Patricks & Simpkin

[2007] FamCA 893

FAMILY COURT OF AUSTRALIA

PATRICKS & SIMPKIN

[2007] FamCA 893

FAMILY LAW – CHILDREN – With whom a child spends time – Mental illness of father – father “person with a disability” – father restrained from commencing or continuing proceedings unless has case guardian or permission of Court – Interim orders for supervised time with father conditional upon therapeutic intervention and medical opinion – Injunctions restricting the father’s behaviour

Family Law Act 1975 (Cth) s 60CC
Family Law Rules rule 6.0 and Dictionary to the Family Law Rules

APPLICANT: MR PATRICKS

RESPONDENT: MS SIMPKIN

INDEPENDENT CHILDREN’S LAWYER: NICOLA CALLANDER

FILE NUMBER: NCF 449 of 2005

REASONS FOR JUDGMENT DELIVERED: 22 AUGUST 2007

PLACE DELIVERED: SYDNEY

JUDGMENT OF: Justice Mullane

HEARING DATE: 23 July 2007

REPRESENTATION:

FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Garrick of Patrick McHugh & Co, Solicitors

INDEPENDENT CHILDRENS LAWYER: Ms Callander of Legal Aid Commission of NSW

Orders

1. The father is declared under the Family Law Rules to be a person with a disability.

2. Pending further order the father is restrained from commencing any proceedings in any Court under the Family Law Act in relation to the parties’ child … born … March 2004 unless:

   2.1      he has a Case Guardian appointed for the proceedings;  or
   2.2      he obtains the prior permission of the Court.

3. Any application for permission to commence proceedings in this Court must in the first instance be listed before a Judge in chambers without appearances, and unless otherwise ordered must not be served on any other party.

4. Pending further order the child of the parties born in March 2004 is to live with the Respondent Mother.

5. Pending further order the Respondent Mother has the sole responsibility for decisions about the long term and day to day care, welfare and development of the child.

6. Pending further order the father is to spend time with the child under supervision of Relationships Australia if and when that agency agrees to undertake to provide that supervision at G Centre in accordance with the agency's reasonable requirements and upon compliance with such pre conditions as that agency may deem appropriate in its discretion.

7. Pending further order in the event supervision remains unavailable pursuant to Order 6 the father is to spend time with the child supervised by the paternal grandfather:

   7.1      every 2nd Saturday for 4 hours commencing 9.30am; and

   7.2      other communication as agreed in writing.

8. Transport for spending time and communication purposes is to be provided by the mother if supervised by Relationships Australia or by the paternal grandfather if supervised by him.

9. Pending further order except pursuant to clauses 12 and 13.3 herein, the father is restrained from approaching or contacting the mother.

10. Pending further order the father is restrained from approaching or contacting the mother's 3 older children or members of the mother's household.

11. Pending further order the father is restrained from reporting any concerns he may have concerning the care, welfare and development of the child to any welfare authorities or local police, school principals or directors of any school attended by the child without the Court's prior leave.

12. Pending further order the father notify the mother in writing by prepaid post within 24 hours particulars of any medical prescription received by him and of any specialist advice or report relating to or having bearing on the need for supervision of his time with the child.

13. Pending further order all periods of time the father spends with the child pursuant to clauses 6 and 7 above are conditional upon the father establishing that he has:

    13.1 formed a regular therapeutic relationship with an appropriately qualified psychiatrist;

    13.2 complied with any prescribed medication regime and other recommended interventions;  and,

    13.3    provided to the mother by prepaid post a letter or report from his treating psychiatrist indicating that in her/his opinion the father is well enough to commence spending supervised time with the child.

NOTATION:

1. The Court notes that it is the intention of the mother to arrange for the child's early participation in swimming lessons, playgroup activities, and other activities in furtherance of the child's social and personal development and welfare.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Patricks & Simpkin.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 449 of 2005

MR PATRICKS

Applicant

And

MS SIMPKIN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an undefended hearing of proceedings concerning the care, welfare and development of the parties’ son (3).  They were commenced by an application by the father and the mother filed a Response opposing the application and seeking different orders.

2. On 14 February 2007 Justice Ryan ordered:

   1         That further consideration of this matter is adjourned to Monday, 19 February 2007 at 12.00 noon with the parties to appear by telephone.

   2         That during the period of the adjournment [the father] will consult with his sister […] and ascertain her willingness to supervise his contact with [the child].

   3        At this stage it is contemplated [the child] will spend time with his father from 10.00 am until 2.00 pm each Friday.

