Irving and Irving and Ors

[2013] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRVING & IRVING & ORS [2013] FCCA 2380

Catchwords:
FAMILY LAW – Interim parenting orders – serious psychotic episode of  Father  while children in his care – issues of supervision and whether paternal Grandparents are appropriate supervisors – extensive psychiatric evidence that confirms Father was mis-diagnosed and therefore not properly medicated at time of psychotic episode – Mother has recently re-partnered with Father ’s cousin – issues of ‘blended family’ when relatives now become siblings.

Legislation:  

Family Law Act 1975, ss.60CA, 60CC(2b), 60CC(2A), 60CC(3)(c) & (i), 61DA, 65DAA

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

Applicant: MR IRVING

First Respondent: MS IRVING

Second Respondents: MR J & MS C

File Number: CAC 532 of 2013

Judgment of: Judge Neville

Hearing date: By written submissions

Date of Last Submission: 2 December 2013

Delivered at: Canberra

Delivered on: 18 December 2013

REPRESENTATION

Solicitor/Advocate for the Applicant: Ms S Milson-Mahy

Solicitors for the Applicant: Pappas J, Attorney

Solicitor/Advocate for the First Respondent: Ms A Osmand

Solicitors for the First Respondent: Dobinson Davey Clifford Simpson

Solicitor/Advocate for the Paternal Grandparents: Mr D Moore

Solicitors for the Paternal Grandparents: KJB Lawyers

Solicitor/Advocate for the Independent Children’s Lawyer: Mr K Hubert

Solicitors for the Independent Children’s Lawyer: Capon & Hubert

ORDERS

1. The children spend time with the Father on Saturday or Sunday of each week from 9am until 5 pm supervised by the paternal Grandparents;

2. In addition to relevant parts of the undertakings already given and filed on 5^th July 2013, within 5 days of the date of these orders each of the Grandparents is to file with the Court a further written undertaking that conforms to the matters identified in par.5 of the submissions filed on their behalf on 8^th November 2013;

3. Changeover shall be effected by the paternal Grandmother at Marymead (both the paternal Grandfather and Mr B should not attend any changeover);

4. The Father be permitted to telephone the children every Tuesday and Thursday between 5.30pm and 6.30pm; the children be permitted to telephone their Father at any reasonable time and their Mother is requested to facilitate that this occur;

5. The children spend from 10am until 2pm with their Father on Christmas Day (also supervised by the paternal Grandparents);

6. The Father be permitted to attend the children’s school and sporting events in the company of his parents; when this occurs, the paternal Grandfather and Mr B shall not come within 100 metres of each other;

7. All parties shall engage with (omitted) Mental Health regarding psycho-education.  The parties are permitted to provide a copy of these orders to (omitted) Mental Health with a request that all things are done to facilitate the education of all parties, including the Mother, Ms Irving, and the paternal Grandparents.

8. If the Father fails to comply with his treatment regime, his time with the children shall be immediately suspended.

9. The Father shall do all things necessary to ensure that he remains on a psychiatric treatment order.

10. Within 5 days of the date of these orders, the Father shall provide authorities or consents to any other party to these proceedings to enable them to communicate directly and receive any information (oral or written) from his mental health team regarding his treatment.

11. The Court requests the parties (and the ICL) to indicate to the Court within 24 hours of the date of these orders whether there is any opposition to the preparation of a report by a Regulation 7 consultant.

12. Upon compliance with order 11 of these orders, the Court discharges the appointment of the current ICL and requests the Legal Aid Office of the ACT to appoint, as expeditiously as possible, a new ICL.

13. Pursuant to Section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for the children, X (d.o.b (omitted) 2002), Y (d.o.b (omitted) 2004) and Z (d.o.b (omitted) 2008).

14. The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the children.

15. Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

16. Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.

17. The matter be listed for final hearing for 4 days commencing on 3 March 2014 at 10:00am in Canberra and further trial directions shall be made in Chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT CANBERRA

CAC 532 of 2013

MR IRVING

Applicant

And

MS IRVING

First Respondent

MR J & MS C

Second Respondents

REASONS FOR JUDGMENT

Introduction

1. Detailed oral reasons were delivered on 18^th December 2013.  At the time, I advised the parties that amplified/revised written reasons would follow.  These are the revised reasons for the interim parenting orders that were made on that date regarding the three children of the relationship, X (aged 11), Y (aged 9), and Z (aged 5). 

2. The matter is listed for final hearing in early March 2014.

Background

1. On 9^th October 2013, the Applicant Father filed an Application in a Case in which he sought, on an interim basis, amongst other things, face-to-face time with his three children, supervised by his parents.  This is in circumstances where he has spent no face-to-face time with them since a very serious psychotic episode in February 2013 that involved the children.  Subject to what is said later in these reasons, factually, the matter is framed by two incidents. 

2. The first is the Father’s psychotic episode in February this year to which I have referred and which is the subject of very significant comment in the affidavit material, police and court records, and the detailed report of the Court-appointed expert, psychiatrist Dr B.

3. The second incident is one involving the Mother, her partner, the paternal Grandparents and the child, Y, when the Mother ‘retrieved’ him from (omitted) Club on 8^th November. 

