Patricks & Simpkin

[2009] FamCA 668

FAMILY COURT OF AUSTRALIA

PATRICKS & SIMPKIN [2009] FamCA 668

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for leave to make an application to the Court to spend time with the child – In 2007 the father was declared to be a person with a disability and restrained from commencing proceedings in relation to the child unless he has a Case Guardian or the Court grants permission – Father applied to the Court without having a Case Guardian or providing new expert evidence to satisfy the Court he is no longer a person with a disability – Father’s application for leave to make an application to the Court is refused

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 6.08(1), r 6.10

APPLICANT: Mr Patricks

RESPONDENT: Ms Simpkin

FILE NUMBER: NCC 3620 of 2007

DATE DELIVERED: 29 July 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle (in Chambers)

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 29 July 2009

REPRESENTATION

APPLICANT: No appearance required

SOLICITOR FOR THE RESPONDENT: No appearance required

INDEPENDENT CHILDREN’S LAWYER: No appearance required

Orders

1. That the father’s application for leave to file an application for parenting orders is refused.

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: (P)NCC3620 of 2007

MR PATRICKS

Applicant

And

MS SIMPKIN

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Patricks (‘the father”) that the Court grants him permission to bring an application to spend time with his son (“the child”).  Permission is necessary because on 23 July 2007, a judge declared the father to be a person with a disability and restrained him from commencing proceedings in relation to the child unless he has a Case Guardian or the Court grants permission.

2. By way of background the child was born in March 2004.  Almost immediately after his birth the parties separated.  The child has lived with Ms Simpkin (“the mother”) ever since.

3. On 23 July 2007 interim parenting orders were also made. These orders provide for the mother to have sole parental responsibility and that the child lives with her.  There is a suite of orders which enable the father to spend supervised time with the child provided the conditions set out in the orders are fulfilled.  It is unnecessary to here recite the preconditions and sufficient to record that these relate to the father’s mental health.

4. The father does not have a Case Guardian and no application for the appointment of a Case Guardian pursuant to r 6.10 of the Family Law Rules 2004 has been made or is contemplated.

5. For the father’s application to succeed, he needs to establish he is no longer “a person with a disability” or, notwithstanding that he is, in the exercise of its discretion the Court should in effect dispense with r 6.08(1) and grant him leave.  

6. A “person with a disability” is defined in the Dictionary attached to the Rules as being a person who:

   Because of a physical or mental disability: 

   (a)does not understand the nature or possible consequences of the case;  or

   (b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

7. In support of his application for leave the father relied on an affidavit he swore on 12 June 2009.  Attached to this affidavit is a report from Dr W, Consultant Psychiatrist, dated 27 February 2006.  Dr W summarised the father’s psychiatric history and, without traversing all of the symptoms there recorded, he noted that at that stage the father believed he was the ‘Archangel Michael’.  Concerning the father’s mental health Dr W said: 

   Based on the information available to me at the time of preparation of this report, it is my opinion that [the father] suffers from chronic schizophrenia, for which he should have treatment both in the interest of his mental health and in the interest of better parenting.  He requires assessment of his parenting ability in a one on one situation by an appropriately qualified mental health professional who can provide a report to the Court.

8. Within the context of the father’s then application for parenting orders, and in accordance with Dr W’s recommendation, Dr R, a Child and Family Psychiatrist was appointed as the Court’s expert.  Dr R prepared two reports, one of which particularly addressed issues concerning the father’s mental health.  Dr R expressed the opinion that the father is:

   A pleasant man who has the mental illness, paranoid schizophrenia, which is currently untreated and about which he has no insight.  This disorder is variably responsive to anti-psychotic medication: a patient needs to be assessed on various different antipsychotic medications before deciding that medication is not useful to that individual.  As suggested to [the father], it might help him, at the least, to be less reactive to frustrations and could help him be more productive in his studies and occupational functioning.

9. Dr R also said 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. 

10. The father reported to Dr R difficulties he had been having with a contact centre which, by his own account, can only be regarded as him being inappropriate.  From this report it was clear the father understood what he sought from the Court, that is, adequate time with the child.  However concerning the conduct of the proceedings, my analysis of Dr R’s evidence accords with Mullane J’s findings found in his Honour’s judgment given 22 August 2007.  Concerning this issue, Mullane J said [at par 26]: 

    But she [Dr R] believes that if the father were to continue to conduct the proceedings on his own behalf it would be “excessively provocative to his mental state placing him at risk of decompensating into acute psychosis”.  She is concerned that because of his difficulty accepting boundaries his cross examination of the mother “could be quite destructive”.  She is of the opinion that he “would not take directions from the Court about the process”.  She doubts the father “fully understands there is a risk that he could have very limited or no contact as an outcome of the proceedings”.

