ROACH & ROACH

[2014] FamCA 719

FAMILY COURT OF AUSTRALIA

ROACH & ROACH [2014] FamCA 719

FAMILY LAW – CHILDREN – Magellan matter – vulnerable child – sibling suicide  – previous recommendation for psychiatric assessment not acted upon – independent children’s lawyer to make application to Victoria Legal Aid for psychiatric assessment of both parties
APPLICANT:	Mr Roach

RESPONDENT: Ms Roach

INDEPENDENT CHILDREN’S LAWYER: Ms Wunderlich

FILE NUMBER: DGC 3207 of 2012

DATE DELIVERED: 21 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr R Connelly

SOLICITOR FOR THE RESPONDENT: Richard Connelly Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYERT: Ms Sevdalis

SOLICITOR FOR THE RESPONDENT: Agricola Wunderlich & Associates

Orders

IT IS ORDERED THAT:

1.This matter be adjourned for mention before me on 9 September 2014 at 9.00 am (“the adjourned date”) and prior to that date the independent children’s lawyer contact my Associate – email … – and the parties, in writing, to inform them of the progress made in relation to the funding by Victoria Legal Aid of the psychiatric assessment and the report of Dr M provided for in this Order.

2.By not later than 11.00 am on Tuesday 26 August 2014 the wife file and serve an affidavit from Dr D of Y Medical Practice or other appropriately qualified person describing the mother’s symptoms on 20 August 2014 and why the mother was unfit to attend Court for this mention at 9.00 am on Thursday 21 August 2014, the prognosis of any condition currently suffered by her and whether the wife was referred for any tests or investigative procedures.

3.The independent children’s lawyer do all acts and things necessary to request that Dr M, paediatrician, of B Medical Practice prepare a report in which she details the current conditions for which she treats the child C born … 2005 (“the child”) and her prognosis of the child’s condition(s).

IT IS DIRECTED THAT:

4.The letters from Dr M dated 1 February 2012 and 7 August 2013 be marked Exhibits “ICL 2” and remain on the Court file.

5.The letter from Detective Sergeant S of Victoria Police dated 19 August 2014 be marked Exhibit “ICL 1” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

6.The independent children’s lawyer forthwith make enquiries and, if possible, reserve appointments with a psychiatrist for an assessment of each of the parents on the basis that Victoria Legal Aid may fund the assessment and preparation of a report.

7.The independent children’s lawyer forthwith make application to Victoria Legal Aid for an extension of assistance to cover the cost of a psychiatric assessment of the mother and of the father to be undertaken by the same expert and to be released as soon as possible.

8.The mother and the father each do all acts and things necessary to cooperate with the provision by them, or through the independent children’s lawyer, to Victoria Legal Aid of information about their respective financial circumstances and in particular his/her capacity (if any) to fund or contribute to the cost of the psychiatric assessment provided for herein.

9.I reserve to the adjourned date the issue of further reportable assessment by a family consultant to follow the publication of any psychiatric assessment.

10.The independent children’s lawyer be responsible for providing any necessary documents to the assessment psychiatrist, such documents to include, but not be limited to;-

a)      the report of Dr M in relation to the child;

b)      the report of Mr E, psychologist, dated 28 June 2013 in relation to the child;

c)      the report of Ms F, Regulation 7 Family Consultant dated 15 August 2013;

d)      the Magellan Report by the Department of Human Services undated; and

e)      my reasons for decision this day.

11.By not later than 1 September 2014 the independent children’s lawyer compile a list of any other documents which in her view ought to be provided to the psychiatrist before his assessment of the parties and circulate that list to the solicitor for the mother and the father and within two working days of receipt by the mother’s solicitors and the father of that list each of them advise the independent children’s lawyer in writing of any documents which they object being made available to the psychiatrist or which they wish to have included in the list.

12.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

IT IS DIRECTED THAT:

13.If it is not already the case, henceforth Registrar Sikiotis be the Docket Registrar for this matter and her assigned Case Coordinator be noted in the records of the Court as the Case Coordinator for this matter.

