Luckaby and Round

[2009] FamCA 542

FAMILY COURT OF AUSTRALIA

LUCKABY & ROUND [2009] FamCA 542

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Order for psychiatric examination of father

Family Law Act 1975 (Cth)

APPLICANT: Mr Luckaby

RESPONDENT: Ms Round

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5064 of 2007

DATE DELIVERED: 5 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 June 2009

REPRESENTATION

THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms R.S. Sleeth

SOLICITOR FOR THE RESPONDENT: Rigoli Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms L. Dorian

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Schetzer Constantinou

Orders

1. That all extant applications be adjourned for final hearing on 20 August 2009 at 10.00am.

2. That the mother and the Independent Children’s Lawyer have leave to issue such subpoenae as they see fit returnable at 9.30am on 30 June 2009.

3. That the father undergo a psychiatric examination and provide a report of the results of such examination by no later than 24 July 2009 such report to be at the expense of the father and served upon both the solicitor for the mother and the Independent Children’s Lawyer.

4. That failing the father undergoing such psychiatric examination and providing the report as required by paragraph 3 of these orders, the mother have leave to seek to proceed on an undefended basis with her application for final parenting orders.

5. That the mother file and serve any affidavit upon which she intends to rely by 4.00pm on 7 August 2009 together with a document setting out the precise orders she intends to seek.

6. That the Independent Children’s Lawyer have leave to file such material as is necessary by 4.00pm on 14 August.

7. That a copy of these orders be sent by my Associate to the father at B Street in C.

8. That my reasons for judgment be transcribed and a copy sent to all parties.

9. That there be general liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5064 of 2007

MR LUCKABY

Applicant

And

MS ROUND

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the first day of a less adversarial trial involving a parenting dispute about a child, a son, who was born in February 2001.  The child is therefore eight and a half years of age.

2. The proceedings have been in the system for over two years, apparently having been commenced in the Bendigo Magistrates Court and then being transferred at various stages, ending up in this Court.

3. The most recent litigation event was on 26 February 2009 when Registrar Sikiotis had a directions hearing.  At that hearing, the father attended in person and counsel appeared for the mother and Ms Dorian appeared on behalf of the Independent Children's Lawyer.  That is of some significance because it means that the father at that stage understood what the proceedings were about and had to come to court.  He was told by the orders on that day that the first day of the trial was going to be on 7 May 2009.  That clearly did not happen and then the matter has come before me today which is 5 June 2009.

4. Today, the father has attended again which would tend to suggest that he either wants to participate in the proceedings or at least that he understands dates and what hearings are about.

5. The difficulty is that when the father says anything from the body of the court, it is in an incoherent way and to some extent, put aggressively.  His thought patterns are difficult to follow. That may very well be explained by some material that is attached to an affidavit of Dr G, who is a forensic psychiatrist.  That affidavit was filed on 29 August 2008.

6. Dr G, in a report dated 17 March 2008 said:

   In summary, [the father] is a 38-year-old man who is the father of a seven‑year-old son, [the child].  [The child’s] mother is [Ms Round], with whom [the father] said he commenced a relationship in the mid-1990s and married several months prior to [the child’s] birth.  He maintains that [the mother] has been mentally ill and had suffered from auditory hallucinations.  He stated that her mental state had led to an intervention from the CAT team and that she had at one stage tried to stab herself.  [The father] suggested that [the mother] suffered from mood swings and she had left him a couple of weeks after [the child’s] birth, having accused him of assaulting him.  They remained separated but for a time, he had intermittent contact with [the child] until [the mother] refused further contact about two years ago.

7. What the father told me today was that he was beaten up by police at the instigation of someone, possibly I interpolate that to mean the court, and that he had not seen his son as a result of allegations made about sexual issues.  He refers to being able to predict that certain people would be sexually assaulted.  He also made the observation that it was inappropriate for the child to be going to a contact centre because the child was at risk there.  There is a consistency between what Dr G saw and what I have seen today, suggesting that in the period of some 14 months since that report was done, nothing has changed.