4. In the Mother’s affidavit filed on 19^th November, she said at par.15:

   I formed the view that it was not helping Y’s behaviour to remain in the care of the Grandparents.  I had originally agreed that Y would return to my care on Sunday, 10 November 2013.

   I need not retale here the circumstances that gave rise to Y living temporarily with the Grandparents.

5. The Mother then recounts her version of what happened between her, her partner, the paternal Grandfather, Y and, depending on whose version is referred to, the maternal Grandmother and friends of the Grandparents.  She says that she attended the club around 9 pm.  There are mutual allegations and denials of aggression, claims of assault, intemperate language, bullying and contentions of intoxication, the latter levelled primarily at the Grandfather and the Mother.  There is also a passing reference in Dr B’s report (at par.481) to the Mother’s use of alcohol in the past from records of Care and Protection.[1]

   [1] Pursuant to orders made on 23^rd October 2013, Dr B’s report, dated 23^rd July 2013, was admitted into evidence as Exhibit A. The Court also had before it, pursuant to s.69ZW of the Family Law Act 1975 (“the Act”) (and to which the parties had access) a report from the ACT Office for Children Youth and Family Support (“OCYFS”) (which was released to the parties on 5^th July 2013), and the file from the ACT Magistrates Court (Folder No.(omitted)) in relation to the Applicant Father, to which the parties’ lawyers also had access.

6. Noting that I make no findings in relation to any of the various contentions because I cannot do so,[2] on any and every version, there was certainly some incident at a club involving the adults mentioned and Y, and his young sister, Z, was also present and presumably witnessed some of the incident as she was in her Mother’s car at the time. 

   [2] See the Full Court’s acknowledgement of this regular feature of interim proceedings in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] & [82].

7. As an observation only, given (a) how understandably tense, if not rather fraught, the relations between the adult protagonists are; and (b) that there was an agreement between the Mother and the Grandparents for Y to remain with the Grandparents until the following Sunday, it does not strike me as an ideal circumstance, or the most prudent choice in all the circumstances, to attend a club on a Friday night with one’s new partner, who is a relative of all involved, seeking to retrieve the child.  Respectfully, given how delicate the matter is at all levels, the factual and emotional ingredients to which I have referred suggest that it was potentially, if not almost inevitably, going to end badly for all.  Alas, this is exactly what happened.

8. In addition to the principal issue regarding the resumption of the children spending time with their Father - which (as I have said) the Father is seeking with his parents as supervisors - there are a plethora of other, related issues which either need to be determined or which otherwise have (or are likely to have) some material impact on the parenting orders that are in the best interests of the three children of the relationship: X, Y, and Z.

9. These other issues include: (a) the mental health of the Father, his psychiatric treatment plan and the Mother’s engagement with mental health education; (b) whether the paternal Grandparents (who are parties to the proceedings) are appropriate supervisors, or whether institutional supervision should be ordered; (c) the role and impact on the children of the Mother having re-partnered with the Father’s cousin, and the import and effect of the blended family on the children.

10. Further, and in addition to these matters, the Mother has advised in a recent affidavit (filed on 19^th November 2013), and supported by her partner, Mr B (he filed an affidavit on the same date), that she wishes now to relocate to Queensland with her partner.[3]  She confirmed, at par.28 of her affidavit – and Mr B, at par.35 of his – that she:

    [3] Given that everyone else in these proceedings is an “Irving”, for ease of reference and with no disrespect to Ms Irving’s new partner, I will refer to him simply as “Mr B”.

    …started to discuss this relocation approximately one month ago.

11. Ms Irving confirmed that Mr B has recently applied for a job in Brisbane.  Mr B says in his affidavit (at par.35) that he applied for a job “last week” and that he was travelling to Brisbane in the week he affirmed his affidavit “to have a look at the area and places we might live”. 

12. Presumably, the Court may take it that, absent any written agreement from the Father, there will be no relocation prior to the Court’s determination of parenting orders which will, I assume, include the matter of relocation.  Presumably, too, the Court may treat Mr B’s comments as indications of exploratory steps only regarding the proposed relocation.  Other than the references in the affidavits to which I have referred, there is as yet no formal application before the Court in this regard.

13. In his written submissions, the solicitor who has been acting for the Independent Children’s Lawyer (“ICL”) has indicated that the Mother’s proposal to relocate is not supported because it is not in the children’s best interests.  The Father and the Grandparents similarly oppose the mooted move to Queensland. 

14. In this regard I note that in Mr B’s first affidavit in this matter (filed 10^th May 2013), he deposed that he was married to Ms S and that he has three children with her.  Curiously, in Mr B's November affidavit, he makes no mention of (a) his own three children with his Wife Ms S, (b) the time they spend or live with their Mother, or (c) what impact the relocation might have on those children.

15. In the Mother’s most recent, updating affidavit there is no mention of the relational or family configuration in her household, other than a confirmation that she and Mr B went to a club on 8^th November to collect her son Y from the paternal Grandparents.  Put another way, the Court has not been advised either by the Mother or by Mr B how many of Mr B’s three children are living with, or details of how much time they are spending with the Mother, in her household at any one time.