14.Registrar Sikiotis provide a copy of the reasons for decision this day to the Proper Officer of the Department of Human Services.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3207 of 2012

Mr Roach

Applicant

And

Ms Roach

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as a Magellan matter which requires a final hearing as soon as it can be accommodated after the necessary evidence is collated. 

2. Today the applicant, Mr Roach (“the father”), appears in person and he is accompanied to court by his partner, Ms A.  He represents himself in these proceedings.  He appeared to be reasonably well prepared for today and brought with him documents to do with the proceedings. 

3. Mr Connelly, solicitor, appears on behalf of Ms Roach (“the mother).  The mother does not attend court today.  Mr Connelly read out to me from his mobile telephone a medical certificate issued by Dr D, from Y Medical Practice yesterday, indicating that the mother is:

   ...receiving medical treatment and is not fit for her usual occupation on 20 and 21 August 2014.

   The mother doesn’t work outside the home.  She receives a carer’s allowance for her care of the parties’ son, C (“the child”), and receives reimbursement of expenses and perhaps some income for her long-term care of two foster children.  The medical certificate referred to her by Mr Connelly does not persuade me that the mother was not able to attend court today.  Mr Connelly said that the mother had instructed him yesterday that she was being assessed or tested for Swine Flu.  It seems to me that it would have been easy enough for the medical practitioner to refer to that in a certificate, but he has not.  As a consequence of the ambiguity around the mother’s failure to attend court today, the mother will need to provide an affidavit by her treating doctor as to her specific incapacity, and I have made an order that that affidavit be filed by next week.

4. Ms Sevdalis of counsel appears on behalf of the independent children’s lawyer, Ms Wunderlich. 

5. I have had some general discussions with the parties: fairly much a fact gathering exercise.  The child is under the care of Dr M of B Medical Practice.  She has diagnosed him, I am told, with high functioning autism.  There is some reference in the documents on the court file to Asperger’s Syndrome.  I have two letters from Dr M, dated respectively 1 February 2012, and 7 August 2013.  The most recent “problem list” set out at the heading to Dr M’s letter is “ex 26 weeker, developmental concerns, pervasive developmental disorder – not otherwise specified, recurrent otitis media – current affusion bilaterally, death of an older sibling, estachian tube dysfunction, significant anxiety”.

6. Ms Sevdalis referred me to a comprehensive report by Mr E, a psychologist, dated 28 June 2013, which is annexed to an affidavit by the wife sworn on 29 August 2013.  It appears that report may have been required for the assessment by the child’s school for assistance within the classroom and could also have been used by the mother in relation to her carer’s pension entitlement and other benefits for which the child may be eligible.  Still it seems to me that a report by Dr M, which need not be long, which sets out what she perceives to be any current conditions with which the child is afflicted and her prognosis, would be of assistance. 

7. I will require the independent children’s lawyer to request such a report be prepared and make reference to the fact that both parents consent to that report being undertaken, which is the case. 

RECORDED: NOT TRANSCRIBED

1. These proceedings commenced in October 2012 in the Federal Magistrates Court (as it then was).  There was a comprehensive, and it would appear helpful, report by Ms F, then a Regulation 7 private family consultant.  It’s dated 14 August 2013 and made certain recommendations.

2. I gather that the report was not ever tested in cross-examination.  Amongst the recommendations were that the child continue to reside with the mother and that he spend supervised time with the father at a contact service each fortnight.  Significantly, it was recommended that the father participate in a psychiatric assessment.  That psychiatric assessment was not undertaken.  I don’t know whether the parties ever completed any post separation courses (which were also a recommendation by Ms F). 

3. In any event, the parents reached a resolution of those proceedings and orders were made on 3 September 2013 by consent, which provided for the child to continue living with the mother and to spend time with the father, which was to be supervised by an independent person.  The final resolution deviated from the recommendation of the family consultant.

