PRENTICE & PRENTICE

[2016] FamCA 1143

FAMILY COURT OF AUSTRALIA

PRENTICE & PRENTICE [2016] FamCA 1143

FAMILY LAW – CHILDREN – Best Interests – Where the applicant father suffers from Bipolar Affective Disorder – Where the father’s mental health has deteriorated resulting in his incarceration – Where the father was transported from prison to a mental health facility and has since been transferred back to prison though still separate from other prisoners – Where the father’s solicitor has filed a Notice of Ceasing to Act and informed the Court that the father no longer wishes to press his application for a final parenting order – Where it is in the children’s best interests for the mother to have sole parental responsibility. 

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Prentice

RESPONDENT: Ms Prentice

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland

FILE NUMBER: BRC 7775 of 2012

DATE DELIVERED: 22 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 22 November 2016

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Ms Wardle

SOLICITOR FOR THE RESPONDENT: Compass Legal Solutions

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

1. The children, Y born … 2004 and X born … 2009, (“the children”) shall live with the mother.

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

3. The children shall spend no time with nor communicate with the father.

4. All outstanding Applications and/or Responses are dismissed and the matter be removed from the list of cases pending determination.

5. That the Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prentice & Prentice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7775 of 2012

Mr Prentice

Applicant

And

Ms Prentice

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Listed before me at 10.00 am this morning for mention were the parenting orders proceedings in this matter between the applicant, who is the father of the two children the subject of the proceedings, the mother, and an Independent Children's Lawyer, who has been in the matter now for some time.

2. The children I have just referred to as the subject of the proceedings are Y, who is 12 years of age born in 2004, and X, who is seven years of age born in 2009.  They live with their mother.

3. The father and the mother met in August 2000 and married in 2004.  They separated in June 2011.  They had their marriage dissolved on 20 December 2014.  They were together for about 11 years.  It was during that marriage that their two children were born. 

4. Rather unfortunately, as it is for all those who are inflicted with this type of illness, the father suffers from what has been diagnosed by psychiatric experts as Bipolar Affective Disorder. The evidence I have read seems to support a finding that he has suffered from that disorder from as early as 1998.  The mother in the case says she first saw seriously worrying symptoms of that disorder manifest themselves in 2000 when she witnessed her then husband perpetrate some serious violence on a former partner. 

5. I have also seen reference in reports of psychiatric expert Dr V to incidents of cycling into the manic phase of the Bipolar Disorder on numerous occasions in the years since 2000, particularly before the separation of the parties in 2011. 

6. No doubt, I accept, because of her concerns for the wellbeing of her two children, then much younger than they currently are, after her separation from their father, the mother clearly took steps to regulate, if I can describe it as that, the children’s time spent with their father and the communication they have with him.  In 2012 the father commenced proceedings in this court seeking parenting orders, apparently unhappy and dissatisfied with the nature of his co-parenting relationship with the mother and the time that the mother was permitting those two young children to spend with him. 

7. Sometime ago, the matter was listed for trial for four days commencing today.  The father was represented by family law solicitors until very recently and affidavit material in which he deposes to his evidence-in-chief in support of his application was filed on 16 August 2016. 

8. However, on 25 October 2016, at the urgent request of Ms Cornell, solicitor who was acting for the father, I listed the matter for an ex parte mention.  Ms Cornell informed the Court that she and the principal of the firm she worked for, had sought advice from the Queensland Law Society who had apparently informed them that the appropriate thing for them to do was ask the Court for the ex parte urgent hearing that she did.  On that day, one of the first things I told Ms Cornell was that the recording of the proceedings would continue as normal and that I would be directing that a transcript be made available to the other parties if I determined that that was appropriate.

9. It became clear to me on that day very quickly that there was really no need for the proceedings to be heard ex parte with some degree of privacy or secrecy surrounding them,  having regard to the central issue in the case, that being the best interests of the children.  I made that clear to Ms Cornell but I did not thereby direct any serious criticism at her as she told me that she was acting on advice and would follow any directions that I made in respect of informing the other parties as soon as possible of what was happening.

10. What became clear that day, on Ms Cornell’s information to the Court, was that on or about 12 September 2016, that is a couple of months ago, her client, the applicant father in these proceedings, had been remanded in custody at B Correctional Centre. On 28 September, with the prison having serious concerns about his mental state, they transferred him to a secure psychiatric intensive care unit attached to the C Ward of the A Hospital where she visited him and determined quickly that she had serious concerns about his capacity to be giving her instructions in relation to this matter.

