Patricks and Simpkin (No 2)

[2009] FamCA 1205

FAMILY COURT OF AUSTRALIA

PATRICKS & SIMPKIN (NO. 2) [2009] FamCA 1205

FAMILY LAW – CHILDREN – Person with a disability – Case guardian

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Patricks

RESPONDENT: Ms Simpkin

FILE NUMBER: NCC 3620 of 2007

DATE DELIVERED: 8 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle (in chambers)

JUDGMENT OF: Murphy J

HEARING DATE: Heard and determined in chambers

REPRESENTATION

THE APPLICANT: No appearance required

SOLICITOR FOR THE RESPONDENT: No appearance required

Orders

1. The applicant father be granted leave to commence and prosecute an application for parenting orders in respect of the child … born … March 2004.

2. The matter be listed for further directions before a Registrar at a time and date to be advised and, unless otherwise considered inappropriate by the said Registrar, leave be granted to each of the parties to attend such directions hearing by telephone.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3620/2007

MR PATRICKS

Applicant Father

And

MS SIMPKIN

Respondent Mother

REASONS FOR JUDGMENT

1. The father of the subject child, born in March 2004, seeks to commence and prosecute an Application for parenting orders in respect of him. Standing in his way is an order made by Mullane J giving effect to a finding made by his Honour that the father was a “person with a disability” as that expression is used in the Family Law Rules 2004.

2. Consequent upon that finding, Mullane J restrained the father from commencing proceedings in relation to the child, unless a case guardian was appointed for him, or the court gave permission for those proceedings to commence.

3. Since that order was made, over two years ago, the father has applied to this court on three separate occasions seeking permission to commence proceedings (or, alternatively, seeking in effect, a declaration that he was not a person with a disability).

4. On 5 December 2007, the father made application before Mullane J. That application was dismissed. Subsequently, in June 2008, an application to similar effect was heard by Fowler J. It was also dismissed. Most recently, Ryan J, on 29 July 2009, also dismissed an application to that effect.

5. The foundation for the initial finding of disability made by Mullane J, was psychiatric evidence before his Honour to the effect that the father suffered from chronic schizophrenia. A report in evidence before Mullane J from Dr W, a consultant psychiatrist, not only made that diagnosis, but went on to say that the father “… should have treatment both in the interests of his mental health, and the interests of better parenting.”

6. Another psychiatrist, Dr R, was appointed as a court expert. Dr R prepared two reports which were also in evidence before his Honour. She diagnosed “paranoid schizophrenia”. She said that the illness was “currently untreated” and that the father “has no insight” into the fact that he suffered from that illness.

7. Dr R went on to say that the father “… does not appear to have otherwise caught [the child] up in his psychotic processes. This could change in the future and is another reason [the father] needs to develop a working alliance with a psychiatrist who can monitor his mental state”.

8. Dr R also provided an opinion with respect to the impact that the father’s untreated mental illness might have on his capacity to conduct proceedings on his own behalf. She opined that doing so would be “excessively provocative to his mental state placing him at risk of decompensating into acute psychosis”. Dr R also said that she doubted whether the father “full understands there are risks that he could have very limited or no contact as an outcome of the proceedings”.

9. After referring to the earlier psychiatric opinion in evidence before each of Mullane J and Fowler J, Ryan J referred to two significant aspects which her Honour found to be directly relevant in refusing the application by the father.

10. First, was a report from a Dr M, a psychiatrist, tendered in evidence by the father. Whilst Dr M said that he could “find no evidence of psychosis” her Honour commented on the fact that Dr M made no reference to seeing the reports prepared by either of the earlier two psychiatrists, Dr W or Dr R, and, her Honour inferred, these had not been made available to him. Her Honour saw this as a significant evidentiary deficiency in the proceedings before her, in light of the consideration given by Mullane J to those earlier considered psychiatric opinions.

11. In her Honour’s reasons, Ryan J said:

    Before the father files a further application for leave, assuming he does not have a case guardian, he ought to give serious consideration to ensuring that he has an opinion from a psychiatrist who has read Dr [W], Dr [R] and, should he wish it, Dr [M’s] reports.

