K and D - [2006] FMCAfam 519

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & D

[2006] FMCAfam 519

FAMILY LAW – Leave of the Court required to bring further parenting proceedings – father suffering from illness.

Family Law Act 1975 (Cth), ss.118, 60B, 60CA, 60CC
Family Law Rules, r.11.04

Rice v Asplund (1979) 6 FLR 570, FLC 90.725
Zabaneh v Zabaneh (1986) 11 FLR 167, FLC 91.766

Applicant:

DMK

Respondent:

KMD

File Number:

NCM1060 of 2003

Judgment of:

Coakes FM

Hearing date:

25 September 2006

Date of Last Submission:

25 September 2006

Delivered at:

Newcastle

Delivered on:

26 September 2006

REPRESENTATION

Applicant in person:

DMK

Respondent in person:

KMD

Solicitor for the Independent children's lawyer

Mr Foat

Solicitors for the Independent Children's Lawyer:

Burgess Foat

ORDERS

That the application filed by the father on 23 February 2006 seeking an interim order for leave to bring an application for Parenting Orders is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM1060 of 2003

DMK

Applicant

And

KMD

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Edited from the Transcript)

I am now delivering an ex tempore Judgment following the hearing of this matter yesterday.

Introduction

The father would like the opportunity to re-establish his relationship with the children. He saw them last on 30 January 1999 following an earlier Court order that he see the children. He did see them briefly for the family report interviews on 19 November 2003, but has not seen them since. In effect he asks the Court for permission to bring a fresh application.

Background

The father is 38 years of age, he lives in Newcastle. He told me yesterday he has recently obtained some employment and he has not, as I understand his case, re-partnered. The mother is 36 years of age, the mother married in April 2003 one RD, they continue to live together and they have one child of that relationship, LD, who was born on 25 May 2000.
The parties commenced cohabitation in about April 1990. The evidence establishes there were frequent separations before the final separation occurred in October 1997. At that time, the mother and the children left the father.
The two relevant children the subject of these proceedings are SSD, she was born on 2 May 1991 and she is now 15 years and 4 months of age and her younger brother, BMD who was born on 24 July 1994 and is now 12 years and 2 months of age.

Previous parenting proceedings and orders

There have been a number of previous parenting orders made and it is appropriate that I consider those. I should add that Mr K, during the course of his submissions yesterday, asked that I read all the material on the file and I have acceded to that request since I think it is important in his case. Consequently, there are three files, I have read all the various affidavits filed and the family reports, with the exception of the affidavits of Mrs B for the reason that she did not become a witness ultimately in the father's proceedings and he does not seek to suggest that he has a continuing relationship with her which seems to have been of short duration.
On 22 December 1998, consent orders were made at Wallsend Local Court that the children live with the mother, that the paternal grandmother, RFK, be joined as a party to the proceedings with the father to have defined contact with the children on Christmas Day 1998 from 3 pm to 6 pm, and from 12 noon to 4 pm on the 2nd, 16th and