16. However, courtesy of Dr B’s report, (e.g. pars.42, 201 & 435), the Court is aware that (a) the Mother and Mr B became a couple and started to live together in approximately July, and (b) Mr B’s three children spend time (or live) with them (it is not completely clear precisely what it is), according to Dr B, “second weekly.”  In his affidavit filed on 25^th November (par.18) the Father surmises that Mr B shares the care of his own children with his former wife, Ms S. 

17. Presumably at some stage prior to the trial, the Court will be advised what the situation is in relation to Mr B’s children and their living situation vis-à-vis the children who are the subject of these proceedings. 

18. Again by way of observation only - I do not and cannot put it any higher - it would seem that the children in the current matter are more likely than not to have some view in relation to, and be affected by, having (a) their Father’s cousin, their uncle, now as their step Father, and (b) their cousins also now as their stepsiblings.  In this regard, see for example Dr B’s report at pars.211-213, 242, 277, 280, 507, 511, 517-518, 521 and 538-539.  Indeed it may be that some of the behaviour issues that have more recently been set out in the affidavit material, particularly involving Y, relate to some degree at least to these new family dynamics.  Indeed, Dr B notes some of Y’s concerns in this regard at pars.277, 280, 379, 390 and 521 of his report.

19. Of course, the children not spending time with their Father is doubtless also a factor, and likely a very significant one.  Such matters must, however, await further examination by experts, such as a regulation 7 consultant, who I suggest be engaged and who should have access to Dr B’s report and these reasons. 

20. As a further observation: in pars.57 and 70 of Dr B’s report, he notes Mr B’s influence on “the process” there discussed as being “significant”, and that Mr B considered the Father to be “psychopathic”, and under the [presumably adverse] influence of the paternal Grandfather.

21. In addition to Dr B’s report, and the s.69ZW report from OCYFS, annexed to the Father’s affidavit (filed 6^th November), there is a report from the executive officer of the ACT Mental Health, Justice Health and Alcohol & Drug Services, also dated 6^th November.  In a response from clinical staff to a letter to Mr H from the Father’s lawyers, there is outlined the Father’s current, and on-going, treatment regime (including his medication) and mental health.[4]  Among other things, that letter states:

    [5] Mr Irving is compliant with medication and has been described by his Clinical Manager as ‘aware and insightful’ with regard to the need to continue taking medication.

    [8] Mr Irving has appointments with Mr H as needed as well as prior to a Psychiatric Treatment Order being reviewed.  There is roughly a 2-3 month interval between appointments.  He is also required under the terms of the PTO [psychiatric treatment order] to have contact with his Clinical Manager fortnightly.

    [19] In general, close contact with family, particularly progeny, is very relevant to the process of recovery.  Mr Irving’s desire to have contact with his children is perfectly reasonable, normal and would significantly contribute to his recovery.

    [4] The 6^th November 2013 letter is annexure SI2 to the Father’s affidavit, filed on 6^th November 2013.

22. The Court also has a file from the ACT Magistrates Court which contains material relating to the charges that were laid against the Father following his psychotic episode. By way of summary only, all such charges related to driving offences, a number of them of course very serious.

23. Further, following submissions by the parties in Court on 23^rd October, the Court made orders on that day, amongst other things, requesting that the ICL contact Dr B in the light of his report to clarify or otherwise comment on his recommendations, and in particular, the suitability of the paternal Grandparents as supervisors of the Father and his time with the children. 

24. A timetable was fixed for those inquiries and for the provision of further submissions by all parties in the light of the information gleaned by the ICL from Dr B and then provided to the parties.

25. Also on 23^rd October, trial dates were fixed for the hearing to commence on 3^rd March 2014 and, as I have already noted, for Dr B’s report to be admitted into evidence. 

26. Dr B provided a response to the ICL’s inquiries by email dated 25^th October, which was also provided to all other parties.  That response stated (a very small number of grammatical corrections only have been made):

    I was most concerned that Mr Irving's psychiatric care was closely supervised and that further psychotic episodes were prevented or minimised. I did not form the impression that Mr Irving was any risk to the children when he is well and not psychotic. The children were also very attached to him and wished to see him.

    I formed the impression from the medical file that the Grandparents were very concerned and did know when he was becoming unwell. I believe that the Grandparents would have provided a safe and familiar environment to supervise visits from the children to see their father.  The Grandparents did not seem to have a serious conflict of interest, they were more concerned that their relationship would not be restricted. When they spoke with the Mental Health Teams they were concerned that if he was not treated that he would lose contact with his children. They appreciated the gravity of the situation.

    My view was that the children should see their Father at the Grandparents’ home.  I thought that 12 months was more reasonable as his illness needed that long to ensure that he was well stabilised and that he was more engaged and insightful. The transition to less supervised care should occur when the treatment team is confident that he is stable and that he is attending regularly and compliant with medication, and that family members are able to be involved so that if they had concerns that the treating psychiatrist was informed.

    I was not informed about any other family member who could act as a supervisor and be willing and available as well as accepted by all family members. If there was such a person that may be a reasonable compromise. That person needs to be informed about Mr Irving's illness.