11. His Honour afforded this evidence significant weight in his determination that the father was not capable of adequately conducting, or giving adequate instructions for, the conduct of the parenting proceedings.

12. Attached to the father’s affidavit are two reports under the hand of Dr M, both of which are dated 15 October 2007.  Dr M is a psychiatrist and Medical Superintendent of D Clinic.  D Clinic is the psychiatric unit attached to F Hospital.  Dr M assessed the father on 26 June 2007 and 11 October 2007. These consultations post date Mullane J’s determination that the father is a person under a disability.  Dr M said he could find no evidence of psychosis and, in the context of the father’s proposed application to vary an Apprehended Violence Order made against him, expressed the opinion:  “He is quite fit to instruct and conduct his case and therefore is not a person with a disability as outlined in the Family Court legislation”.

13. Dr M made no reference to having been provided with either Dr W or Dr R’s reports and I infer these had not been made available to him. 

14. On 5 December 2007 the father filed an Application in a Case, seeking in effect, orders similar to those with which I am concerned.  In support of his application the father relied upon Dr M’s reports.  The father’s application was dismissed by Mullane J on 14 January 2008. 

15. Another similar application was filed by the father in June 2008.  In his judgment, as a result of which the father’s application was dismissed, Fowler J observed that the father presented for his consideration the same but no further evidence than he had presented for Mullane J’s consideration.  Although leave was unnecessary, no doubt so as to guide the father as to the type of evidence he may wish to present in any future application, Fowler J gave him leave to provide Dr M with Dr R and Dr W’s reports for the stated purpose “…of enabling him to prepare a future report having viewed those reports”.

16. In support of this application no further report from Dr M was provided.  Although this is not fatal the absence of further and current medical evidence, whether from Dr M or another psychiatrist, reduced the father’s prospects of success. 

17. However there is attached to the father’s affidavit a report from a Registered Psychologist, Mr C, which is dated 22 January 2009.  The purpose of the referral to Mr C is described as:  “[the father] self referred for anger management as a consequence of a court direction”. 

18. Concerning the issue of the father’s capacity it is useful to record Mr C said: 

    [The father] still has no clear understanding of, or was unable to articulate any clear reason for the delays in granting him unsupervised access by the Family Law Court.  He finds the ongoing rate of problem solving in the Court as well as the court process very difficult to understand and very stress inducing.

19. In discussion of avoidance techniques, that is avoiding anger, Mr C reported:  “… [the father] is desperate to have a different structure in the court hearing structure as he does not need nor wish to be further provoked”.  This appears to be reference to the father’s desire to participate in the hearing process by video link so as to limit the risk of his angry outbursts if required to be in the same room as the mother whilst she gave evidence.  Mr C recommended early resolution, that the father apologise to the persons involved and that the court adapt its processes “so as to minimise the stressors that [the father] perceives he is being exposed to”.  It is not clear to whom Mr C makes reference when he recommends the father apologise. 

20. Whilst Mr C’s report provided a useful summary of his brief dealings with the father, it does not address the matter at hand.  However, from it I was left concerned that the father continues to not understand the Court’s adjudicative role, the evidence gathering process, its fact finding role or the possibility he may be fail to secure an order which would enable him to spend time with the child.

21. In the father’s affidavit he deposed to living in rented accommodation and being settled in his local area since January 2008.  He attends the gym regularly and appears to be undertaking an internet based IT course.  The father does not appear to have ongoing contact with a psychiatrist or other health professional and is not prescribed or taking medication.  While the lifestyle matters suggest there may have been some improvement in the father’s mental health, this evidence is not sufficiently compelling that in the absence of current medical evidence which addresses the matters contained in the reports referred to earlier, that I should declare the father no longer a person under a disability.  Or in the alternative, give him leave to commence proceedings notwithstanding the absence of a Case Guardian.

22. 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.

23. Should the father or those advising him consider it appropriate a request could be made to the Court for it to request the Attorney General to appoint a Case Guardian.  Whether the Court would make such a request would be influenced by evidence that attempts to secure the assistance of, for example, a family member or other associate, had been made or considered without success. 

24. For these reasons the father’s application for leave is refused.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  29 July 2009