30 January 1999. There was a further order for some telephone contact on Tuesdays and Thursdays. All the physical contact was to take place in the presence of the paternal grandmother, and if the mother so wished, also the mother.
On 30 January 1999, which was the last occasion of contact pursuant to those orders, an incident occurred between the mother and the father. It serves no useful purpose for me to look at the various allegations of what occurred on that occasion, suffice to say, contact had occurred at KFC in Newcastle and an incident occurred on the foreshore and that was the last time upon which the father saw the children.
Those proceedings were transferred, as I understand it, to the Family Court in Newcastle. On 29 March 1999, a Separate Representative was appointed. On 28 June 1999, in the Family Court of Australia in Newcastle, and pending further order, an order was made that the children have no contact with the father. Contact orders made at Wallsend Local Court were discharged and a further order was made in these terms:
“that if the father submits himself for examination by a medical expert nominated by the Children's Representative and that expert advises it is safe for the children to have contact with their father on the same basis pending the final hearing, then either the Children's Representative or the father may apply to relist on 14 days notice.”
The father admits that shortly after those orders were made, he travelled to Queensland, apparently to avoid New South Wales Police executing outstanding warrants for his arrest.
On 21 October 1999 in the Family Court, the father's application which had been filed on 18 December 1998 at Wallsend Local Court was dismissed consequent upon there being no appearance by the father.
On 11 July 2001, the father's Form 3 further application for parenting orders which had been filed on 1 May 2001 was dismissed for want of prosecution and again in the Family Court.
On 19 June 2002, the father was admitted to James Fletcher Hospital and was discharged on 5 August 2002 and placed on a Community Treatment order.
On 1 April 2003, the father, then represented by a lawyer, filed in the Federal Magistrates Court in Newcastle, an application for parenting orders for supervised contact at Rainbows Children's Contact Centre on each alternate Saturday for two hours for a period of two months, then enlarging to four hours and then to six hours and with the father to have other contact as agreed and telephone contact on birthdays.
On 28 May 2003, the mother filed her response seeking that the father's application be dismissed.
On 12 November 2003, a Separate Representative was appointed for the children and the matter was listed for a final hearing on 15 December 2003.
In mid-November the first family report interviews were held with Ms Hungerford and on 8 December 2003, her report was published.
On 15 December 2003, orders were made, pending further order, that both parents enrol in and attend and complete various parenting courses and also attend upon Ms Holmes for ongoing therapeutic counselling to include the children, parents, the paternal grandmother and the mother's husband at the discretion of the counsellor. It seems that counselling did not occur.
On 4 June 2004, Ms Hungerford saw the parties again and the children for the purposes of the second family report. On 29 June 2004, that report was published. I take into account the whole of the first and second report prepared by Ms Hungerford.
On 14 December 2004, in this Court in Newcastle, final orders were made by consent, namely that the children reside with the mother, the children have contact with the father on the third Saturday in June 2005 between 9 am and 1 pm and to occur at the same time each year after that and with further contact to occur on 23 December 2005 between 9 am and 1 pm and on the same occasion each year after that, in other words, two very short periods of contact annually.
Those periods of contact were required to be supervised by an employee of the Hunter Mental Health Service being a registered nurse or assistant in nursing and as nominated by that service and in this regard the father was to do all acts and things so as to make available such employee of the Hunter Mental Health Service for the purposes of supervision. It is common ground that the father could not arrange for this to be done and it is common ground that such contact has never occurred consequent upon those orders.
Other orders were made on that occasion imposing obligations upon the mother. No useful purpose is served by recounting those orders, but I take them into account.
On that same day as part of the same orders, an order was made in these terms, that is Order 8:
“that other than for the purposes of an application for contravention of these orders, the father be restrained from bringing any further application in respect of the children without first obtaining leave of the Court.”
Order 9 is in these terms:
“that the father is restrained from approaching or contacting the mother or the children and/or the residence of the mother, except during periods of contact.”
On 17 May 2005, the father, representing himself, filed a further application in this Court seeking final orders under three alternate scenarios. The first, gradually increasing unsupervised contact daytime and then alternate weekends Saturday into Sunday and after six months, alternate weekends Friday into Sunday or longer periods with gradual daytime contact and telephone once per week supervised by Relationships Australia or nine months of two hours once per month and telephone once per week with that contact to be supervised by VB.
On 9 May 2005, Donald FM, in this Court, made an order for a Separative Representative to be appointed.
On 3 June 2005, the mother filed her response seeking a dismissal of the father's application.
On 29 June 2005, the matter was transferred to my docket for the first time because Donald FM was either unable or disqualified from further hearing the matter. The father appeared in person unrepresented. The mother appeared by telephone. The children were represented by Mr P Hamilton a Solicitor. Leave was granted by me on that day for the father to make an oral application to bring an application for leave to bring a further application in relation to the children. The father had not sought such Order formally. It seemed to me appropriate to give the father that leave to enable the proceedings to be heard as soon as possible.
The leave application was listed for hearing at 2.15 pm on 20 July 2005 to enable some directions to be satisfied about documents. The matter was also adjourned to 7 July 2005 at 10 am for a telephone directions hearing.
On 7 July 2005, the father did not appear, and was not represented by a lawyer. Mr Hamilton, the appointed Children's Representative appeared in person and the mother appeared by telephone. I made orders adjourning the matter to 10 am on 31 August 2005 for directions.