27. Since the Father’s Application in a Case (filed 9^th October 2013), the following affidavits and submissions have been filed:

    (a)Affidavits from the  Father, filed on 9^th October and 6^th and 26^th November; 

    (b)Five affidavits by, or on behalf of, the paternal Grandparents were filed on 21^st October and 26^th November; 

    (c)Two affidavits, to which I have already referred, have been filed by the respondent Mother and Mr B, both filed on 19^th November; 

    (d)Eight (8) sets of written submissions on behalf of all the parties and the ICL, who provided an early draft of submissions, and then an updated set.

28. The last submissions were filed on 2^nd December.  However, before considering the submissions, it is important to set out the orders sought, at least in summary form, to provide some context for the following discussion.

Orders Sought

1. In his original application, the Father sought to spend time with the children each Saturday from 9am until 5pm, supervised by his parents.  I need not detail the other brief orders in relation to providing the Mother with a psychiatric assessment of the Father’s state of health.

2. In his Application in a Case, filed in October 2013, the Father relevantly sought the same “time-with” supervised order, as well as telephone time and special occasion time with the children.

3. The Mother’s Response, filed in May 2013, sought interim orders solely in relation to the provision of certain reports, and sought to particularise parenting orders proper at a later time.

4. Later in these reasons I outline the latest version of orders sought as taken from the parties’ submissions.

Submissions

1. By way of summary, I note the following from the submissions to which I have referred.

2. The Father’s Submissions: Unsurprisingly, the Father’s submissions rely heavily on Dr B’s 25^th October email to which I have referred, in which he confirmed that the children should see their Father at the Grandparents’ home.[5]

   [5] In particular, see pars.3 & 4 of the Father’s submissions filed 11^th November 2013, as well as par.469 of Dr B’s report.

3. Paragraph 7 of the Father’s [primary] submissions deals with the Grandparents’ contact with ACT Mental Health, and paragraphs 8 and 9 deal with the psychiatric treatment order. Paragraph 11 deals with the additional considerations in Part VII of the Act, especially with respect to the children’s views. Again, there is reference to Dr B’s report at pars.519 and 524.

4. In his submissions in reply, filed on 25^th November, the Father expressed concerns regarding, or commented on (a) the trauma he is currently exhibiting caused by not seeing his children, (b) the events of 8^th November at the Club involving Y, and (c) the Mother’s alleged use of alcohol to cope with stress, among other things, by reference to Dr B’s report at par. 547.

5. The Father proposes that the paternal Grandmother conduct changeovers, and there are other submissions regarding relocation, telephone contact and the safety plan. 

6. Grandparents’ Submissions: Summarily stated, the Grandparents’ submissions note the following:  they too rely upon the email from Dr B to the ICL dated 25^th October.  They express concern regarding the children’s prolonged absence from their Father, and they outline what might be described as a general contingency plan for them to consider regarding the Father’s time with the children.

7. They confirm that they would consent to such a plan, which they had earlier circulated to all the parties for comment; they say that as at the date of the submissions, there had been no comment back in relation to it. 

8. In later submissions (filed 26^th November) they suggest that the Mother and her partner manufactured the incident at the club on 8^th November.  They too raise issues regarding the Mother’s use of alcohol, in part by reference to [as yet, unspecified] subpoenaed material.  They deny the allegations of assault levelled against them at the club, and they outline a series of facts which they say are not in dispute.

9. The Mother’s Submissions:  In the Mother’s submissions (filed 18^th November), again by way of summary, she says the Grandparent’s evidence is insufficient in the circumstances for them to act as supervisors.  The Mother still has doubts about them and whether or not they would inform her in the event that the Father has another psychotic episode with the children present.  The Mother expresses her concern in detail about the incident on 8^th November, for example, including what she says is an underlying hostility towards her by the Grandparents.

10. She doubts that the Grandparents have a proper awareness of their son’s condition.  The Mother also doubts whether or not there is a proper or sufficient safety plan in place that could adequately take account of the children’s needs, and therefore supervision should be at Marymead.  The Mother submits that the Father has not, or not appropriately, or with sufficient expedition, investigated Marymead as an alternative supervision venue, and has not properly put himself on the waiting list, knowing that there is a waiting time of significant length to get into Marymead.

11. She also says that she doubts that the Father can sustain his health beyond 12 months.  She sets out details of an interim DVO. 

12. The ICL’s Submissions: I will deal only with the revised submissions from the ICL. 

13. In his view, the deficiencies in the Father’s medical evidence have been remedied by the Father’s affidavit filed on 6^th November.  At paragraph 3, and at significant length, he notes and compares the conflicting accounts of relevant facts, particularly in relation to the events of 8^th November, as they are recounted in each of the parties’ affidavits.

14. Rightly, if I may say respectfully, he says the differing accounts can now only be determined at a final hearing as to the correct view, or the determination by the Court as to which view is the most or more accurate in all the circumstances regarding the incident on 8^th November. 

15. The ICL submits that there has not been as yet a collaborative treatment and safety plan worked out.  As he notes, in my view correctly, there needs to be, in my words, a collaborative approach that involves both parents and Grandparents and, to the degree possible, the healthcare professionals.