   4         [The father] will consult a Psychiatrist of his choosing as soon as possible.  Thereafter, [the father] will attend the Psychiatrist at a frequency suggested by the Psychiatrist and abide the Psychiatrist’s reasonable directions.

   5         [The father] has liberty to give his nominated Psychiatrist copies of [Dr R’s] two reports filed in these proceedings and the report of [Dr W] also filed in these proceedings.

   6        If [the father] requests of her, then the Court requests the Director of Child and Family Services in this Registry to provide [the father] with a list of Psychiatrists practicing in the Central Coast area.

   7        [The father]  is to immediately advise my Associate in writing of the name and contact detail of the Psychiatrist he consults.  This information is to be placed in the Court safe and shall not be accessed by any person other than my Associate without the prior leave of the Court.

   8        In the event [the father’s] sister […] agrees to act as a supervisor, he is to arrange with Ms Callander, the Independent Children’s Lawyer, for a three-way teleconference tomorrow, 15 February 2007, during which Ms Callander will explain to [the father’s sister] her supervisory role.

3. The father appeared in person.

4. On 19 February 2007 the father appeared in person by telephone link and the following orders were made by Justice Ryan.

   1         That this matter be listed for final hearing for 3 days commencing 13 June 2007 at 10.00 am.

   2        That the Independent Children’s Lawyer’s application for the appointment of a Case Guardian to [the father] is dismissed.

   3        That the parties and the Independent Children’s Lawyer file and serve all affidavit material upon which they intend to rely not later than 11 May 2007.

   4        That not later than 48 hours prior to the commencement of the hearing the parties provide to my Associate a Case Outline document.

5. On 18 June 2007 the proceedings came before Justice Steele for hearing.  He marked the matter not reached and adjourned it.  The parties and the Independent Lawyer for the child then had discussions.  Later that day the father filed a Notice of Discontinuance withdrawing his applications.

6. The mother’s Amended Response was then listed for undefended hearing before me.

THE EVIDENCE

1. The evidence comprised:

   1)Exhibit M1the orders sought by the mother by way of further amendment to her application/Response.

   2)Amended Response to an Application for Final Orders filed on 6 February 2007.

   3)Terms of Settlement dated 4 July 2005.

   4)Affidavit of the mother sworn 14 December 2006.

   5)Affidavit of the mother filed 12 July 2007.

   6)Affidavit of Dr R sworn 13 February 2007

BRIEF BACKGROUND

1. The Court accepts the evidence in the documents.

2. The parents were cohabiting when the child was born in March 2004, but they separated 10 days later.  The child has been cared for by the mother for the whole of his life.

3. The father filed and served an Application for DNA Testing in K Local Court in 2004.  It was returnable on 16 September 2004 but the father did not appear and did not proceed with the application.

4. The father commenced these proceedings by his application filed on 19 May 2005.  On 4 July 2005 interim Orders and Notations were made by consent as follows:

   1         That the child […] born […] March, 2004 reside with the Respondent mother.

   2.        That the father have contact with the said child […] as follows:

   (a) Every second Saturday commencing 16^th July, 2005.

   (i)Three hours commencing 9.30am during July 16^th, 30^th and August 13^th, as agreed.

   (ii)Four hours, commencing 9.30am during the months of August 27^th, 2005 as agreed.

   (b)      Other contact as agreed in writing.

   3(a)     That contact referred to in Clause 2. above be supervised by the mother, unless […], the paternal grandfather is available to provide supervision as agreed and until receipt of the psychiatric assessment report referred to in Clause 8 hereof considering future unsupervised contact appropriate.

   (b)      That both parties will do all things and sign all applications and provide all information and documents required by the [G Centre] to enable that Centre to assess the eligibility of the parties for supervised contact at the [G] Centre when the first available vacancy arises to provide the supervision for contact in lieu of the supervision specified in Clause 3(a) hereof.

   4.        Transport for contact purposes is to be provided by the mother whenever public transport is not reasonably available for the father to give effect to the agreed contact arrangements for that day at the commencement and conclusion of contact periods.

   5.        The father is restrained from approaching or contacting the mother other than for the purposes of exercising or re-arranging contact on the preceding Friday between 9.00am and 3.00pm by single phone call unless the father provides a phone number for the mother's return call to complete the arrangements.

   6.        The father be restrained from approaching or contacting the mother's older three children or members of the mother's household.

   7.        The father is to complete the first available Parenting Course through a duly accredited agency such as the PP Programme.

   8.        The father is to attend for a psychiatric assessment by a duly accredited forensic psychiatrist, who will have regard to the father's letter forwarded to the mother's former husband, […], to assess the appropriateness of unsupervised future contact order by the father of the child […] in the context of mental health and child protection considerations.