I vacated the hearing date of 20 July 2005 and was informed that the father was in custody. I granted Mr Hamilton, as the Children's Representative, leave to withdraw and I made a fresh order pursuant to s.68L for a further Separate Representative to be appointed for the children. Leave was granted to the father to relist the matter after

17 August 2005 and before 31 August 2005 and appear by telephone.
On 31 August 2005, there was no appearance by the father. I dismissed his application filed 17 May 2005 for want of prosecution and made an order that the solicitor for the Children's Representative notify the children in writing of those orders and the reasons for such orders.

I made a notation on those orders that the father was required to obtain leave in accordance with Order 8 of the orders of 14 December 2004 to bring any further application in respect of the children. I made arrangements for a copy of those orders to be sent to the place where the father was then detained.
On 23 February 2006, the father filed the application which is presently before me. In that application he seeks, by way of interim relief, that leave of the Court be granted to file that application and by way of final orders he sought to discharge orders made on 14 December 2004 and that the frequency of visitation be increased to monthly contact.
In his affidavit of one page filed the same day, he showed his address and occupation then as "Pensioner" and in paragraph 2, set out these words:
“Supervision by Relationships Australia Broadmeadow or Newcastle Mental Health Supervision arrangements required by order.”
On 30 March 2006, when the father was present and the mother appeared by telephone, I made a further order for separate representation of the children and adjourned the matter to 19 June 2006 for a final one day hearing in relation to the father's application for leave. I made some directions as to filing of documents and in particular, made an order as follows:
“that the father is to file and serve an affidavit by his treating psychiatrist and any other medical practitioner from whom he is receiving treatment in relation to his current mental health, compliance with any current medication regime and his mental stability.”
The matter came before me again on 19 June 2006 when the father appeared in person and Mr Foat appeared on behalf of the children. Consent orders were made in relation to the father communicating with the Separate Representative, and I made an order for a family report and adjourned the matter to 9.30 am yesterday, 22 September 2006 for a one day final hearing with further directions as to filing affidavits.
The purpose of ordering the family report was to ascertain the father's proposals as to his resuming contact or spending time with the children and his perceptions of what was in the children's best interests and any concerns he had about that. I also ordered the family report for the reason that I sought through the counsellor, the mother's perceptions and her wishes, and most importantly, the children's wishes and their attitude and perceptions towards resuming a relationship with their father, given the long period of absence.
That report, and there is no magic about a family report by itself, it is just another piece of evidence, was sought principally to assist the Court as to whether there was a strong foundation to consider granting the leave the father seeks. Subsequently, interviews were held by Ms Taylor and the report was published on 20 September 2006.

The orders of 14 December 2004

It is necessary to consider the basis upon which Order 8 was made. The father was represented by a solicitor, Mr Reilly. The mother was unrepresented. The Children's Representative was represented by counsel. Those orders have not been the subject of any appeal and are current.
Section 118 of Family Law Act states as follows:
(1)The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings;
(b)make such orders as to costs as the Court considers just;
(c)if the Court considers appropriate on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act of a kind or kinds specified in the order and an order made by a Court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2)A Court may discharge or vary an order made by that Court under paragraph 1(c).
Rule 11.04 of the Family Law Rules, states as follows:
(1)If the Court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a)dismiss the applicant's application;
(b) order that the applicant may not, without the Court's permission, file or continue an application.
(2)The Court may make an order under sub-r (1):
(a)On its own initiative;
(b)On the application of a party, the Family Court of Australia, a Registry Manager or for the Family Court of a state, the Executive Officer.
(3)The Court must not make an order under sub-r (1) unless it has given the applicant a reasonable opportunity to be heard.
The Court also has inherent power to make an Order of this nature.
There is no reference in the orders made on 14 December 2004 to Order 8 being made upon the basis that the Court was satisfied that the father's application was frivolous or vexatious. It seems to me that the most likely reason for such order being made with the consent of the parties and pursuant to Terms of Settlement is a number of recommendations made by Ms Hungerford in her second report of 22 June 2004. Those recommendations are set out in paragraphs 45 to 50, inclusive. Number 50 is in these terms:
“If the Court ordered no contact, then it would be beneficial for the children if the father were made to ask for the leave of the Court to put on future applications for contact.”
Paragraph 49 is in these terms:
“If the Court ordered no contact, this would be consistent with the children's stated wishes and it would maintain the status quo.”
It seems to me that Order 8 was made either pursuant to R11.04 of the Family Law Rules and pursuant to rule 1.05(2) of the Federal Magistrates Court Rules, or pursuant to the inherent power of the Court to control its own proceedings.