16. Of course, a number of the ICLs comments are necessarily qualified or cautious, and properly so, regarding the children’s time with the Father moving to being unsupervised. 

17. For my part, I have some difficulty seeing how, in the current circumstances of (a) it being approximately 12 weeks or thereabouts until a final hearing, and (b) the Father having spent no face to face time with the children since February 2013, there can be any unsupervised time before the trial.

18. I agree also with the ICL’s comment regarding the events of 8^th November as set out in paragraph 8 of his submissions.  I also agree with the ICL’s comments set out in paragraph 9 regarding the angst currently being experienced by Y because of the changes in the adults in his world, his Father’s health, and possibly the manner of Mr B’s introduction to his household.  I note the ICL’s alternative proposals for the children’s time with their Father, as set out in par.10 of his submissions.

19. The ICL, for the reasons set out in paragraph 11 of his submissions, opposes the newly proposed relocation of the Mother as not being in the children’s best interests. 

Discussion & Consideration

1. The following should be taken as “observations” on the evidence and submissions at this interim stage.  This is also to confirm that none of the following – unless otherwise specified – should be taken to be formal findings.

2. First, I have difficulty seeing what more the Father can do in relation to his medical and mental health.  Apart from (a) the effluxion of time and him remaining well, (b) the regular and appropriate taking of medication, (c) compliance with his psychiatric treatment order, and (d) appropriate supervision of his time with the children for perhaps some time to come, I ask rhetorically, what more can he do, and what more can he have done? 

3. Of particular importance, in my view, are Dr B’s previously noted comments, especially at pars.468-469 and 550-553.  It is important to set out relevant parts of those paragraphs.  Thus, Dr B said (emphasis added):

   [468] My own observations of the mental health reports and admissions indicate that there has been in my judgement insufficient attention to the potential risks and welfare of the children. Although they are mentioned on one occasion, in my judgement it is not given enough priority in the discharge planning.  Furthermore it seems clear to me that the diagnosis of Brief Psychotic Reaction could not have been sustained over this number of admissions and a diagnosis of a Paranoid Schizophrenic Illness should have been made earlier.  Dr C appears to be the first to give enough credence to this.

   [469] What is clear is that Mr Irving may have received suboptimal management in that there was an emphasis in the initial period on antidepressant medication rather than on antipsychotic medication. Furthermore there seemed to be an over-emphasis on stress related events that in my judgement in retrospect appear to be behaviours which indicated that he was deteriorating. That is, the events that are seen as precipitating are actually a consequence of his changed mental state. There are reports of Mr Irving ceasing medication however it does appear that medication may not have been strongly emphasised in his management. He also believed that he was getting too many side effects. His current medication is effective and is far better able to be managed, as it is a monthly injection. He is currently on a Community Treatment Order but this will expire in August 2013. These matters were discussed at length with all parties.

4. Later, Dr B said (emphasis added):

   [550] The evidence would suggest that he has a paranoid schizophreniform illness. His current diagnosis is Paranoid Schizophrenia. Prior to 2013 it would appear that his care was probably not optimal. He did not appear to have had sustained psychiatric intervention which is necessary considering his illness.

   [551] The initial emphasis in his management appeared to have been to deal with what may have been diagnosed as Bipolar Disorder or a recurrent depressive illness, but the discharge diagnoses indicated that on each occasion there was a lack of clarity regarding he diagnosis and management plan. Reactive psychosis that was attributed to stress was a diagnosis made on several occasions.  Most importantly this appears to have been the discharge diagnosis in 2012, nine months prior to the most recent relapse. During this period Mr Irving was not on medication and there was no Community Treatment Order or follow-up.

   [552] Subsequent to the recent episode Mr Irving is now on a treatment order that is compulsory and he is receiving intramuscular monthly injections of Paliperidone.  This appears to have been effective for his recovery and he has not had a relapse during this period.  This medication regime does not guarantee however that he will not have a relapse. It does substantially reduce the risk however.

   [553] Psychotic illnesses are characterised by hallucinations, delusional beliefs, impaired judgment and disorganised thinking. These were the symptoms that Mr Irving presented with. Furthermore it does have a significant impact on judgment and insight.  Psycho-education and regular follow-up can substantially increase insight and reduce the risk of relapse due to not adhering to medications.  I was not convinced that Mr Irving had actually had this opportunity in the past.

5. Those paragraphs record the expert medical opinion of Dr B that Mr Irving had been wrongly diagnosed and therefore wrongly and inappropriately medicated (and even not medicated at all).  Subject to further questions to Dr B in cross-examination, this opinion suggests to me that a large part of the responsibility for the psychotic episode in February 2013, indeed, perhaps most of the responsibility for it lies with this critical misdiagnosis and the resultant inappropriate medication being prescribed and taken - or not taken, as the case may be.  In this regard, I simply refer to the following paragraphs of Dr B’s report: 41, 139, 448, 457, 465-466, 468-469 and 550-553.  The latter paragraphs I have already mentioned.

