant to subpoena from the Royal Brisbane Hospital.  Ms Falcomer indicates to me that the father was an involuntary inpatient at the Royal Brisbane Hospital between 26 December 2008 and 7 January 2009. 

16. The discharge notes indicate that he was, at that time, diagnosed as suffering from a delusional disorder, that he was due to attend on 20 January 2009, he was two hours' late on that occasion, but that otherwise he was cooperative with the monitoring on that day and reported as being compliant with his recommended medication. 

17. The notes indicate a follow-up plan whereby the father would be seen by that hospital once a month. 

18. Disturbingly, those notes refer to a suggestion that the father had attempted self-harm while in the custody of the police after the incident on the occasion earlier referred to.  I emphasise that evidence in that respect appears only in the form of what appears to be a notation taken by an officer of the hospital from, it seems, a police officer who had brought the father to that hospital for involuntary admission.

19. Nevertheless, that statement, appearing as it does in circumstances where I have not had the opportunity to hear from the father about the incident, and, appearing as it does in the context of an apparent diagnosis from the hospital of the father suffering from a delusional disorder, together with all of the other facts and circumstances of the case, in particular those relating to the father’s mental health, cause me to have significant concerns about the child’s safety while in his father's care.

20. Mr F has prepared a report for the Court dated 22 January 2009.  At paragraph 65 he says:

    "[The child] is saddened about not seeing his father or spending time with him.  In my view, [the child] should have the scope to continue to spend time with his father but, at this stage, I possess some concern that his father cannot comply with the conditions of protecting [the child] from adult concerns, conflict and denigration.  I'm also concerned about the events of Christmas Day.  In my view, the Court should act cautiously, at least in the interim period, and [the child] should either spend time with his father for short daytime visits or under supervised conditions.  This could occur through a contact centre or for a short period under the section 65L provisions."

21. Mr F goes on to provide:

    "If the psychiatric issues are more clearly defined and there is a concern about the father's parental capacity, the Court, in my view, should consider the possibility of having a longer term safety net in the orders for supervised time between [the child] and his father…"

22. Although it appears from Mr F’s report that he was aware, in broad terms, of the incident occurring at Christmas time to which I've earlier referred, Mr F had not seen at the time of the preparation of the report, any documents produced pursuant to subpoena, including those from the Royal Brisbane Hospital.

23. I emphasise that I have not received anywhere near the extent of evidence I would like to have in respect of that incident and the father’s psychiatric condition generally at that time and during the time that he was a patient at the Royal Brisbane Hospital.

24. Nevertheless, and particularly given that he is not present, the extract from the discharge notes to which I have made reference, despite the more optimistic scenario painted at his discharge from hospital (of compliance with treatment and medication), causes me significant concern for the child.

25. I consider that, in all matters in relation to children, the Court should proceed cautiously, and conservatively and err on the side of protection.  This case is no exception. 

26. I have no doubt that the father loves the child and it seems clear to me that the child would like to spend time with his father. Indeed the mother does not, I think, dispute that the child may like to spend time with his father although she asserts that the child is somewhat concerned by aspects of the father's recent behaviour.

27. Nevertheless, acting conservatively and acting with protection of the child as my primary concern, I propose to order that time with his father occur only in conjunction with appointments made by Mr F as part of an order made pursuant to s 65L of the Act or in such other supervised environment as the parties, in consultation with the Independent Children's Lawyer, might agree. 

28. Given the father’s non-appearance today, I was anxious to return this matter before me at the earliest opportunity having arranged, via the Independent Children's Lawyer, for a copy of these orders to be served upon him. 

29. However, I note that Dr C is due to see the parties in another week or so and ought have a report available for the Court by about the end of February. 

30. I also note that, pursuant to my orders, there is at least the opportunity for the father to spend time with the child within the confines of, and protected by, the s 65L order previously made and that the matter is due to return before me on 19 March. 

31. Bearing those matters in mind, I do not propose to order the matter come before me earlier than that date.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  4 February 2009