The issues

It is necessary then for me to consider the issues in the father's leave application. It seems to me that these are they: the father is asking the Court to consider afresh his relationship with the children. Final parenting orders were made on 14 December 2004 and to which I have referred. I must decide whether there is a substantial or significant change of circumstances to warrant a reconsideration of the issue of the father spending time with the children; see Rice v Asplund (1979) 6 FLR 570, FLC 90.725 and Zabaneh v Zabaneh (1986) 11 FLR 167, FLC 91.766.
The father, in effect says to me, both in his affidavit material and his submissions which he made yesterday, that he has a number of changed circumstances which warrant consideration; they are his health and his stability, that he has a driving licence, and that he can work. He submits also that the mother does not encourage the father's relationship with the children. He submits also, in effect that the mother has further alienated the children from him.
When considering an application for leave in a case such as this, the Full Court in the case of Zabaneh, to which I have referred, said this on page 172:
“When one comes to consider whether leave should be granted to institute proceedings, particularly in Family Law matters, one has, at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
The welfare of children may ultimately demand that issues concerning access, custody and so forth be reconsidered. But only when there is some evidence of an underlying change in circumstances, whether that be in the attitudes of the party or needs or circumstances of the children. The fact that time has elapsed or a considerable time may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs and their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of Court proceedings to the extent that they have to be reassessed every few months or every year by Court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time where there are such changes in the attitudes of the parties or such evidence relating to the children and their needs and attitudes towards their parents that it would be reasonable to reconsider access.
The difficulty is that the husband in a case such as this, may have no direct evidence to put before the Court relating to the children and their needs, simply because he has had no contact with them over the years. So that if he is to come forward with a chance of asking for, and being granted, leave to institute proceedings, he really has few options but to rely upon his own state of mind and to put forward some evidence of change in his own attitudes towards the matter, his attitudes towards his family; to his children and his wife. He might also put forward some changes in his behaviour pattern in regard to proceedings before the Court. Virtually they are the only matters that he would be able to put forward.”

Evidence as to the father's health

Insofar as the evidence is concerned, in addition to the affidavits which I have read overnight to which I have referred, I have also read very carefully and taken into account each of the exhibits tendered by both the father and the Separate Representative in their cases. In particular, I have had regard to the medical evidence and in particular, exhibit CR6, being a number of documents from James Fletcher Hospital and exhibit CR4, being the records of Dr A Clarke which incorporates a number of other reports from psychiatrists or psychiatric registrars or members of the Mental Health team. That exhibit I have also read carefully and taken into account those documents within exhibit CR4 which the father asked me to read and became exhibits in his case.
The evidence establishes the father suffers from an illness. The father has been admitted to a number of hospitals between 1996 and 2005 as an involuntary patient and detained as a mentally ill person within the meaning of s 33 of the Mental Health Criminal Procedure Act 1990 New South Wales and Chapter 3 of the Mental Health Act 1990 New South Wales.
There have been a number of other diagnoses of his illness revolving around Paranoid Schizophrenia. These are set out in the family report of Ms Taylor released on 20 September 2006. The father saw Dr Miller, a consultant psychiatrist. His report of 24 July 2006 is annexed to the father's affidavit filed 2 August 2006. It says:
“Mr K was referred to me by his GP, Dr A Clarke.

I initially saw him on 3 July 2006, I reviewed him again on 21 July 2006 and I am due to see him again in September. He is currently taking Zyprexa 10 mg daily, he's eager to resume contact with his children, he is eager to resume contact with the children and be involved in employment opportunities again and I will continue to help him as he requires.”
I note in passing this report does not meet the criteria of the order I made on 30 March 2006 in relation to the father putting on medical evidence in relation to his health.
Attached also to the father's affidavit is a report by Barbara McDonald, the family counsellor. That is a report of 1 August 2006 and is in these terms:
“I have been counselling DK for some time now and he has made progress. He seems very stable and is on Zyprexa 10 mg daily.