6. Now that he has been correctly diagnosed, and is now being properly treated, subject to Dr B’s further comments and those responsible for his clinical treatment, it is hopefully to be expected that the risk of Mr Irving having another psychotic episode is extremely low, if not remote.  The Court does not yet know if the risk can be put any lower, even to the point of it effectively being non-existent.  Such matters are, of course, crucial for the Court properly exercising its protective role in relation to the children and the Court’s assessment of “risk” of any future psychotic episode.  In this regard, I note Dr B’s further comments (emphasis added):

   [562] In addition to concerns about the potential for harm arising from Mr Irving’s illness having an impact on his parenting, there have been concerns raised about the possibility of sexual abuse. This matter was first raised when Y was a baby. It was clear from the Care and Protection file however that this concern, which had been raised by the general practitioner, was not well founded. More recently, when Mr Irving was psychotically unwell, he was afraid that he might be a paedophile or that he might be homosexual. My suspicion is that the events that occurred when Y was a baby were quite traumatic for both parents. These events have been probably incorporated into some of his delusional fears. Fears about being homosexual are not uncommon in paranoid psychotic illness. There did not appear to be any evidence to support this fear having been acted on. The children also did not relate to their father in a way that would suggest that he had been abusive towards them.

   [563] The main issue to be addressed with regard to this matter is the potential harm to the children if their father was psychotic.  At no stage did he indicate that he had any harmful intentions towards his children. His main fear during his delusional episodes was that someone else would harm his children. The danger to his children would primarily come from rash action during a psychotic episode such as occurred in February 2013. These are realistic concerns and treatment adherence will be crucial to reduce the risks.

7. Dr B commented further:

   [564] With regard to the current request from their father for more contact and access to his children, the current timeline is probably optimistic. Supervised access probably would be needed for a longer period, at least 12 months and following this, unsupervised access would be contingent upon there being a very coherent management plan as previous recommended.

8. Again by way of observation in the light of Dr B’s comprehensive report, as with a great many medical things, as in life generally, it is rarely possible to say “never” (particularly in relation to matters of risk – such as even driving a car), with confidence. 

9. Secondly, I suspect the Mother’s concern about the alleged hostility of the paternal Grandparents (or the paternal Grandfather particularly) towards her (and also to Mr B) may be reasonably well-founded given the difficult and close family circumstances that have arisen with her re-partnering with the Father’s cousin.

10. However, even on her own evidence, she seems not to have the same general relationship difficulty with the paternal Grandmother.  In fact, historically and otherwise, the two women seem to have had a reasonably good relationship with each other.  According to Dr B, (at pars.184 and 533 of his report), the Mother and Grandmother were quite close, with the Grandmother expressing to Dr B her hope to remain friends with her former daughter-in-law.

11. Thirdly, I do not share the Mother’s concern about the Grandparents not appreciating the gravity of (a) their son’s condition, and (b) the risk that a further psychotic episode would pose for Mr Irving and, if the children were with him, for them also.  Apart from anything else, Dr B notes in his report the concern of the Grandparents to get more information and be properly informed medically.  He also notes that the children are their first priority.

12. In relation to these important matters, again I simply note the following paragraphs of Dr B’s report: 169, 172 to 174, 188, 204, 438, 457, 462, 468 to 469, 527 to 528, 531, 546 and 548.

13. In my view, it is critical to stress again how significant the misdiagnosis and consequent inappropriate treatment of the Father was and remains.  Not only has it effectively misled the Father and the Grandparents about the condition from which the Father is suffering, but also the appropriate symptoms to look for, as well as pursuing the appropriate prophylactic treatment.

14. To state the obvious, it has also compromised the Father’s care of the children, such as occurred in February 2013. 

15. Again, in the light of the Father’s misdiagnosis, the Mother too, must have laboured under the now recognised wrong information.  It was/is not her fault: like everyone else in the family, she just did not (and could not) know the relevant and accurate detail now before the Court regarding the Father’s (a) diagnosis, (b) medication and treatment and (c) the signs of the malady returning.  All of these things are now known and subject to any further relevant evidence at trial, must, in my view, change at least the following things: (i) the basis for past assessment of action or inaction, (ii) the assessment of risk and (iii) the proper course of action for the future, particularly in relation to parenting orders for the children to spend time with their Father.

16. All things of course, must ultimately be tested in light of the Court’s responsibilities under s.60CA and the rest of the legislative pathway in Part VII of the Act.

17. Fourthly, I have noted the ICL’s submissions and formally record my agreement with his comments regarding (a) the state of the evidence in relation to the events of 8^th November; (b) his concerns in relation to Y; and (c) his comments and confirmation that the children clearly want to see their Father.

18. Fifthly, I also share and generally accept the ICL’s comments regarding the need for a collaborative treatment and safety plan (which is also endorsed by Dr B).  It is imperative, especially in the light of the new diagnosis by Dr B, and the treatment regime being undertaken by Mr Irving, that the Mother engage with the mental health team who are looking after the Father.  Until she does so, her responses must necessarily be so much more speculative than they should be about diagnosis, treatment and prognosis.  Moreover, while ever she remains dis- or un-engaged, any collaborative treatment and safety plan in relation to Mr Irving and the children, must necessarily be without her input and about which she will remain, unfortunately, ignorant.

19. I turn then, as I am required to do, to the infamous legislative pathway.  However, before getting to that tantalising course, a few more things must be noted – most of them procedural. 

