Jenner and Zaback

[2016] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENNER & ZABACK [2016] FCCA 2025

Catchwords:
FAMILY LAW − Whether father’s mental health means he cannot have a meaningful relationship with the child − whether risk that the father may discover child’s location is such that Commonwealth Information Order should not be made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 67L, 67N, 67P

Applicant: MR JENNER

Respondent: MS ZABACK

File Number: MLC 2551 of 2008

Judgment of: Judge Phipps

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Dandenong

Delivered on: 16 August 2016

REPRESENTATION

Solicitor for the Applicant: Mr Taghdir

Solicitors for the Applicant: Taft Lawyers

The Respondent: No appearance

ORDERS

1. That the Initiating Application filed 3 August 2015 including the application for a Commonwealth Information Order is dismissed.

2. That a copy of this order and reasons for judgment be provided to the Department for Child Protection and Family Support, Western Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 2551 of 2008

MR JENNER

Applicant

And

MS ZABACK

Respondent

REASONS FOR JUDGMENT

1. The parties have one child, X born (omitted) 2007. The child lives with the mother following child protection proceedings in Western Australia.  A report dated 13 August 2015 from the Department for Child Protection and Family Support, Western Australia shows that the child is in the full-time care of the mother and stated the child was taken into provisional protection and care on 11 October 2011.

2. The father filed an Initiating Application on 13 October 2015 in which he applies for an order that the child live with him. He does not know where the mother and child live and so applies for an order under s.67N of the Family Law Act 1975 (Cth) that the Business Manager of Centrelink provide to the Registrar of the Federal Circuit Court of Australia at Dandenong information about the location of the child that is contained in or comes into the records of Centrelink. He applies for orders pursuant to s.67P that the address be provided to the applicant’s solicitors so that a process server may be engaged by the solicitors to serve the Initiating Application and supporting affidavit upon the respondent.

3. In his affidavit in support the applicant alleges that the respondent mother is a paranoid schizophrenic and it causes him great concern for the child and her well-being.  The father annexes a copy of an order made in the Children’s Court of Western Australia at Perth on 23 April 2012.  That made a protection order for the child for two years.

4. Attached to or part of the order is a written proposal for the child prepared by the Department for Child Protection and Family Support, Western Australia. The report shows that the child has been placed with the mother.  The report also shows that the father had undertaken a psychiatric assessment after initially entering hospital voluntarily on 2 March 2012.  He was then sectioned under the Mental Health Act 2014 (Vic) on 3 March 2012. He was diagnosed with Delusional Disorder and Paranoid Personality Disorder. The report says that despite this assessment and treatment by oral antipsychotics the father refused to believe that he had a mental health disorder and refused to take his medication. The report says “at present he constitutes a risk to the safety and well-being of X and Ms Zaback”.

5. The report says that the child had been exposed to a transient lifestyle due to the father’s paranoia involving government officials.  The father made it clear that government officials are corrupt; he believes he was being targeted and as such he sought isolated places to set up home with his ex-partner and child.  It goes on to detail how this has affected the child.

6. The report states that to date, the father had vigorously opposed the Department’s interventions in his family.  The report sets out attempts for the child to have contact with the father.  As to this contact it concludes that the father’s conduct during the proceedings served to increase the Department’s protection concerns for the child.  It sets out the things he needs to do if he is to work towards contact with the child.  He must comply with his medication regime, undertake a parenting capacity assessment, undertake not to approach the mother if the child is in her care and undertake not to approach or attempt to contact the child without supervision by a person approved by the Department for Child Protection and Family Support, Western Australia.

7. The report says that the child is now thriving.  The mother has a diagnosis of Schizophrenia but is fully compliant with medication and there are no concerns for the child whilst in the care of the mother.  She has a very supportive family.

8. Following the commencement of this proceeding, the Department for Child Protection and Family Support, Western Australia provided a report in response to the Notice of Risk filed by the father.  It says that the father was admitted to the psychiatric ward of (omitted) Hospital twice in 2012.  His psychiatrist advocated for him but conceded that the father’s conduct was unlikely to change sufficiently to allow for positive contact with the child.  The report says that hospital records indicate that the treating psychiatrist was stalked and harassed by the father.

9. The report says that it is of great concern to the Department for Child Protection and Family Support, Western Australia that the father appears to have used short one-page “reports” from various mental health professionals to his benefit in previous Family Court of Australia proceedings.

10. The report says that the father initially rejected offers of contact with his daughter.  He repeatedly demanded the child be placed in his care or he be allowed unsupervised time with her.  Contact arrangements were made then cancelled when the father behaved inappropriately distressing the child.  The father consistently and aggressively refused to “negotiate” with child protection workers.  The report says that the father attended only one mention in the initial proceedings.  He was represented by three successive practitioners with grants of aid.  Each ceased after a short period.  By letter dated 25 May 2012 the father was banned from the (omitted) office of Legal Aid.

11. The father filed more than 33 affidavits in the Children’s Court of Western Australia.  He continued filing affidavits after being ordered to cease.  On 29 May 2012, 16 November 2012 and 13 March 2013 the father applied to the Children’s Court of Western Australia for a revocation of the protection order and for orders that X spend time with or live with him.  The first was dismissed at a pre-hearing conference and the second and third were dismissed at the first mention.  The report says the father has searched for the mother and child continually since the child came into care including by travelling around Perth and Victoria.  The child and mother were moved to another location for their protection.  The report says they will be moved again if this proves necessary.

