Poppy and Leatherwood

[2010] FamCA 223

FAMILY COURT OF AUSTRALIA

POPPY & LEATHERWOOD   [2010] FamCA 223

FAMILY LAW – CHILDREN – With whom a child spends time – Substance abuse – Mental health issues

Family Law Act 1975 (Cth) Division 12A, s 65L
Family Law Rules 2004 (Cth)

APPLICANT: Ms Poppy

RESPONDENT: Mr Leatherwood

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 7509 of 2007

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Burchill & Horsey Lawyers

THE RESPONDENT: Appearing on his own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

Orders

IT IS ORDERED THAT

1. The matter be adjourned for a further continuation hearing at 12.00 midday on 18 May 2010 in the Brisbane Registry of the Family Court of Australia.

2. The time for the father to file and serve a Response to an Initiating Application be extended to 4.00pm on 13 April 2010.

3. The father shall file and serve by 4.00pm on 13 April 2010, a document, not necessarily sworn, that sets out in brief outline the reasons why he seeks the orders which he does in his Response.

4. Upon noting that the father is illiterate and has a long history of opiate addiction, it is respectfully requested and directed that the Independent Children’s Lawyer:

   (a)       explain the terms of these orders to the father;

   (b)explain the terms of these orders to the father’s mother, who by reason of her son’s illiteracy, has read parts of the proceedings to him already;

   (c)explain to the father’s mother the obligation cast upon the father pursuant to these orders;

   (d)advise the Associate to Justice Murphy by correspondence sent by email and sent contemporaneously to the solicitors for the mother and to the father and to the father’s mother:

   (i)whether the father has complied with the order in respect of the filing and service of documentation by 13 April 2010, and

   (ii)what steps it is proposed that the Independent Children’s Lawyer will take at the further continuation date on 18 May 2010.

5. The mother shall, through her solicitors, advise the father and the father’s mother, what steps are intended to be taken by her on 18 May 2010 in the event that the orders for the father to file and serve material are not complied with.

6. In the event that the mother seeks orders in default of compliance with the filing and service of material by the father in accordance with these orders, on the further continuation day of 18 May 2010, she shall file and serve on the Independent Children’s Lawyer, the father and the father’s mother, a minute of the orders sought by her on that day.

7. In the event that the father complies with the requirements to file and serve the documents provided for in these orders, directions shall be made on 18 May 2010 for the filing of material and such other steps as might be required to have this matter finally determined at a trial.

8. In the event that the father complies with the direction to file and serve the material provided for in these orders, the solicitors for the mother and the Independent Children’s Lawyer shall confer with a view to arriving at consent directions that will allow this matter to proceed to a trial, and which also, to the extent that same can be accommodated, take account of the father’s illiteracy.

9. Upon such conference taking place, the Independent Children’s Lawyer shall confer with the father and, if necessary, contemporaneously with the father and his mother, with a view to explaining the directions sought and seeking from the father his input in respect of directions that will allow the trial to proceed taking account of his illiteracy.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children S born … September 1999, P born … August 2000 and C born … March 2005, live with the mother.

2. The mother shall have sole parental responsibility for the children.

3. The children spend time and communicate with the father, subject to the availability of the Y Contact Centre for such time as is available on a Sunday or such other weekend day as can be arranged with the Contact Centre, not more than once every two months.

4. Each of the parties shall do all such things, sign all such documents and pay all such fees as are required to facilitate the commencement of time at Y Contact Centre.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 7509 of 2007

MS POPPY

Applicant Mother

And

MR LEATHERWOOD

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me today on a continuation day. It initially came before me for the “first day of trial”, (as that expression is used within the Family Law Rules 2004), on 6 October 2009. Prior to that time, orders had been made by a Registrar of this court on 2 April 2009 and 9 July 2009.

2. Orders made on each of those occasions required the father to file and serve a response to the application for final orders filed by the mother prior to, respectively, 7 May 2009 and by 23 July 2009.

3. At the first day of trial, on 6 October 2009, the father had not complied with that order.  He has still not complied with that order. 

4. The court has the benefit of a Children's and Parents' Issues Assessment report prepared by then family consultant, Mr F, on the first day. 