I believe D is in a good space to see his children due to the work he has done in counselling and I recommend that he be given a chance to interact with them.”
That also does not satisfy the criteria of the order I made on 30 March 2006. I do not reject those two reports because they are not in affidavit form. They do not set out though, in my view, sufficient evidence for me to be able to conclude that the father is taking medication or is otherwise not required to take medication, or otherwise recovered from his illness.
Exhibit CR3 comprises the records of Dr John Miller the psychiatrist to whom I have referred. As part of those exhibited documents, there is a copy of the letter of 4 July 2006 from Dr John Miller to Dr A Clarke, the father's treating medical practitioner. The psychiatrist says this in his report:
“Thank you for referring this 38 year old man who has recently finished a CTO and stopped his injectable form of Respiradol. He has been taking this for the past six months after admission to Rozelle following a period in gaol for assault. He is hoping to regain contact with his children he has not seen since 2003 and he is requesting a letter to say that it is appropriate to do this. He also wants to resume his driving licence and also heavy vehicle licence so he can drive buses.
It was difficult to get a clear history from D, but he remains convinced that he has never been unwell and has always been misunderstood by the psychiatric system. His thoughts were difficult to follow at times indicative of some thought disorder and there was certainly a paranoid flavour to his thinking. I am obviously concerned about his future wellbeing, particularly his difficulty in understanding the need for ongoing medication and I have asked to see him again in two weeks time, but I am doubtful that he will comply with further treatment. I am also keen to contact Mental Health Services regarding their involvement with him and I will keep you informed of how he goes.”
Subsequently, the father made a request of Dr Miller to see him with the children, that did not occur because the family report had overtaken the father's request.
There is no other evidence from Dr Miller presented either by the Children's Representative or the father.