4. The supervision of time spent was ultimately undertaken by Ms G.  This arrangement broke down in approximately February 2014 after an incident in which the father admits that there was some forceful physical contact between himself and the child.  Subsequently, the child has communicated that he does not feel safe with the time being supervised by Ms G.  As a consequence, the child has not seen the father since late February 2014.

5. Up until February 2014, the father was seeing the child each alternate Sunday between 1.30 and 4.30 pm. 

6. Pursuant to the Order made on 3 September 2013, the proceedings were to be reviewed by Judge O’Sullivan on 3 February 2014.

7. On 24 March 2014 the mother filed an amended response in which she seeks that she have sole parental responsibility and that any time by the father be supervised at a contact centre and the father be restrained from bringing the child into contact with his paternal uncle, Mr H Roach.  Mr H Roach is the only sibling of the father.  He was incarcerated for child sex offences and is currently released from prison on an intensive corrections order.  The father informs me that he doesn’t know where his brother lives.  He hears from his brother perhaps once a month by telephone.  The father confirms that he resides with his parents and his partner Ms A.  Specifically, Mr H Roach does not reside with them.

8. At the same time as filing the amended response, the mother filed a form 4 notification, alleging that the father is currently being investigated by Victoria Police for accessing child pornography and grooming young children for offences committed by his brother.  It was asserted by the mother that investigations were also being carried out with respect to the paternal grandmother for grooming of young children for offences committed by Mr H Roach. 

9. The father informs that his parents are Mr I Roach, who is 71 years of age.  He was in long-term employment until 2000 as a manager in the manufacturing industry.  He currently works as a volunteer for a local government.

10. Ms J Roach is 69 years old.  She was previously employed in a clerical position and does volunteer work together with her husband. 

11. Ms A is the father’s current partner.  She is 42 years old. 

RECORDED NOT TRANSCRIBED

Ms A is not employed outside the home.  She is in receipt of a carer’s pension referrable to her mother who lives in Suburb K.  Ms A has four children.  L is the youngest of those children and currently lives with her father in Suburb N, and is studying or working.  Ms A separated from L’s father some four years ago.  At that stage the four children of that relationship were aged 14, 21, 23 and 25.  All are now living independently.

1. The father confirms that he is now unemployed.  He was a driver who was made redundant from his employment on 18 July 2014.  Since then, he has sought, but not been able to obtain, employment. By the end of this month he will be eligible for and in receipt of an unemployment benefit unless he obtains employment by that time. 

2. The mother, as indicated, derives her income from various Commonwealth or State Government payments.  She is in a permanent relationship with Mr O, who lives at Town P, which is some 45 kilometres east of where the mother lives.  Mr O has casual employment in a retail position. 

3. It’s a worrying matter.  Not only does the child C face some challenges himself, through various medical conditions, but there is an extraordinary family history.

4. A Magellan Report was prepared and submitted by the Department of Human Services. It is undated.  It’s not paginated.  It refers to the event which I have described in paragraph 9 as variously having occurred in February, March and May.

5. I was somewhat concerned upon reading the Report that there were numerous references to statements by Victoria Police in relation to the investigation of the father and the paternal grandmother, Ms J Roach, which don’t seem to be further elaborated on in the Report.  I was left with the concern that these references might just repeat from what the mother was saying, rather than noting any investigation by the Department of Human Services – it is hard to tell.

6. Notably, on the third last page of the report there appears an outcome in which the report writer refers to there being “no clear evidence that the foster children in the care of the mother were subjected to actual sexual exploitation by [the father] when he resided in the home” and that “Victoria Police reported the investigation relating to [the father] possessing child pornography lacked evidence and, thus, was not going to be pursued at that time” and “police criminal history checks have been completed on the mother, Mr [O] (the mother’s partner), the father, the paternal grandmother, the paternal grandfather “all of which returned with no previous or pending criminal proceedings.”

7. It is recorded that a criminal history check on the paternal uncle, Mr H Roach, confirmed “the following convictions:- 2000 – sexual penetration with a child under the age of 10 years, and in 2006 – knowingly possess child pornography”. 

