LENSEN & LENSEN

[2019] FCCA 3831

FEDERAL CIRCUIT COURT OF AUSTRALIA

LENSEN & LENSEN [2019] FCCA 3831

Catchwords:
FAMILY LAW – The need to protect the children from physical or psychological harm – where there has been a decline in mental health – persistent breaches of an intervention order – failure to adhere to a community corrections order in relation to undergoing mental health assessments.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A)

Applicant: MR LENSEN

Respondent: MS LENSEN

File Number: MLC 6447 of 2019

Judgment of: Judge McNab

Hearing date: 4 December 2019

Date of Last Submission: 4 December 2019

Delivered at: Dandenong

Delivered on: 4 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Lococo

Solicitors for the Applicant: Lococo Legal Services

Counsel for the Respondent: Mr Grant of Counsel

Solicitors for the Respondent: David Gibbs And Associates

ORDERS

1. By 4.00pm 19 March 2020, the Applicant file and serve an affidavit:

   (a)setting out the steps that he has taken in relation to:

   (i)enrolling in and completing a Men’s Behavioural Change Program/Anger Management Program as recommended by Dr A in his report of 8 October 2019;

   (ii)engaging in the treatment and rehabilitation as required by the order of the Magistrates Court made on 1 November 2019; and

   (b)providing up to date evidence of his medical and psychological treatment.

2. Pursuant to s 68L(2) of the Family Law Act1975 the children X born in 2012 and Y born in 2015 (“the children”) be independently represented (with a request that David Edney of C E Family Lawyers be appointed) AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at ( and

   (d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.

3. The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Deputy Registrar of the Federal Circuit Court of Australia at the Dandenong Registry on 20 March 2020 at 11.00am.

4. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the conciliation conference, copies of:

   (a)an outline of case document in the form set out below in the trial directions;

   (b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

   (c)a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (d)written confirmation by each party or their solicitor that:

   (i)all relevant documents have been exchanged between the parties; and

   (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

5. In the event that the matter does not settle at the conference and the parties have not complied with orders 4 (a) to (d), the Registrar is directed to contact the chambers of Judge McNab, prior to the end of the Conciliation Conference, in order to urgently list the matter before Judge McNab for further directions and submissions with respect to costs.

6. The matter be adjourned to Federal Circuit Court of Australia at Dandenong on 2 April 2020 at 10.00am for Interim Hearing.

AND THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

2. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

3. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

4. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

5. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 6447 of 2019

MR LENSEN

Applicant

And

MS LENSEN

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This matter was previously before the Court on 31 July 2019.

2. On that occasion, Judge A. Kelly made orders that the matter be listed for directions on 4 December 2019 in the Dandenong registry of the Federal Circuit Court of Australia.

3. On 31 July 2019, Judge A. Kelly made the following notation:

   AND THE COURT NOTES THAT:

   A. The father is facing criminal charges in relation to an intervention order, which is returnable before a Magistrates’ Court on 15 August 2019.

   B. Parenting orders require consideration of medical evidence as to the father’s mental condition and prognosis, which evidence is outstanding.

   C. Parties have made some progress to the resolution of financial disclosure.

4. As that notation indicates, the applicant father was facing charges for breaching an intervention order made on 15 August 2019. The applicant has also obtained two medical reports from Dr A, a forensic psychiatrist, in relation to his mental health. The first report is dated 14 August 2019 (‘the first report’) and the second subsequent report is dated 8 October 2019 (‘the second report’).

5. The applicant and the respondent mother are the parents of two children, X born in 2012 and Y born in 2015.

6. The applicant has a longstanding history of mental illness, for which he has received treatment for over the years. I understand that prior to the criminal charges he was facing in August of this year, he did not have a criminal history. What sadly appears to have happened is that things have spiralled out of control for the applicant. With the breakdown of his relationship with the mother, it appears that he took up with some other person and that relationship then broke down and there were the events which led to the criminal charges which were dealt with in the Magistrates Court in August.

7. Dr A’s first report, which was obtained for The Magistrates’ Court  hearing, says at [45] to [46] that:

   45. At interview Mr Lensen confirmed he continues to receive psychiatric treatment. He reported for the past three months he has also been receiving mental health treatment from the psychologist, Ms B, who works from rooms in Suburb D. I am aware he has also booked in to participate in a Men's Behaviour Change Program via The Centre in Suburb C.

   46. As a result of interviewing Mr Lensen on 2/8/2019 and assessing him using the HCR·20, I did not assess him as having a general anger management problem. In my opinion the risk of him committing a further offence of violence is low. In my opinion his offending by way of kicking the door and smashing the glass panel at the marital home on 31/5/2019 was situationally motivated behaviour and behaviour which was likely to be out of character and reflective of his state of acute stress and distress at that time - he having just been informed by his wife she had removed the wedding photos and his personal photos which had been hanging on the wall in the entry hall of the marital home.