12. The report says information from police is that the father had been charged with threats to kill as well as weapons charges.  The writer of the report says he has been informed that the father is currently threatening to bash and kill the ex-partner of a friend of the mother because the father believes the ex-partner knows where the child is and is refusing to tell him.  The father has threatened to kill anyone who prevented him from seeing the child.  The report says that given this behaviour, it is clear that the father is still unstable and presents as a threat to the child and the mother.

13. The report goes on to say that the child is doing very well, achieving well and that the mother is also doing well.

14. Section 67N(2) of the Family Law Act1975 (Cth) provides that:

    Subject to section 67L, a court having jurisdiction under this Part or section 111CX, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA, may make a Commonwealth information order if it is satisfied that information about the child's location is likely to be contained in, or to come into, the records of the Department or Commonwealth instrumentality concerned.

15. Section 67N of the Family Law Act1975 (Cth) is subject to s.67L:

    In deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

16. The best interest considerations are contained in s.60CC. The primary considerations are contained in subs.(2) and are subject to subs.(2A).

    (2)  The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

17. On 13 October 2015 when the application first came before me the report from the Department of Child Protection and Family Support, Western Australia dated 13 August 2015 meant that for the application to have any prospect of success a report on the fathers mental health was necessary.  I adjourned the application and made this order:

    That the applicant’s solicitor has leave to give a copy of the letter from Department of Child Protection and Family Support, Western Australia dated 13 August 2015 to the applicant’s treating psychiatrist or any other medical professional involved in the fathers care.

18. Following this order the father filed affidavits from Dr L, the father’s treating psychiatrist and Mr G, psychologist.

19. Dr L’s affidavit annexes her report dated 2 March 2006.  She says she has been the father’s treating psychiatrist since he has been in the community since 12 May 2015.  His first psychiatric contact was in 1998.  He has had multiple admissions to psychiatric units in Western Australia and Victoria and has, over the years, had diagnoses of Delusional Disorder, Schizophrenia, Schizoaffective Disorder and Paranoid Personality Disorder and substance abuse.  His present diagnosis is Schizophrenia and alcohol abuse.  He has had two episodes of inpatient treatment since Dr L has known him, the first to (omitted) Hospital from 26 August 2015 to September 2015.  His last admission to hospital was to the (omitted) Hospital from 5 September 2015 to 9 November 2015.

20. She describes his medication and then says that the father is reviewed by Dr L, Forensic Psychiatrist, as part of his Non-Custodial Supervision order as well as receiving medical reviews by psychiatric doctors at (omitted) Health.

21. She says she is unable to comment on the father’s ability to parent or potential to interact with his daughter.

22. The report from the psychologist, Mr G shows that the father attended counselling on nine occasions between 13 July 2015 and 4 April 2016 after being referred to him for Anxiety and Adjustment Disorder.  It described his presentation as having improved markedly during the course of his treatment and his diagnosis being positive.  It says he is taking an enthusiastic approach to the counselling sessions.

23. (omitted) Hospital is a secure forensic mental health hospital.  The fact that he was admitted there and at the time of Dr L’s report was subject to a non-custodial supervision order means that the father must have been before a court exercising criminal jurisdiction.  The father gives no information about that in his affidavit.  This is consistent with the Western Australian report about his behaviour.  This report refers to information from police that the father had been charged with threats to kill, weapons charges and that he was currently threatening to bash and kill the ex-partner of a friend of the mother because he believes the ex-partner knows where the child is located and is refusing to tell him.

24. The information about the father’s current mental health and behaviour shows that he is no better able to have a relationship with his daughter than he was in 2012, at the time of the Child Protection Orders in Western Australia.  Attempts by the child protection authority for the child to have contact with the father came to an end because of the father’s behaviour.  The father has not put anything before the court to suggest that his behaviour or his attitude to the child and the mother has changed.  The fact that he has been involved with the criminal justice system and was admitted to the (omitted) Hospital for two months from 5 September 2015 to 9 November 2015 suggests his mental health behaviour may have deteriorated.  It appears he is now less able to have a meaningful relationship with the child than he was in 2012.

25. The child protection reports show that the father is a risk to the child and to the mother.  The information about his current circumstances shows that he continues to remain a risk to the child.  He has actively attempted to find the mother and child’s location and the child protection authorities in Western Australia found it necessary to move the mother and will do so again if they think there is a risk that the father may locate their whereabouts. 

26. The making of a Commonwealth Information Order does not provide an address to anyone other than a Court Officer, the father’s solicitors and a process server. The protections around the provision of this information should mean that the father does not have access to it.  Given the father’s mental state and his determination to find the location of the mother and the child, including making threats to kill, any risk that he might obtain the address is too great a risk to the child to allow for such an order.

27. Given that the evidence shows that the father cannot have a meaningful relationship with the child and that any risk of him discovering the location of the child is too great a risk to take, both the application for the Commonwealth Information Order and the Initiating Application must, in the best interests of the child be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 16 August 2016.