   (a)Each party will comply with whatever directions the expert psychiatrist in Clause 8 directs including the authority to Dr [L] of Newcastle to provide the Mental Health records relating to the father held by him and such other records as the expert shall require.

   (b)Alternatively, subject to the Court's Orders the psychiatric assessment is to be in accordance with Chapter 15 of the Family Law Rules.

   (c)Both parties will apply to the Legal Aid Commission of New South Wales to extend Aid for the purposes of funding the psychiatric assessment referred to in Clause 8 hereof and make all necessary submissions with all due expedition in support of such application for extension of Aid.

   9.        That the father notify the mother within 24 hours particulars of any medical prescription received by him and of any specialist advice or report relating to or having a bearing on the need for supervision for the exercise of contact; that all contact be under supervision whenever the father is unwilling or unable to comply with specialist advice as to the need for use by the father of prescribed medication relating to his mental health condition.

10.      Both parties will attend a duly accredited pathology practice for the purposes of a D.N.A. parenting test and the mother will arrange for the child […] to attend for such testing at he earliest available date on the basis that:

(a)      The Father will be responsible for the costs of such testing if those tests confirm the father's parentage.

(b)      That the Mother will be responsible for the costs of such testing if' the tests proof negative as to the father's parentage of the said child

(c)      That both parties will apply to the Legal Aid Commission of NSW will all due expedition for funding of the said tests.

11       That the matter be relisted for an Interim Hearing on about 24^th August, 2005 before a Judicial Registrar with liberty to restore the matter after 7 days for any significant issues arising from these orders or from any significant child protection or conduct issues, and on the basis that the parties may consent to an administrative adjournment.

12       That the Mother will file a Form IA Response within seven days from the date of these orders and a Form 2A and supporting Affidavit not less than 21 days before the Interim Hearing listed on 24^th August, 2005.

NOTATIONS;

A        It is the intention of the parties to arrange for the child's early participation in swimming lessons, playgroup activities and other activities in furtherance of the child's social and personal development and welfare.

B        That for the parties' mutual convenience, they will notify each other by SMS of any request for variation of the regular contact routine. For that purpose only, the father be at liberty to ring the mother at her mobile number on Fridays preceding a contact Saturday between 9 a.m. and 3 p.m. or Saturday from 9.00 a.m. onwards. Similarly, that the mother will whenever practicable, contact the father on Saturday morning to confirm that day's contact arrangements.

1. In May/June 2005 when the mother attended the father’s home at the appointed time for contact he was still in bed.  On 30 June he remained in bed for quite a while and then forced himself upon the mother whereupon she left with the child.

2. In January 2005 the father made an application for the mother to pay him Child support for the child even though the child was living with the mother full time and had not stayed overnight with the father.

3. The father made numerous phone calls to the mother on days other than the Fridays.  In the process of the parents and child being assessed for supervision of the child’s contact with his father, the father harassed and threatened staff of Relationships Australia and in June 2006 that organisation wrote to the father and in that letter stated among other things:

   After careful consideration of these events we have decided that we cannot offer you a service it this time. In order for an assessment to be made about whether it will be possible for us to offer you visits with [the child] at our centre, you will need to show evidence that you will not be a threat to anyone.

   You will need to provide to Ms [K]:

   1.        A report from your Mental Health worker or psychiatrist and written permission from you for us to speak with that person.

   2.        A character report from someone who can vouch for your future appropriate behaviour.

   3.        Evidence that you have attended a program which will assist you to recognise and manage your aggression and anger in an appropriate was. (Services which may assist you include: Unifam "Post-separation Parenting" on 4324 4387, and Lifecare “Anger Management Course” on 1300 130 225.)

   After provision of the above, a face to face interview will be conducted to assess your suitability to attend the Children's Contact Service for visits with [the child]. I am conscious that this decision will be disappointing to you. It is also disappointing to me and to our staff that we need to take these steps at this time, considering we were so close to facilitating your visits with [the child].

4. In January 2006 G Local Court made an apprehended violence order  restricting the father’s behaviour for 12 months for protection of the mother.  The Police evidence in the application was:

   Around 2.00pm on Saturday 5^th May 2007 Police attended […] in relation to a phone conversation with the Defendant, [the father] had with Sgt [M] around 1.30am on the same date, Police Intelligence report number […] relates.

   The Defendant stated in the phone conversation that he was unhappy with the current proceedings in the Family Law Court and that he was going to take matters into his own hands and do something “Very Bad”.

   When questioned by Police as to what he meant the Defendant stated “You know what I’m getting at.  If I can’t see him.  I’ll make it that she will never see him again and nor will I.”