Evidence as to the father's criminal history

The father's criminal history became exhibit CR8, which the father conceded was correct as to the entries recorded, includes a number of charges and convictions for assault. Although admitting the correctness of the entries the father denied he was liable for many of the matters referred to in the charges. In particular, there are entries for 29 June 2005. The significance of 29 June 2005 is that was the day upon which the matter had come before me earlier in the day.
The charges against the father arising from 29 June 2005 were: assault occasioning actual bodily harm, use intimidation and violence to unlawfully influence a person, stalk intimidate with intent to cause fear, physical or mental harm and there were two counts in respect of each such charge. The police records note that pursuant to s.33 of the Mental Health Act, he was taken to hospital in respect of each charge.
The police records were tendered by consent and in particular a number of COPS records which together became exhibit CR2.
The significance of 29 June 2005 is a matter to which I have referred. The COPS entries record events following the appearance of the father and the Independent Children's Lawyer, Mr Peter Hamilton before me earlier that day when the father's application for leave was adjourned to 7 July 2005 for hearing. It is recorded that at 1.15 pm that day, the father went to the offices of Mr Hamilton and confronted his receptionist and said:
“I can hold a gun to your head right now, but when I come and put a tomahawk through your dad's head, don't be surprised.”
It is reported that Mr Hamilton spoke to the father asking him what he wanted and when the father punched Mr Hamilton in the face, breaking his reading glasses and causing bleeding to his face, it is reported the father grabbed Mr Hamilton by the shirt and dragged him into the street. It is reported that at 1.50 pm, some 35 minutes later, the father returned to Mr Hamilton's office. The receptionist, whom I understand from the father's submissions, was Mr Hamilton's daughter, is reported in the COPS records to say that the father yelled at her:
“Open the door you fucking slut, I'm going to kill you, six chops to the head and you're fucking dead. Don't think I'm kidding, I've got a gun in my right pocket. I'm going up to the Court to kill C and then I'm coming back to shoot you in the head and put a tomahawk through your dad's skull.”
It is reported that the father also made reference to knowing where Mr Hamilton lives because he found it in the telephone book, and the father then left. Later that evening, the father was arrested. Consequent upon that, the father was detained, it seems, pursuant to s.33 of the Mental Health Act.
Ms Taylor's report in her family report in paragraph 19 says:
“The father spoke at length about past events where police had been called and he had been arrested or placed against his will into the mental health setting. He denied he assaulted a previously appointed Independent Children's Lawyer, but agrees he was convicted of assault and was incarcerated for a period of time under the Mental Health Act.”
During the course of yesterday's hearing, the father submitted that he was accused of having a gun at the time with Peter Hamilton and submitted he had an alibi.
The father submitted yesterday that he got five months for a "push and a shove in a doorway" and asserted Peter Hamilton was aggressive toward him. I find on the evidence that the father has minimised the seriousness of this incident. The father has exhibited no insight as to the effect of his conduct on Mr Hamilton and his daughter.
The evidence establishes that since December 2004, the father continues to be prone to violence and threatening behaviour. The evidence establishes the father has no insight into the effect of his behaviour and is unable to control his behaviour at times.
Yesterday, the father submitted to me:
“I won't take the tablets to see the children, I'm under no obligation by law to take medication.”
The father also submitted:
“The children don't realise that the medication is harmful and could cause heart attacks, stroke. I could drive off the road and hit a pole.”
The father has educed no evidence from a psychiatrist as required by the earlier order that his illness is under control and that he is not a risk to his children.
Illustrative of the father's difficulty, it seems to me, in coming to terms with his illness is exhibit F14 which the father exhibited yesterday. It is a letter written by him, he told me, some two or three weeks ago and which was delivered to one of his former solicitors, Mr Glen O'Sheades in Mayfield, he told me he delivered it to his office. In that letter, and it is addressed “Attention Glen” he says:
“I'm writing this letter to express that I hold you personally responsible for me not seeing my kids for the last nine years. In 1998 I presented to you, you were asked to do a job and you would eventually be paid. I don't subscribe to the view that the courts and the Family Court's view that we let the mother play the part of being a victim et cetera. Once the relationship is over the kids should see their biological father. In my case, New South Wales Police Howard's –” the following word I cannot read.
The letter continues
“the way to the Police Minister and Commissioner are dishonest and it's personal. New South Wales Health and New South Wales Police need to be gaoled for putting me into a psych hospital in '96 and misrepresenting my behaviour to prevent a complaint about Mental Health workers KB and CJ who thought they would be sacked for doing a false statement about my activities while living and visiting in Tamworth 1995/1996.”
I am not satisfied on the evidence before me that the father takes his prescribed medication to assist with the management of his illness.

I tend to the view that the father, on the evidence before me, is reluctant to take medication. The statement by Dr Miller, in the annexure to the father's affidavit that he is taking Zyprexa 10 mg daily is no doubt, on the father's instruction to the doctor.
In the family report, paragraph 16, the father reported to Ms Taylor that he does not take medication on a daily basis, rather he self-medicates with the medication when he feels agitated. He reports the last time he took this medication was a couple of weeks ago.
In paragraph 17 of the same report of Ms Taylor, Ms Taylor says this:
“When it was suggested to the father that medications such as Zyprexa were not designed to take on a “as needed basis” as the levels in the blood do not reach the desired therapeutic level if not taken regularly, the father disagreed and then became somewhat aggressive and accusatory saying ………”
and then made some personal comments about the counsellor which it is not necessary for me to repeat during the course of this hearing. They are a matter of record in the family report which is part of the evidence in these proceedings.
The father has been the subject of several Community Treatment Orders (CTO) following discharge from hospital. There is no Community Treatment Order in force at present. The benefit of a Community Treatment Order is that a patient who is the subject of a treatment order is required to undergo psychiatric treatment prescribed by a medical practitioner whether he likes it or not. The treatment may involve compulsory administration of medication and can continue for a period of up to six months. A Community Treatment Order can be made only when a person is found to be mentally ill, and the administration of medication enables the person so diagnosed to manage the illness.
Insofar as the children are concerned, turning to the second aspect which I am required to consider and for the reasons I gave earlier, the father has had no opportunity to educe evidence concerning the children himself, he has not seen them for a long period of time. The family report was appropriate in that context.