11. It is the case that the father was arrested in late August and taken into custody and charged with a number of offences, including failing to appear on previous charges that had been laid against him earlier in the year, possession of a drug, which I understand was oxytocin, and possession of a knife.   Those charges in themselves would not necessarily lead to a refusal of bail when the defendant appeared for the first time before a Magistrate.  But, the circumstances of this case, particularly those surrounding the father’s mental health and concerns had earlier this year and throughout this year, no doubt, ultimately persuaded a Magistrate that bail ought not be granted to the father. 

12. As I have already acknowledged, when the father was in custody at the B Correctional Centre, his mental health continued to deteriorate to the point where he was placed in a mental health ward.  I assume that was for his own protection and for the protection of others in the immediate environment of the B Correctional Centre where he was held. 

13. I determined on that day, 25 October, 2016, that this trial should be vacated and that the matter be mentioned before me today as it was clear it was not likely to be able to go to trial.  I ordered that a transcript of that day be provided to the other parties.

14. This morning, Mr Bunning of Counsel appears instructed by the Independent Children's Lawyer. Ms Wardle of Counsel appears for the mother, instructed by solicitors who act for the mother, and there is no appearance by the father or on his behalf. I was informed of certain communication going between Mr Bunning of Counsel and Ms Cornell, the solicitor who has acted for the father.  I was told that Ms Cornell had filed a Notice of Ceasing to Act. 

15. I was told a number of other things, but ultimately thought it best to get Ms Cornell on the telephone. She informed me that she had filed a Notice of Ceasing to Act; that the Legal Aid Office had cancelled the grant of legal aid for the father to continue to be represented in these proceedings; that the father had been returned from the particular mental health facility that I mentioned earlier, back to the B Correctional Centre, but was being housed there in a special facility where he continued to be attended upon and treated by doctors. 

16. The conclusion that I can take from that is that although he was well enough to be removed from the intensive care mental health facility at the hospital, doctors and prison officials have not yet determined that he is well enough to go back into the normal prison population at the B Correctional Centre. 

17. Ms Cornell also told the Court that she had received communication from the Independent Children's Lawyer by way of a letter last week telling her of the orders that the Independent Children’s Lawyer was going to be seeking today, namely final orders that are very simple.  They are that the children live with the mother; that the mother has sole parental responsibility for them; and that they have no time with or communication with the father.

18. Ms Cornell told the Court that she had sent a copy of that letter to the father and explained to him what that meant.  She told the Court that she explained to him that he of course had a right to apply to the Court again for parenting orders and she added that she told him “if circumstances changed”.  She also importantly told the Court that the father had informed her that he did not intend to have any one appear for him at court today, he did not intend to seek to appear on his own behalf, and he did not intend to oppose the application that he was told the Independent Children's Lawyer was going to make.  She said, although she interpreted it in her way and did not ascribe these exact words to the father, that the father had said he did not want to continue on with his application in these proceedings.

19. I have been taken to documents that are in bundles of documents that have been produced pursuant to subpoena issued to the Queensland Police Service and the Queensland Department of Health that evidence serious decompensation or cycling into the worst aspects of the Bipolar Affective Disorder by the father on a number of occasions throughout this year, starting in February.  That evidence is troubling because the father said in his August affidavit that since February he has taken all prescribed medication, and had been stable. Effectively, he was telling the Court that he was alright and that the Court could be satisfied that he was able to spend time with the children in a safe situation, safe for them at least. 

20. The evidence suggests that he has been admitted to hospital on a number of occasions this year, sometimes brought to the attention of medical authorities and also the police by his unwell behaviour being displayed by him in public places on the Gold Coast, such as at the Versace resort, the Hilton Hotel and also in and around the public precincts that attract so many people to Surfers Paradise.  There are other concerning aspects demonstrated by the evidence that I have been taken to this morning and that I have admitted into evidence as exhibits. There are references to him having been recorded as having abnormal views and feelings about his station in life, representing that people such as the President of the USA, Barack Obama, would vouch for him, and having some very abnormal views about and referring to his former partner, the mother in this case, as Paris Hilton.

21. All of that combined with the evidence that he was found with a fishing knife in his backpack and really did not demonstrate any other signs of being interested in or regularly going fishing, though telling the police that he was, draw me inexorably to the conclusion that the father’s assertions that he has been able to keep his Bipolar Affective Disorder under control since February this year cannot be accepted in the circumstances, having regard to the paramountcy of the best interests  of the children.

22. Without, in my view, a need to go through each and all of the factors set out in s 60CC(1), (2) and (3) that must be considered when determining parenting orders and determining what is in the best interests of children, I am quite satisfied in this case that the best interests of the children right at this point in time will be served by making the orders that are urged upon the Court by the Independent Children's Lawyer and supported by counsel for the mother.

23. I made those orders on a final basis.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 November 2016.

Associate: 

Date:  19 January 2017