   When questioned regarding the phone calls he made to Police the Defendant stated that he felt “Dead inside” and if a “truck hit him” he wouldn’t feel a thing.

   The Defendant stated that the PINOP was frustrating him and that if the Family Law court proceedings kept on stretching out he will get a Baseball bat and smash the PINOP’s head in.

5. In April 2006 the father applied to have the AVO revoked.  His application was listed on 16 May 2006.  It was dismissed in June 2006.  The mother attended court on 7 occasions when her application for an AVO or the father’s application to revoke the order were listed.  On 5 of those occasions the father did not attend.

6. In July 2006 the father sent 2 insulting, irrational and threatening letters to the mother’s solicitor.  One made subtle threats of informing the solicitor’s wife that the solicitor was seeking to have a sexual relationship with the mother.  In the other, he threatened the solicitor that he would make complaints about the solicitor to discipline bodies.  The same letter is lengthy, rambling and hysterical.

7. Because of the father’s conduct the mother moved with the child to live with her sister and brother-in-law and their family.

8. The child had supervised contact with the father on 4 occasions between May and August 2004 and sporadically in November 2004, and from about April to June 2005.

9. Initially the paternal grandfather supervised the contact while the father resided with him in K.

10. Then the father moved to W and the paternal grandfather ceased to  supervise.  The mother supervised contact on several occasions in 2005 at the father’s rented accommodation.

11. These proceedings were listed for a 5 day defended hearing to commence on 18 June.

12. In Court on 18 June the father told Justice Steele, “If I do not get what I want in these proceedings, I will be going to take the law into my own hands”.  The hearing was not reached and adjourned to fresh dates to be fixed.  That day the father filed a Notice of Discontinuance. 

THE FATHER’S DISABILITY

1. Dr R is an Independent Single Expert in the proceedings.  She is a psychiatrist.  Unfortunately, no curriculum vitae for her is in evidence.

2. Dr R’s opinion is that the father:

   ·    Suffers from paranoid schizophrenia;

   ·    “Has an inflated view about how his wishes and perceptions should be acted upon by the mother when the child is in her care”;

   ·    suffers grandiose delusions;

   ·    fails to know boundaries between what is appropriate and what is not;

   ·    is unable to accept professional opinions and advice;

   ·    is unlikely to accept legal advice or recognise that legal representation might be in his best interests;

   ·    sees the legal and medical system as involved in a conspiracy against him and considers this to be the nature of the Family Court, legal representatives and experts, particularly in Newcastle;  and

   ·    has fixed beliefs and delusions that he has superior cognitive capacities, including that he knows more about the human mind than Dr R.

1. Dr R’s opinion is that the father is aware the proceedings are about him spending time with the child and having input into the child’s parenting.  But she 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”.

2. Rule 6.08 of the Family Law rules provides:

   Conducting a case by case guardian

   (1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

   (2) Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.

   Note 1 For service on a person with a disability, see rule 7.09.

   Note 2 If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case.

3. The dictionary to the Family Law Rules provides that a “person with a disability” means a person who, because of 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 instructions for the conduct of, the case.

4. The evidence establishes the father is not capable of adequately conducting, or giving adequate instructions for, the conduct of the proceedings.  He is a disabled person.  There should be a declaration to that effect and an order restraining the father from commencing any further proceedings under the Family Law Act 1975 in relation to the child unless he has a Case Guardian appointed for the proceedings or he obtains the prior permission of the Court.

5. The Court should, in the meantime, make interim orders on the basis of the available evidence.

RELEVANT LAW

1. The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:

(1)      The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Subsection 60B(2) provides:

(2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Subsection 60B(3) provides:

   (3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and

   (b) to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)      to develop a positive appreciation of that culture.

2. Subsection 60CC provides:

   Determining child’s best interests

   (1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)      The primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:

   (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)      the nature of the relationship of the child with:

   (i)       each of the child’s parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child’s parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h) if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)       the order is a final order; or

   (ii) the making of the order was contested by a person;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

1. The findings under subsection 60CC(3) are as follows:

a)        Expressed wishes of the child

1. There is no evidence of any expressed wishes of the child.

b)        The child’s relationships

1. The child’s most significant relationship is with the mother.  On the evidence it is his primary attachment, has been for all of the child’s life, and is a positive relationship.

2. In all probability the child has not seen his father frequently enough to develop any attachment and his relationship with his father is more of an association than a relationship.