   
   

   Mr F, at that time, flagged a number of significant issues directly relevant to the best interests of the three children the subject of these proceedings:  S, now aged about 10½ (born in September 1999);  P, now aged almost 10 (born in August 2000);  and C, aged 5 (born in March 2005).  

5. In particular, Mr F, in saying that there were "many concerns with respect to the parents", flagged specifically past substance abuse (opiates).  Each of the parties told Mr F that they did not suffer from any addictions or withdrawal now.

6. Mr F also indicated that "both parents had mental health issues", the mother suffering from anxiety and depression and the father having had a history of schizophrenia and a brain injury from a car accident.

7. Mr Dooley was appointed as the Independent Children’s Lawyer in this matter.  I made a number of orders involving Mr Dooley in a process designed to provide the court with significantly more data directly relevant to the best interests of these children.  In particular, leave was granted to the Independent Children’s Lawyer to issue subpoenae to a number of institutions, including one of the state's correctional centres, the Queensland Police Service and a hospital. 

8. There have been difficulties in Mr Dooley obtaining from the court copies of the documents requested by him and investigations will be carried out so as to ensure that Mr Dooley receives those documents in due course. 

9. Invoking Division 12A of the Family Law Act 1975, I indicated to Mr Dooley, at his request, that he provide from the bar table some evidence of what is contained in those documents.

10. Mr Dooley indicated that the father had some objections to some of that information being provided to the court and, at this relatively early stage in the proceeding, and particularly given that the documents themselves were not available to the court, Mr Dooley declined to put those matters before the court. 

11. However, Mr Dooley was able to tell the court that the documents inspected by him revealed a significant criminal history on the part of the father and, during periods in which he has had contact with the Queensland Department of Corrective Services and the state's health services, that he has had significant contact with psychiatric services, including for, what the documents revealed is a diagnosis of schizophrenia. 

12. The documents reveal a lengthy criminal history, and indeed, the father tells the court today that he is currently facing charges of, it is thought, attempted unlawful use of a motor vehicle and public nuisance.  He tells the court that he intends pleading not guilty to those charges.

13. The best that can be said about those charges is that there is to be some form of court hearing in respect of them (I gather some form of mention, but this is not clear) in early March.

14. The parties were also directed to participate in random drug screening at Mr Dooley's request.

15. Mr Dooley informs the court that the mother has complied with those requests and that the reports indicate that she is clear of illicit drugs.  Mr Dooley has made two requests of the father.  He admits that he has not complied with those requests.

16. Mr Dooley also arranged for a family report to be prepared by Mr F who had seen the family earlier for the purposes of the children's and parents' issues assessment report and also for the parties to be seen by Dr K. 

17. The evidence reveals, plainly, that the father has, in the past, failed to attend upon Mr F for interviews connected with processes to be conducted by him.  Circumstances such as that, with respect to Dr K, would involve the payment of cancellation fees which are not met by grants of Legal Aid to Mr Dooley.

18. Those circumstances have resulted in solicitors in the position of Independent Children’s Lawyers, including Mr Dooley, having themselves to meet the psychiatrist's cancellation fees from their own pocket. That was a consideration for Mr Dooley, who had, by that stage, also examined a significant volume of subpoenaed documents which contained a number of psychiatric reports from various people within them.  In the light of each of those considerations, Mr Dooley did not press the father to see Dr K. 

19. Dr K did, though, see the mother on 16 December 2009.  Dr K also had reference to a number of documents which are set out in his report.  The mother's family history was a matter of considerable concern to Dr K, and understandably so.

20. He records that the mother was sexually abused by her brother between the ages of four and six and raped by a partner early in a relationship.  She also told Dr K that her father had apparently overdosed recently and her sister:

    …has also had problems and both have been to […] Hospital.  Both have troubles with alcohol and this lady reports that she is improving and stabilising her life; the rest of her family seem to be falling apart.

21. Ultimately, having obtained a history and conducted a mental state examination of the mother, the doctor concluded: 

    This 27 year old lady has a long and complex history of significant personality dysfunction and the dependence spectrum, coupled with some borderline trays.  There is little doubt that she has mixed anxiety and depressive symptoms over the best part of 15 years and this has been complicated by substantial substance abuse issues.  Despite all of this, she has really had, at best, fairly limited contact with the criminal justice system and appears, over time, to have essentially reorganised her life.