20. First, in the Father’s original application (filed 24^th April), his interim and final orders sought were rather sparsely drawn and perhaps, necessarily, somewhat limited in their scope.  However, there is no reference anywhere to what the Court should do in relation to parental responsibility.   

21. Secondly, in his Application in a Case (filed 9^th October), there is similarly no reference to parental responsibility for the children. 

22. Thirdly, the Mother’s Response (filed 10^th May), for understandable reasons, does not particularise any final orders, but like her former Husband, in her interim orders, she too makes no mention of parental responsibility for the children.

23. Fourthly, she has filed no response to the Father’s Application in a Case.  However, in her affidavit filed on 19^th November, the Mother requests that there be some limit on the Father’s telephone time with the children, in the event that the Court finds that it is in their best interests to spend face to face time with him. 

24. Also, in submissions filed on 18^th November, the Mother sets out the two orders she seeks, firstly in relation to the Father spending supervised time with the children at Marymead, and secondly, for telephone time for certain, prescribed occasions in the event that there is no time spent between Father and children, and if there is.

25. In the light of the above, the Court therefore has no application by any parent, or anyone else for that matter, regarding parental responsibility for the children, who are the subject of the current proceeding.

1. Finally, I note for the sake of completeness that not all submissions refer to the legislative pathway.  The Grandparents do not do so (apart from passing reference to the Full Court decision in Goode, but not specifically in relation to the pathway), nor did the Mother’s submissions. Rather, they tended to focus on factual matters and what they said flowed from them. In such circumstance, the Court must do the best it can in the absence of relevant reference to “the pathway” in Part VII of the Act.

The Legislative Pathway

1. In the light of these procedural anomalies, as I regard them – in all of the circumstances I do not regard any of the matters I have raised as criticisms – and having regard to the facts and circumstances of the matter, in my view, the presumption under section 61DA of the Act should apply in relation to parental responsibility. Moreover, any major long-term issue as defined under the Act, will only be relevant under such an order for the next three months or so, pending the matter resolving by consent or by the Court’s determination.

2. The legislative pathway must be adhered to, and not in any formulaic way.  For current purposes, the following summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act is sufficient (noting, of course, the relevant statutory changes to the primary and additional considerations in relation to “family violence”). Respectfully, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[6]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [6] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

3. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[7]

   [7] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. Lest it be thought otherwise, for more abundant caution because it has been suggested in this Court recently (I suggest that only a meretricious or particularly craven mind could or would think otherwise), Brown J’s overview of the pathway, must of course, be taken or understood to take account of any and all relevant legislative amendments in recent times.

5. Put another way, the strengthening of the Act’s domestic violence provisions and the Court’s protective responsibility to the children, must be taken to be firmly understood and formally a consideration to which the Court must have regard, if not pre-eminently so, in arriving at orders that the Court considers to be in the children’s best interests in accordance with s.60CA. I will deal with the additional considerations in s.60CC(3) first; I note the following, summarily. In doing so, I should be taken to follow the pathway sequentially without necessarily articulating each and every stone, stumbling block or building block that it comprises.

6. It is not in doubt, courtesy of Dr B’s report and the comments of the ICL, that the children wish to spend time with their Father.  These are clearly expressed views.

7. Further, and in my view, significantly, the fact that the children have not being seeing their Father is affecting them adversely.  The corollary is also true, according to the medical evidence before the Court, namely that the Father’s mental health is adversely affected or likely to be so, by him not spending time with his children.

8. It is not really questioned, it seems to me, that the children have a good relationship with both parents; they clearly do, especially with their Mother, with whom they live.  They also seem to have, and it certainly does not seem to have been questioned, a good relationship with their paternal Grandparents. 

9. Some doubt has been expressed, notably by Y, about the relationship with the Mother’s new partner, the children’s Uncle, Mr B.  The affidavit material also raises concerns about the style of parenting of Mr B towards the children.  Again, I make no comment.  These are simply observations.  There is precious little evidence, as I have already noted, about the children’s relationship with their cousins, now step-siblings, and how frequently they live with the Mother and Mr B.

10. The matters set out in s.60CC(3)(c) and (ca) are, in the current circumstances, particularly problematic because of the unusual and difficult circumstances of the Father.

11. I do not understand there to be any suggestion that either parent does not, or has not, otherwise fulfilled the basic parental responsibilities regarding, or otherwise paid proper and diligent attention to, the children.  In the Father’s case, this must qualified by (a) the allegations made by the Mother in her original affidavit, (b) the then state of his mental health, and (c) the now more accurately known state of his mental health and his treatment regime.

12. I have already remarked on the concern expressed by, amongst others, the lawyer for the ICL, of the impact on the children of them not spending time with their Father.  While ever this remains the case, the negative impact on the children will doubtless continue. 

13. I do not understand there to be any genuine practical difficulty or expense in the children spending time or communicating with either parent.

14. This could, however, be a much greater consideration at trial, if the relocation matter were to be pressed. Nor do I understand there to be any question about either parent, accepting the Father’s condition, having the capacity to provide for the children in the ways identified in the Act.