8. Unfortunately, as noted above, matters seem to have spiralled out of some control after that report was obtained and the applicant has faced charges of persistently breaching an intervention order. The applicant has spent about 64 days in custody prior to entering a guilty plea and was released subject to a community corrections order on 1 November 2019. The decline in the applicant’s mental health is outlined in the further medical report of Dr A (dated 8 October 2019).

9. The applicant, in his own application for an intervention order in respect of the respondent, says the reason he is seeking the intervention order is that:

   The respondent causes me great psychological harm and I am prone to depression and suicidal tendencies and I have tried to take my life 5 times recently.

10. Dr A, who is a very experienced psychiatrist, expressed his concerns in regard to the applicant between [31] to [33] of the second report. Dr A stated that:

    31. In my opinion Mr Lensen has very genuine, serious and complex mental health problems which are well documented. He is currently medicated on an antidepressant and on antipsychotic medication. He has conclusively been diagnosed with a Major Depressive Disorder which, in my opinion, is recurrent in type and of at least moderate severity. He is also most probably suffering from Bipolar Disorder Type II.

    32. He has recently been hospitalised at C Hospital and, on his account, he has had five Involuntary Assessment Orders at E Hospital in the past three/four months. At interview he confirmed he has been enrolled to undertake an anger management program/Men's Behaviour Change Program. In my opinion it is imperative he complete an anger management program/Men's Behaviour Change Program. At interview on 1/10/2019 I assessed his current risk of committing a further offence of violence through using the current best practice assessment tool, namely the HCR-20, on which his risk was assessed as Moderate. In my opinion his risk has increased since I assessed him on 2/8/2019 because his mental health problems have become more severe over the recent months.

    33. In my opinion he requires ongoing psychiatric treatment to monitor his medication regime and ongoing psychological treatment to assist him to develop a more accurate perception and to develop a more accurate judgment and insight concerning the breakdown of his marriage and his current legal situation. I confirm I did not assess him as having an Antisocial Personality Disorder or an antisocial personality style.

11. Dr A is absolutely clear in stating that it is imperative that the applicant complete an anger management problem or a Men’s Behaviour Change Program. Currently, there is no evidence before the Court that the applicant has completed such a course.

12. The applicant put before the Court a proposal in the following terms:

    1. Until further order, X (born in 2012) and Y (born in 2015) (the Children) live with the Respondent.

    2. Until further order, the Children spend time with the Applicant as follows:

    a) For a period of one month from the date of these orders, each alternate weekend from 10.00am to 4.00pm on Saturday and 10.00am to 4.00pm on Sunday commencing on 7 December 2019;

    b) thereafter each alternate weekend from 10.00am Saturday until 4.00pm on Sunday.

Consideration

1. The primary considerations the Court must consider in this case, pursuant to section 60CC(2) of the Family Law Act 1975 (Cth) (‘the Act’), 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.

2. The Court, of course, must give greater weight to the protection of the children: s.60CC(2A) of the Act.

3. The Court is mindful that whilst the father has had a long history of mental illness, that prior to May this year he has had no interaction with the criminal justice system.

4. The apparent significant mental decline of the applicant is confronting. It appears from reading the report of Dr A that he was similarly struck by the decline in the applicant’s health such that he has made very clear recommendations, including for on-going psychiatric treatment.

5. I am not prepared to make the orders that are sought by the applicant father. I do not think that this a case where the evidence supports a finding on an interim basis that the applicant’s mental health problems will be solved once he starts seeing his children again.

6. There are clearly some serious and complex mental health problems which Dr A has referred to which pose a threat to the wellbeing of the children. It is imperative that the applicant enrol in the courses that he is required to enrol in as a result of the community corrections order (dated 1 November 2019). It is a condition of that Order that the applicant undergo the following treatment and rehabilitation:

   - Mental health assessment and treatment as directed

   - Offending behaviour program/s as directed

   The order states that these conditions started on 1 November 2019 and will continue for 12 months.

7. The Court has not had any evidence before it that either the courses recommended (or effectively prescribed) by Dr A or the rehabilitation steps that are required by the community corrections order have been enrolled in. Whilst the applicant references Dr A’ recommendations, all that is said as to his enrolment in those programs is a statement at [4] of the applicant’s affidavit of 1 December 2019 that states:

   4. I am regularly taking medication to manage my depression and I am regularly seeking psychiatric and psychological treatment to manage my medication and behaviour.

   It does not go into detail as to what steps have been taken since receiving the report from Dr A or the community corrections order.

8. Given that I must act protectively, I will not accede to the proposal put by the applicant. The parties agree that it is appropriate to appoint an Independent Children’s Lawyer, and based on the above, I agree that one should be appointed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  21 January 2020