The legal principles

Insofar as the legal principles are concerned, if leave were granted, I or this Court or another Judicial Officer is governed by the principles set out in the Family Law Act recently amended in July of this year. In deciding whether to make a particular parenting order, the Court must regard the best interests of the children as the paramount consideration, s.60CA.
In determining what is in the children's best interests, the Court must also consider certain matters in s.60CC(1) and they are called the primary considerations and the additional considerations together set out in the section. There are two primary considerations: the first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the children from physical or psychological harm and being subject to or exposed to abuse, neglect or family violence.
The Act, as now amended, indicates that these considerations are to be considered as having particular importance, they are primary. And as a note to s.60CC points out, are consistent with the first two objects of

Pt VII as stated in s.60B. Accordingly, in this Judgment, I have given those matters very careful consideration.
I must also take into account the 13 additional considerations in s.60CC(3) and I must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
I must also ensure that any order I make is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount: s.60CG.
I am also guided by s.60B which sets out the objects of the Act in dealing with children and the principles underlying. I take those principles into account, especially the principle that children have a right to know and be cared for by both parents, except when it is or would be contrary to a child's best interests.
There are some other provisions of the Act which I will consider. But those are the legal principles which would apply if leave was granted and the parenting case were brought before this Court.
It consequently then becomes necessary for me to consider how those legal principles apply in determining what parenting orders would be most likely to promote the children's best interests which by law are to be regarded as the paramount consideration.

Discussion

So far as concerns the primary considerations to which I have referred, my conclusion as to those considerations is this: in the circumstances of this case, the children have not had any meaningful relationship with their father, at least since 30 January 1999 and probably from an earlier date.
I am not able to conclude from the evidence before me that a meaningful relationship is now possible between the children and their father. Second, there is a need to protect the children from being exposed to the risk of family violence by the father which means conduct, whether actual or threatened that causes fear or the children to be apprehensive about their personal wellbeing or safety.
As to the additional considerations to which I have referred, I consider that the most significant of these, as they relate to the father's case now brought before me, are firstly the children's views and which I give very considerable weight. Section 60CC(3)(a) says this:
“Any views expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks relevant to the weight it should give to the child's views.”
In Ms Taylor's report, I have particular regard to these paragraphs: paragraph 44 which relates to S and I quote from part of paragraph 44 as follows:
“Currently, she still reported feeling angry with her father, but her reasoning has changed with maturity. She now claimed to understand that the father suffers from a mental illness, but is of the opinion "He's had a choice to take his medication and act differently but he chooses not to take it, I can't make him take it, it's up to him". She went further to reason "That if he chooses not to take his medication, then in a way he's choosing not to see me".”
Paragraph 45 says this:
“When asked when she is an adult and if the father chose to take his medication, would she spend time with him, S said "I'm not sure, he's taken his medication before and then stopped again. I'm really not sure". S then said "I feel bad for him that he doesn't know he has an illness, he doesn't realise the effect it's had on me, but it has and there's no getting away from that.””
Paragraph 47 it is reported that S said this:
“S stated she tries not to be anxious, that she might come across her father in her everyday life, but admits to having heightened anxiety when she is in an area of Newcastle where her father might be.”
Paragraph 51, S is reported as saying that she does not want to have any contact with her father at all. It is quoted that she gave as the main reason, put in the context of her believing her father to be mentally unwell:
“He doesn't respect my opinions at all, he's always pushing for what he wants, not what I have said I need.”
Ms Taylor reports as follows:
“S was of the view that an order for her to spend time with her father as to her wishes would be appropriate as it would give her a feeling of control over the process.”
Ms Taylor reports in Paragraph 52 in part:
“She recognises that the father “has a choice” whether to acknowledge his illness or not and subsequently be compliant with treatment or not and she remains realistically estranged from him and angry with him that he does not have that insight. Her opinions and feelings appear to be genuinely hers and not opinions of others impressed upon her.”
As to B, Ms Taylor says this in paragraph 54 of the Family Report:
“He claimed to “understand it all a bit better now, it's his, that is the father's choice to take his medication and he doesn't, I can't change that, it's up to him”. B went further to say "If he really wanted to see my sister and me, he would take his medication and he could be a better person for my sister and me.””
In paragraph 56:
“B was asked if, in the future when he was much older and if the father gained insight into his behaviours if B would like to rekindle his relationship with the father, B gave this question much thought and said "I really couldn't say, I'd have to see how he was and how I was at the time”.”
Paragraph 58 when asked what his concerns would be if he did see the father in the street, he said:
“I would be worried about what he's going to be like, he might be in one of those states where he goes crazy.”
Paragraph 59:
“B reports he has spoken on a few occasions to his school counsellor and at other times to his school teacher about his worries and fears and about the father.”
Paragraph 60:
“B was asked if he had any clear views in regard to the father that he would feel comfortable with the Court, and subsequently the mother and the father being aware of, B said "Firstly, I want the Judge to know I will respect his decision whether I agree with it or not. I don't want to see him, the father, or have any contact with him whatsoever". B's views and opinions appear to be age appropriate in that he appears to have progressed from being acutely ambivalent about the father at the time of the last report, that is vacillating between anger and sadness to having a more mature view of the father's situation, but still puts the responsibility firmly at the father's feet to access help and be compliant with treatment in order to be a better person for my sister and me. B remains realistically estranged from the father and is disappointed that he does not have this insight. His opinions and feelings appear to be genuinely his and not opinions of others impressed upon him.”