‘New’ Evidence

1. The evidence in support of the current application by the father consists, relevantly, of a report from Dr N, who is a consultant psychiatrist practising in New South Wales. Dr N is not the father’s treating psychiatrist, but, rather, prepared a report at the father’s request.

2. Dr N records that he has read “a report by Dr [W], 27 February 2006; a report by Dr [R], December 2006” and “two reports by Dr [M], both dated 15 October 2007” and “a copy of the Reasons for Judgment by the Family Court of Australia, 29 July 2009”.

3. In addition, the father relies upon an affidavit by a woman with whom he has been in a relationship for nearly 18 months. That relationship has progressed to the stage where, she deposes, she and her five-year-old son have been spending time with the father “overnight every alternate weekend”. She deposes to a relationship with the father which is unremarkable in the current context. She deposes to a positive relationship between the father and her son, and to her having no concerns about her son being in the father’s company, either with her or alone.

Current Psychiatric Opinion

1. Dr N opines that the father’s presentation “is consistent with chronic schizophrenia, with persistent delusions”. However, the doctor goes on to say:

   Despite not taking any anti-psychotic medication in recent years, the psychotic features appear sufficiently mild to allow him to continue with his TAFE studies and to maintain a serious relationship for at least over the past twelve/twenty-four months. There is no suggestion that his son [the child] is incorporated into any of his delusional beliefs.

2. The doctor goes on to say:

   On another positive note, [the father] demonstrates a continued keen desire and motivation to re-establish contact with his son. There is no evidence of significant “negative” symptoms, such as blunting of (or loss of ability to express) emotions, loss of ability to think or speak fluently (alogia) or general loss of motivation. The lack of these symptoms points to a better functional outcome, including greater capacity for interpersonal relationships.

3. The doctor plainly agrees with earlier psychiatric opinion that the father:

   … would benefit from an ongoing therapeutic alliance with the treating psychiatrist. He would likely benefit from the recommencement of an anti-psychotic medication, although his limited insight into his condition may be a barrier to treatment. The risk of relapse or worsening of psychotic symptoms is minimised with anti-psychotic treatment.

4. Ultimately, Dr N, having referred to the definition of a “person with a disability” for the purposes of the Family Law Rules 2004, provides an opinion that:

   Based on my assessment, he appears fit to take responsibility for his actions and seems capable of adequately conducting and giving instruction. Therefore I believe that he is not a person with a disability.

Conclusion

1. It seems to me that the preponderance of the evidence is to the effect that the father is a person who is not a “person with a disability” within the meaning of the Rules.

2. Independently of that, it seems to me that, in any event, on the current state of the evidence, the father ought be given leave to commence and prosecute the proceedings for parenting orders foreshadowed by him.

3. Whilst not strictly necessary for the purposes of the current application, in light of the history of this matter, I nevertheless consider it important to indicate to the father in these reasons that the finding made by me in the context of this application is not a finding that any psychiatric condition from which he might suffer is irrelevant to his application for parenting orders or any of the issues that need to be resolved by a court in arriving at orders which are in the child’s best interests.

4. Secondly, it is important, I think, to refer to an additional matter. The tenor of at least some of the evidence before the court in respect of the application contains an indication that the father might be concerned about the impact of a finding that he suffers from schizophrenia (or, indeed, any other serious mental illness) might have upon his application for parenting orders.

5. It seems to me that I can take judicial notice of the fact (see s 140 of the Evidence Act) that mental illness is attended with considerable community ignorance, misunderstanding and, sometimes, prejudice. The court has no such prejudice and is not ignorant of such matters.

6. Whilst by no means seeking to comment upon the merits or otherwise of the husband’s application for parenting orders (which are not relevant to the instant application) it is nevertheless important to indicate that, as a general rule, courts are much more concerned about the impact of an untreated or unrecognised mental illness than they are about the existence of a mental illness itself.

7. I formally order in accordance with the orders herewith.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  8 December 2009