    There is little doubt that this lady currently appears quite stable and I note that she is having ongoing psychological treatment and, indeed, appears to have, by and large, accessed this at times of considerable difficulty in her life.  I consider that a maintenance of the currently stable situation for the mother, who is, and has been for a considerable period, the primary carer of these three young children, is a significant and important aspect of any orders arrived at with respect to their best interests.

22. Mr F completed a family report dated 25 January 2010 based on interviews that took place during November 2009.  The report is also based on observations made by Mr F at the Family Court of Australia on 18 January 2010.  Mr F also had access to the documents on the court file. 

23. The material reveals that the father has not spent time with the children for a considerable period of time, probably since about 2007.  With that in mind, I had previously ordered a process pursuant to section 65L of the Act.  As Mr F correctly comments in his report:

    The initial intention of the section 65L process was to allow for visits between the children and their father to occur at least once a month for periods of up to 2 hours.

24. Mr F comments, “Only one visit occurred, on 18 December 2009, for less than 30 minutes.”  The father did not attend for the first scheduled visit on 17 November.  Mr F records that attempts were made to contact the father and: 

    After allowing more than an hour I explained to the children that there must have been some sort of mix up by me and I apologised to them.  [S] appeared tearful and [P] appeared angry.  On the same day I spoke by telephone with the paternal grandfather.  He advised me that [the father] was very excited about seeing the children, that he had bought presents for them and he had left for the visit at 8.30 am that day - several hours in advance of the afternoon visit.

25. The father contacted Mr F the following day to advise that he'd been arrested and had been held overnight by the police. 

26. Mr F reports on the visit that took place on 18 December 2010. I had expressed concerns during the first day of hearing, at which Mr F was present, about the appearance of the father.  Mr F says in the report that the father told him that:

    The last time he was at the court he was 'spaced out' and he believes that this was due to a clash of his medications.  He said that they were interacting in such a way as to make him look drunk.  He said that his mother manages his medications for him.   He said that he has dealt with the clash of medications.  He was asked who he went to about this and he became agitated.  He said he did not see any need to tell me which doctor he has seen.  Why should he and why shouldn't I tell him who my doctor was.

27. It should be said that the father exhibited a similar attitude today when asked whether he had complied with the requests of the Independent Children’s Lawyer for drug testing. 

28. Ultimately, Mr F noted that the children had not spent time with their father since 2007, that is, for more than two years prior the interviews that Mr F conducted.  Mr F concludes: 

    Regrettably there is significant information to suggest that the father cannot adequately meet the needs of the children.  From a structural viewpoint he has had very little involvement in their lives.  He has a prolonged criminal history and faces further charges.  He has had a long‑term opiate addiction and his presentation at the court on 18 December 2009 is entirely consistent with opiate intoxication. 

    I am also concerned that the father, if given a chance to do so, will not hesitate to denigrate the mother and rewrite a history of events for the children in order to justify his absence from their lives.  He will attempt to entice or manipulate the children to live either with him or his parents.  This will do little but destabilise the children's view of their mother and help to jeopardise her authority and control over them.  This is an authority and control which is already weakened by virtue of her vulnerabilities and the structural history.  The father, in interview, makes clear that he sees nothing wrong with his actions in this regard.

29. It will be plain, from what I have said with respect to the report prepared for the court by Dr K, that I agree with this assessment.

30. Mr F ultimately opines:

    I have significant concerns at this stage about the father's capacity to spend time with his children unless it is supervised by a professional that can assess the father's presentation in a controlled physical environment.  The father presents as defiant, difficult to engage, hostile and aggressive with no insight whatsoever into his limitations as a parent.  I have no confidence that the supervision can be met by a family member in a more natural setting as in my view the father will not tolerant instruction.

31. I should say (within the confines of an interim hearing and its inherent significantly truncated hearing), I agree with the assessments put forward by Mr F, which are, I should say, entirely consistent with my own view of such evidence as I have had in this matter and the presentations of the father in my court. 