8. Dr G concluded that the father presents as a rather disturbed man who was highly agitated and whose thinking featured paranoid themes.  There is a very distinct similarity with what I saw today.  Dr G said that the father did not exhibit evidence of frank or unequivocal psychosis at the assessment interview.  I am not a psychiatrist but what I saw today indicated that is exactly what the problem was.  Dr G had some concerns about the father, although he found no evidence to suggest that the father did not want to maintain a positive and appropriate relationship with his son.  Dr G covered all of that, however, by saying that an assessment of the credibility of the allegations or suspicions raised by the mother must be made to determine the appropriateness or otherwise of the father having further contact with the child.  The significance of that is that in her own words, the mother has indicated that she would like the father to have some contact with his son on the basis that the father gets his medical and mental health in order.  As I said, 14 months have gone by and there is no indication that that is unlikely.  I have serious concerns about the father’s capacity to not only have contact with his son but also to participate in the proceedings.

9. The record will note that the father was disruptive in the proceedings and at that point in time when I was trying to get him to participate, he indicated that he saw little point in proceeding and then promptly left the court.  That ought not in itself be an excluding factor for the future.  This is about the welfare of a little boy and it is important in this case, because the mother has told me, that she would like the father to have some involvement in his son's life, but he needs to get his house and health in order.

10. The other complicating factor is that the mother concedes that in the last week, the child has been involved in an incident at school which has brought about the intervention of the Department of Human Services and no doubt the Education Department.  It sounds like some sort of sexual assault on another child, although that remains to be seen.  It is important in this case to recall that the Department of Human Services has once before been invited to participate in the proceedings and declined.  There have been at least two notifications to the department's offices and on both occasions they have been dealt with and the child has not been removed from the mother's care.

11. All of that means that I have limited information upon which to base any decision, and the Independent Children's Lawyer needs to investigate a number of matters to ensure that whatever evidence I base the ultimate decision on, it is comprehensive.  I am not suggesting that the mother will not be telling me a comprehensive picture but her evidence needs to at least be examined cautiously.

12. In addition to that, I have the added dilemma of not knowing whether the father will participate but it seems to me, having regard to what occurred in March 2008 and what I have seen today, it is appropriate for me to effectively exclude him from participating unless he provides me with a psychiatric report which he needs to obtain himself, to indicate that he can actively participate.  If someone is mentally ill, it is hard to imagine at times how they could understand that they need to gather evidence but I am curious in this case about the fact that the father generally seems to respond to hearing dates and attend court, for whatever reason.  On that basis, I can see no reason why I should not conclude that he would understand an order that he would be required to present some psychiatric evidence to show that he is capable of participating in the proceedings.  I have contemplated the appointment of a case guardian of my own volition but it seems pointless in the circumstances where the evidence would still need to come from the father as to his future proposal as to how he would be involved in the child’s life.

13. On that basis, what I am proposing to do is to have the matter brought back before me again in a few weeks time with the Independent Children's Lawyer having an opportunity to investigate a number of issues and to present such evidence as she sees fit.  The mother will obviously need to present me with an adequate picture of how she proposes to care for the child in the future and in particular, what involvement, if any, she sees the father having with the child, particularly having regard to the current matters of his mental health.  The mother must understand that an undefended hearing is oftentimes more difficult to prove than a defended matter.  If I am not satisfied about what orders are being sought - in other words, that I am not satisfied they are in the best interests of the child because of the material presented to me - it is conceivable that I will simply refuse to make the orders and pass the whole file to the Department of Human Services to deal with the matter.

14. Hopefully, therefore, the appropriate material can be provided.  I will certainly give leave to the Department of Human Services to intervene if they so wish but I do not propose to specifically make an order under s 91B, having regard to the fact that they have shown a reluctance to be involved in the past.

15. I am taking some time with the reasons here because I intend that they be sent to the father for his consumption.  He must understand that whilst I have some concerns about his mental health, the focus of my attention is going to be on the child.  I am not here to pander to his wishes, but rather to see what proposal he has that might brighten and make the child’s future better.  At the moment, I am puzzled as to why he is behaving the way he is, but I will put that down to his mental health.  That certainly is not helpful for the child, but the father needs to get his house and health in order.

16. I will give general liberty to apply in the event that there are further problems.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 June 2009