3. The child also has a close and positive relationship with his maternal aunt, his uncle, his paternal grandfather, his 3 cousins (children of his maternal aunt), and his half sister aged about 14.  All of the above people (except the paternal grandfather), live in the same home as the child and his mother.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

1. Subsection 60CC(4) provides:

   4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)      has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)      to spend time with the child; and

   (iii)     to communicate with the child; and

   (b) has facilitated, or failed to facilitate, the other parent:

   (i) participating in making decisions about major long‑term issues in relation to the child; and

   (ii)      spending time with the child; and

   (iii)     communicating with the child; and

   (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (4A)     If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. The mother’s willingness and ability to facilitate a close and continuing relationship between the child and the father appears to be compromised only by reasonable concerns she has about the father’s mental illness placing the child at risk.

d)        Likely effect of any changes including any separation

1. The child’s relationship with his father is so limited that if no contact occurs in an interim period the child is unlikely to suffer from the separation from his father.

2. The mother’s proposal is that time the child spends with his father be supervised by Relationships Australia and in the meantime by the paternal grandfather.  But she proposes that either form of supervised contact be conditional upon the father:

   a)forming a regular therapeutic relationship with an appropriately qualified psychiatrist;

   b)complying with the treatment the psychiatrist recommends;  and

   c)providing the mother with a report from the psychiatrist expressing the opinion that the father is well enough to commence spending supervised time with the child.

3. It is in the child’s best interest that such orders be made.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

1. The father’s problems are such that the child’s interests at this stage require that the child be protected by their time together being supervised by a competent person and their supervised time together be subject to the preliminary conditions the mother proposes.

2. Whether that will substantially affect the child’s right to maintain personal relations and direct contact with his father on a regular basis will depend on whether the father complies with the conditions and interim orders or produces evidence at a later hearing to lead to other arrangements that he will comply with and that will ensure the child’s safety.

f)        Capacity of each parent and any other person to provide for the child’s needs

1. The mother’s capacity is adequate.

2. The father’s illness appears to seriously compromise his capacity to provide for the child’s emotional and intellectual needs.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

1. The child needs stability, routines, security and safety.  The mother is likely to provide for those needs.  Because of his illness the father is not.

h) If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. This does not apply.

1. Attitude to the child and the responsibilities of parenthood 

1. Subsection 60CC(4) provides:

   4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)      has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)      to spend time with the child; and

   (iii)     to communicate with the child; and

   (b) has facilitated, or failed to facilitate, the other parent:

   (i) participating in making decisions about major long‑term issues in relation to the child; and

   (ii)      spending time with the child; and

   (iii)     communicating with the child; and

   (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (4A)     If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. The mother’s attitudes to the child and to the responsibilities of parenthood are adequate.  The father has demonstrated a less than adequate attitude to spending time with the child and ensuring his safety.

j)        Any family violence

1. The mother’s experience and Dr R’s opinions indicate there is some risk to the mother and the child that the attributes of the father’s illness, when combined with conflict or stress, will result in abusive outbursts by him directed at the mother and to which the child will be exposed.

k)Any family violence order that applies to a child or a member of the child’s family

1. There is no such order.  But for the safety of the child and personal protection of the mother there should be an order restraining the father from approaching or contacting the mother.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

1. This is not a relevant matter.

m)Any other fact or circumstance the Court thinks is relevant

1. There is no other such matter.

PRIMARY CONSIDERATIONS

1. The findings as to primary considerations under Subsection 60CC(2) are: 

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

1. There would be a benefit to the child of having a close relationship with the father but his illness presently prevents that.

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The child needs to be protected from being subjected to, or exposed to, abuse, neglect or family violence arising from the father’s behaviour because of his illness and its consequences.

PARENTAL RESPONSIBILITY

1. There is an issue as to parental responsibility.  The mother seeks sole parental responsibility.

2. Section 61DA of the Act provides:

(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)      family violence.

(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

1. Because of the father’s mental illness and his delusions of grandeur he is unlikely to be able to communicate reasonably with the mother about parenting or make joint decisions with her.  The presumption of equal shared parental responsibility is displaced.  The child’s interests require that there be an interim order for the mother to have sole parental responsibility.

OTHER CONCLUSIONS

1. The child’s interests require that pending further order he reside with his mother.

2. As the mother seeks, the father should be restrained pending further order from approaching or contacting the 3 older children of the mother or any member of her household.

3. As she seeks, and in order to protect the child and the mother from irrational harassment by the father, there should be an order restraining the father from making complaints about the child’s care to welfare authorities, police or school principals or directors.

4. It is in the child’s interests that the father be required to keep the mother informed of any medical prescription he is provided, and any specialist advice relating to the need for the child’s time with him to be supervised.

_______________________

The Hon Justice Mullane
22 August 2007