15. Apart from the Father’s mental health and treatment, the only particular issue that arises in relation to matters that touch on the maturity of the children, it seems to me, concerns Y’s well-being, the reasons for it and the best way of dealing with the issues that have to come to light regarding his behaviour.

16. At the present time, as I already remarked, once Y and the other children begin spending time with their Father, one hopes that this significant and specific stressor will be taken out of their lives and the Father’s life as well, to some degree at least.  Such matters, it seems to me, warrant some further consideration in the light of other independent evidence.

17. The only matter (already noted) that warrants consideration at this stage regarding the attitude of the parents in relation to the children and the responsibilities of parenthood, relates to the Mother’s decision to retrieve Y from the Grandparents, at a club, on a Friday night with her new partner.  I need not repeat what has previously been said about it not being a particularly wise decision.  I have no doubt that it was well-intentioned; but the prudence of the course taken, on even the most benign account, or that which most favours the Mother’s version of events, in my view, must be questioned. 

18. In relation to “family violence”, I take the psychotic episode as being obviously the most stark and directly relevant consideration here.

19. The Court has remarked at length already on the detailed comments of Dr B, the Father’s treating clinicians, and by the ICL, about the protective responsibilities that need to be exercised in the light of the new diagnosis and treatment regime.  Again, I will not repeat what has already been mentioned earlier in these reasons in relation to such matters.

20. The Court notes in particular, ss.60CC(2)(b) and (2A), in relation to the primacy of the Court’s protective responsibilities towards the children.  In my view, and in the light of Dr B’s report, his thorough diagnosis, the Father’s new and ongoing treatment regime, and his diligent attention to adhering to it, the protective responsibilities are at the forefront of the Court’s mind.

21. Having made the order for equal shared parental responsibility, it triggers the Court’s consideration of s.65DAA of the Act.[8] In short, in my view, the only orders the Court can properly consider in the current circumstances, exclude both equal and substantial and significant as those terms are defined in the Act. Rather, the Court must make orders that are in the children’s bests interests.

    [8] This section must, of course, be understood and applied in the light of the High Court decision in MRR v GR (2010) 240 CLR 461.

Conclusion & Orders

1. In my view, absent agreement in writing between the parties (and obviously involving the ICL), the following orders are in the children’s best interest on an interim basis:

   (a)The parents are to have equal shared parental responsibility for X, Y and Z;

   (b)The children are to spend time with the Father on Saturday or Sunday of each week from 9 am until 5 pm, supervised by the paternal Grandparents. 

   (c)In addition to relevant parts of the undertakings already given and filed on 5^th July this year, within five days of the date of these orders, each of the Grandparents is to file with the Court a further written undertaking that conforms to the matters identified in paragraph 5 of the submissions filed on their behalf on 8^th November;[9]

   (d)Changeovers shall be effected by the paternal Grandmother at Marymead (the paternal Grandfather and Mr B shall not attend any changeover); 

   (e)The Father be permitted to telephone the children every Tuesday and Thursday, between 5.30 pm and 6.30 pm; 

   (f)The children be permitted to telephone their Father at any reasonable time and their Mother is requested to facilitate that this occur;

   (g)The children spend from 10 am until 2 pm with their Father on Christmas Day, also to be supervised by the paternal Grandparents; 

   (h)The Father be permitted to attend the children’s school and sporting events in the company of his parents.  When this occurs, the paternal Grandfather and Mr B shall not come within 100 metres of each other;

   (i)All parties shall engage with (omitted) Mental Health regarding psycho-education.  The parties are permitted to provide a copy of these Orders to (omitted) Mental Health, with a request that all things are done to facilitate the education of all parties, including the Mother, Ms Irving and the paternal Grandparents. 

   (j)If the Father fails to comply with his treatment regime, his time with the children shall be immediately suspended. 

   (k)The Father shall do all things necessary to ensure that he remains on a psychiatric treatment order. 

   (l)Within five days of the date of these orders, the Father shall provide authorities or consents to any other party to these proceedings to enable them to communicate directly with and receive any information, oral or written from, his mental health team regarding his treatment.

   [9] For completeness, I note that those undertakings have now been filed by the paternal Grandparents.  This occurred on 19^th December 2013.

2. There are further, procedural orders made that relate specifically to the preparation of the matter for trial.  I will not deal with those matters here but by way of orders in Chambers.

3. The final matter concerns the independent children’s lawyer, which has been raised in correspondence.  I am aware of the circumstances as to why the currently appointed ICL cannot continue in that role for this matter, or for any other.  Firstly, I thank Mr Hubert for stepping into the breach on behalf of his colleague, the ICL.

4. I suspect that the ICL’s situation will necessarily have quite a range of flow-on effects for Mr Hubert and his firm. In such circumstances, I do not think it is fair to have him continue in this matter as the ICL’s substitute. Accordingly, subject to what I had flagged earlier, namely for the parties’ lawyers and the ICL to advise the Court within 24 hours of today, whether or not there should be a further report prepared by a Reg 7 consultant, I would then propose formally discharging the current ICL, with a request that there be a new ICL appointed as soon as possible. Again, I thank Mr Hubert for his typically thorough and diligent labours.

5. The Court so orders.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  31 January 2014