8. The matter went into the Magellan list and was last before the Senior Registrar conducting that list on 12 August 2014.  The Senior Registrar appears to have shared my concerns about the references to ongoing police investigations and directed that the independent children’s lawyer make some inquiries to obtain from Victoria Police whether there was any process actually pending in relation to the father.

9. Today Ms Sevdalis has tendered, and it remains on the court file as Exhibit “ICL1”, a letter from Detective Sergeant S of Box Hill Sexual Offences and Child Abuse Investigation Team, which records: 

   “I am a supervisor for an investigation involving [the child C] where allegations were made against [Mr Roach] (the father).  The investigation is complete and pending closure, the allegations unsubstantiated.” 

   Accordingly, I understand that there are no pending investigations concerning the father.

10. The troubling history for the child is set out in the undated Magellan report.  It appears that the mother has been involved in a series of relationships which she characterises as being extremely violent, and that includes a relationship which precedes the relationship that she had with the husband.

11. She has five children, one of whom sadly took his own life in 2008.

RECORDED:  NOT TRANSCRIBED

Q, who was then 15 years old, asphyxiated himself by placing a plastic bag over his head. The mother asserts that the atmosphere within the home at that time was in some way responsible for Q taking his own life and that the father was a protagonist in the unsatisfactory arrangements.

1. The DHS records indicate that between 26 June 2013 and 2 July 2013 there was concern about the child C stating that he wanted to kill himself. 

2. I have not read all of the court file, but there is reference in it to the father having previously been diagnosed with a personality disorder and paranoid tendencies.  It appears that there may not have been any formal diagnosis.

3. There doesn’t appear to have been any diagnosis or assessment of the mother for psychiatric or psychological disorders.  However, the narrative in the Department of Human Services report and in the family report leave me in no doubt that the court would be assisted by a psychiatric assessment of the mother which does also take into account any underlying psychological disorders or conditions. 

4. Unfortunately, the independent children’s lawyer had not done anything to arrange the psychiatric assessment to be completed before now.  I do not know why.

5. I am satisfied that it is necessary that both parents be psychiatrically assessed by a psychiatrist who was also prepared to comment on any psychological difficulties.  That should be done before there is any further reportable assessment by a family consultant of this Registry. 

6. It does not appear, on what I have learned of the parties’ circumstances today, that either parent has the financial means to commission a psychiatric report privately.  The independent children’s lawyer made investigations about a private psychiatric report but did not take the matter any further.  That is unfortunate.

7. A publicly funded report, that is, one for which the independent children’s lawyer makes application to Victoria Legal Aid for an extension of assistance, will depend on the financial circumstances of the parties and apparently their partners.  I will make an order that the independent children’s lawyer make that application to Victoria Legal Aid and I will require each party to cooperate with an assessment of their respective financial positions. These reasons should be sent to Victoria Legal Aid.

8. The counsel for the independent children’s lawyer has referred to the expert psychiatrists, Dr R, Dr U, and Assistant Professor T. If funding is granted, the issues will be whether a practitioner can be located who is prepared to do the assessment for that fee and when the parties can be seen.

9. In my experience, all of the practitioners mentioned are prepared to make some comment about the functioning of the parties even if they do not fall within the specific criteria of psychiatric illness and the dynamic between them, and that nature of assessment would be of assistance. 

10. I will adjourn the matter for one month, by which time I expect that the application will have been made to Victoria Legal Aid and that, if successful, the appointments for a psychiatric assessment will have been made and the parents notified.  At that stage, I can then make some assessment of when the psychiatric assessment will be available and when it’s appropriate to have a section 62G Family Report prepared by a family consultant attached to this Registry.

11. I can indicate now that the report writer will not be Ms F who was formerly a Regulation 7 family consultant but is no longer.  It’s appropriate in a Magellan matter that the report be handled within the court, and it will be a family consultant in the employ of the court. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 August 2014.

Associate: 

Date:  2 September 2014