Jantz and Brunson

[2019] FCCA 2602

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANTZ & BRUNSON [2019] FCCA 2602

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund hearing – where father’s mental health is an issue of concern – whether appropriate to adjourn matter to have concerns addressed – whether in best interests of the child to do so – where child already exposed to protracted litigation – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice and Asplund, In the Marriage of, Re (1978) 6 FamLR 570

Applicant: MR JANTZ

Respondent: MS BRUNSON

File Number: BRC 635 of 2019

Judgment of: Judge Young

Hearing date: 27 August 2019

Date of Last Submission: 27 August 2019

Delivered at: Darwin

Delivered on: 27 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Ould

Solicitors for the Applicant: Morton & Morton

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

ORDERS

1. That the Initiating application filed by the father on 18 January 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

BRC 635 of 2019

MR JANTZ

Applicant

And

MS BRUNSON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting application concerning X who is nine years old. She lives with her mother pursuant to orders made on 13 June 2017. Those orders were made on an undefended basis after the father failed to appear. Orders about what would happen if the father failed to appear were made on 2 May 2017, which included at order 20 that the matter is adjourned to 13 June for further consideration and that if the father failed to comply with order “1” of those orders the matter may proceed by way of an undefended hearing.

3. That’s clearly an error for order 17, and I order that to be corrected. I substitute 17 for the figure 1 appearing at paragraph 20.

4. Order 17 ordered that he file and serve the response affidavit and supporting notice of risk within 14 days of that order and said that if he failed to comply with that order, order 22, the matter may proceed by way of an undefended hearing. The father was present when that order was made on 2 May.

5. The father did not appear on 13 June and it was not suggested that that was anything other than a deliberate choice by him. The mother’s affidavit filed on 24 July, which annexes various other affidavits (which is not a correct practice) annexes a letter dated 20 April 2017, admittedly before the orders of 2 May, which is a long letter to the Registrar of the Family Court of Australia, where he says that he was agreeing to the mother having custody of the child and consenting to property orders.

6. He was anxious that those property orders be signed off, to use his phrase, “as soon as possible”. The letter, in its terms, does not say that the father would not appear on 13 June but I think I can infer from his letter that he wanted nothing further to do with the proceedings, so deliberately chose not to appear on the date.

7. It followed that orders were made in his absence on 13 June 2017 which gave the mother sole parental responsibility for the child, subject to the requirement for her to keep the father informed about the child and also subject to written permission to the contrary; restraining the father from approaching or contacting the mother or child or attending the child’s school; coming within 200 metres of the residence of the mother or the child or emailing or posting to the mother except to advise her of his email address or postal address.

8. It is common ground that X has not seen the father, perhaps with the exception of one brief occasion, since before the orders of 13 June. In other words, for a period in excess of two years. This current application was filed by the father on 11 April 2017. In his application he seeks orders that the child continue to live with her mother but seeks orders that she spend half of each school holiday period with the father and that they otherwise communicate by Skype or whatever appropriate means.

9. The father is living in Town A in Queensland and the mother and X live here in Darwin. The father is proposing that X spend holiday time with her father in Town A.

10. The father’s mental health has been a significant factor. On 2 May 2019, I made an order for the preparation of a child inclusive family report. A memorandum was prepared on 12 August 2019 by a family consultant. I will not refer to all of the matters there but the mother presented as scared of the father and alleged a significant history of family violence and abuse against the father. She also referred to his mental health being a significant concern.

11. The family consultant addressed the mental health issue in some detail, and I will read what she said under the subheading “Mental Health”:

    This appears to be a significant factor of risk. Ms Brunson reporting that the father has a significant history of compromised mental health and has been diagnosed with a bipolar disorder.

    I interpolate that that is not an issue; I think the father concedes that.

12. To continue with the memorandum:

    Today the writer observed that Mr Jantz appeared significantly psychology unwell. He presented to his interview with what appeared to be a quite serious fresh wound to his forehead.  His wound appeared to have been dressed; however, the dressing was saturated with blood and the blood was smeared and congealed across his forehead, down his nose and under his eye. Mr Jantz had a strong smell of blood and unwashed body odour to his person.  Mr Jantz reported that he had been “kicked out” of his hotel, but would not divulge any further information around the circumstances of his presumed assault, nor would he disclose the name of the hotel.