I have taken into account the other factors I am required to consider under s.60CC, in particular the mother opposing the children spending time with the father. The father, in his submissions to me yesterday, perceives the mother to be the "dark one and the evil one". The father has not, in my view, and I find on the evidence, demonstrated that he has any capacity to understand the views put forward by the children which he has read in the family report. I take into account all the other matters I am required to take into account under s.60CC.
Insofar as the family report is concerned, Ms Taylor made certain recommendations as set out in paragraphs 68 to 70. No useful purpose is served in my recounting those, they are known to the father and to the Children's Representative.

Conclusions

I find there is no realistic prospect of the father succeeding on his proposed application for parenting orders. The prospect of success is a relevant matter. Ordinarily the Court will not undertake a detailed assessment of the likelihood of an applicant's success in circumstances such as these, unless it can be demonstrated that there is a high probability of either success or failure. In this case, the onus lies with the father to suggest and be able to establish that if his application were to proceed, there is a good prospect of success.
The father has not satisfied me he has a reasonable or even arguable basis for the Court to make the orders he seeks by way of resumption of the relationship with his children. I find nevertheless the father believes his application is bona fide. I find on the evidence that the father sincerely believes that it is appropriate for him to have a relationship with his children. I find on the evidence that the father, in all probability, loves his children. It was illuminating yesterday when the father, at one stage it seemed to me, during his lengthy submissions, indicated that he was hopeful that at a later time, when the children were older and adults and curious, they would seek him out and ask questions, “we have only got one side of the story, we should really talk to dad and see what his side of the story is.” In that way, it seemed to me, the father would be hopeful of explaining why he had not seen the children for a long time and why perhaps he had been ill, if indeed the father accepts he is ill.
In his submissions yesterday, it seemed to me the father wished to relieve the children of anxiety and not to place undue pressure upon the children as to their relationship with their mother, and wished to in effect not proceed with this application. When I clarified this with the father he told me that he did wish to proceed with his application and the hearing proceeded in the ordinary way.
On the evidence before me, I find the father is putting his interests first and not considering those of his children given their strongly expressed wishes. I find on the evidence the father suffers from an illness which affects his rational thinking. He is obsessed with authorities and holds the view that they are to blame at various stages for his present predicament. The father has not demonstrated he is a fit person to have contact, that he is not going to destabilise the family, that he is not going to upset the children or harm them emotionally.
It is not appropriate for the mother and the children to be put under any further stress with the anxiety, costs and uncertainty of further Court proceedings. I find on the evidence that there is nothing in the evidence before me that would justify a new hearing in relation to the children spending time with their father. I dismiss the father's application.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Coakes FM

Associate: Associate to Federal Magistrate Coakes

Date: 5 October 2006