32. Mr F goes on to say: 

    This is regrettable for the children in that such structure severely limits the scope that they can develop a meaningful relationship with their father.  [P], in my view, presents as wanting his father's attention and validation.  [S] presents as withdrawn, cautious and uncomfortable when it comes to [the father]. [C] appears quite comfortable in the presence of his siblings with his father and there is some benefit for him, in my view, to gain some independent information about his father if, of course, it is safe to do so.

33. In light of those opinions, and the analysis conducted by Mr F, he ultimately recommends that the children spend time and communicate with their father at Y Centre which is a contact centre situated on the Sunshine Coast, subject, of course, to the availability of that centre.  Mr F suggests, though, that the time there should not occur more than once each two months. 

34. I have already indicated that the father has failed to comply with orders that require the most basic of information for this court to hear and determine the proceedings before it.  There are, thus, no documents whatsoever before the court that outline what the father might want with respect to parenting orders, either in the short‑term or by way of final orders.

35. After a process attended by some difficulty, it emerged, after questioning by me, that the father sought, it seems, time with his children on a Sunday once a month supervised by his mother.

36. Being as fair as I consider it possible to be to the father, I think his position can be summed up as follows.  He says that, "I just want to see my children."  Beyond that, it appears to me that the father has either not been capable of, or alternatively is unwilling to, articulate, with any sort of precision at all, what sort of orders he might seek in the children's best interests.

37. It will be evident, from what I have said, that this Court should have very real concerns about the nature and structure of orders that best meet the best interests of these three children on an interim basis.

38. I am certainly not persuaded that there should be any more time than what Mr F recommends, that is to say, not more than once each two months and I am certainly not persuaded that the time between the father should occur other than at a contact centre.

39. The latter will allow expert monitoring of the time between the children and the father so as to ensure their best interests and will also provide the court with reliable information about the father's willingness and capacity to attend any such periods as might be arranged and, indeed, his willingness and capacity to arrange such things as need to occur to facilitate that time.

40. I have previously made orders with respect to the arrangements that should apply so as to have this matter proceed to a hearing, if that is what is going to occur.

41. I have made it plain to the father today that this court has given him considerable indulgence in respect of the filing of material.   I have also made it plain to the father today that these court proceedings and, in particular, the involvement of Mr Dooley, involve significant expenditure of public funds.

42. I will not permit the further expenditure of public funds in circumstances where parties to proceedings are unwilling to articulate the orders that they say, as a parent of children, are orders that are in the best interests of those children.

1. In previous orders made by me, I have made it abundantly plain, as I have again today, that the processes of this court should take account of the fact that, through no fault of his own, the father is illiterate.

2. With that in mind, Mr Dooley has kindly agreed, notwithstanding what might be limitations in the grant of Legal Aid given to him, to facilitate the explanation of the orders made by me and the requirements of the court for the filing of material to be given to the father by his mother and, to that end, has agreed to take all reasonable steps that he can to communicate, in a manner that will readily be understood, so that the father's mother can communicate those requirements to him orally. 

3. In a similar vein, I have ordered today that the father provide a response and a document, not necessarily sworn, that sets out, in simple language, the basis of the orders sought by the father.

4. I have again made it plain to him today that I do not expect that either document will be necessarily in the nature of a "legal document", but rather the documents are intended to set out, in a simple and understandable way, precisely what it is that the father is seeking by way of orders from this court and the reasons for seeking those orders.

5. Again, Mr Dooley has kindly agreed to explain those requirements to the father's mother so that they can be explained to him by her and to request of the mother that she facilitate the writing of those documents for him, given his illiteracy. 

6. I should also say, for the sake of completeness that I am aware of the presumption of equal shared parental responsibility.

7. I make it plain, so that it is clear, that, by reason of the facts and circumstances earlier referred to, and, in particular, the reports prepared by Mr F and, to a lesser extent, Dr K, that I consider that the presumption is rebutted in this case in respect of the interim orders made by me by reason of the best interests of the three children.  I will order accordingly. 

8. I will order that a copy of my edited reasons be provided to each of the parties expeditiously.

9. And again, I will ask Mr Dooley to forward a copy of same to the father's mother as well, so that they might be explained to him and so that, on the next occasion, on 18 May, I can be in a position where I can say, as it were with a clear conscience, that every attempt has been made to facilitate the father being able to put forward the case that he seeks to put forward with respect to the best interests of the children.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 March 2010