    Mr Jantz appeared to be disoriented and agitated, and seemed to struggle staying focused on the issues, at time shaking, and leaning forward with his eyes drooped downwards as though he was about to pass out. Due to Mr Jantz’s presentation, the writer was concerned about conducting this interview as it appeared that he may pass out or become quickly agitated.

    Upon questioning Mr Jantz about his mental health, he reported that he was under assessment for autism spectrum disorder and Asperger’s syndrome, and asserted that he did not see what his mental health had to do with him spending time with X. Mr Jantz was very much focused on his perception of the unfairness of his matter, that his rights as a father had been violated, and that provision was not made for him to spend time with X today.

13. The family consultant then went on to describe her interview with X, who essentially said that she was worried about her father and worried about the prospects of abduction. She said X referred to episodes of violence where the father had been a victim and apparently hospitalised. X said, in effect, that she felt secure with the mother and very happy living with her and was concerned about inappropriate communications from her father- a reference that perhaps suggests that X has been exposed to some of the issues in this case that perhaps could have been avoided. Nevertheless, X was ambivalent about the prospect of spending time with her father. In these circumstances the family consultant saw no reason why an observation of the meeting between X and her father would have been of any assistance for the family consultant and in this instance recommended that the present orders remain unchanged.

14. Mr Ould, for the father, frankly acknowledged that there were serious mental health issues concerning the father and he proposed that this Rice & Asplund hearing today be adjourned in order for Mr Ould to seek legal aid to obtain a psychiatric assessment of the father.

15. That was an appropriate submission from Mr Ould and any other submission would have flown in the face of reality. The question on a Rice & Asplund type hearing is whether there is information before the Court that would indicate that it was in the best interests of the child that there be some change in orders or that it was on the cards that there would be a change in orders to accommodate the best interests of the child.

16. On the material that’s in front of me at the moment, I am satisfied that there is no material that would suggest that it was on the cards that there would be a change of order. On the contrary, the material before me suggests that the current orders are entirely appropriate.

17. If I were to accede to Mr Ould’s suggestion that I adjourn this matter, effectively part heard, in order for him to seek legal aid funding, as he said he would need to do, for a psychiatric assessment, I am not satisfied that, assuming legal aid was forthcoming, that there is a real prospect, given the clear history of mental health issues, the disturbing presentation to the family consultant and the evident inability of the father over a period extending more than two years now to address the real issues in the case, that is, his mental health, that there is a great likelihood of any material being forthcoming that would lead the Court to conclude that it was on the cards that there would be a change of orders. In short, if I were to accede to Mr Ould’s application or submission perhaps, I am not satisfied that it’s likely that there would be any different outcome.

18. The other factor of course is that the matter was set down for a Rice & Asplund hearing today in May and this is now nearly four months later. Where issues ought to have been identified at an earlier point, it was always open to the father to seek to adduce evidence about the main issue, that is, his mental health, and, indeed, evidence of a mental health condition that did not give rise to concerns about his ability to care for a child or have a child see him or spend time with him. The failure to do that over almost four months is something that I can take into account.

19. I think it is significant that these proceedings have been re-agitated. It is, I think, something that courts are aware of, that repeated litigation generally speaking can be assumed to be deleterious to the welfare of the children, or of a child as in this case, because it is stressful, and even distressing, for all concerned, particularly for the mother and, I suspect, the child, who it seems has already been exposed to aspects of the dispute, aspects of the issues and who has attended the Court to speak to a family consultant. I am not satisfied that a further adjournment is in the interests of the child nor is it fair to the mother.

20. If the father were in a position to provide some evidence that would be likely to lead to a different outcome, that is, evidence that he was mentally healthy, and that it was in the best interests of the child, having regard to section 60CC(2), in particular, that her right to a meaningful relationship with both parents was not outweighed by the concerns in section 60CC(2)(b), that is, that she not be subjected to harm or neglect, emotional or psychological, then he can do that. However, this is a case where I am concerned that all the evidence points to section 60CC(2)(b) being of real concern.

21. For those reasons, I dismiss the application.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  16 September 2019