Shoretsky and Shoretsky (No 2)

[2014] FamCA 1028

FAMILY COURT OF AUSTRALIA

SHORETSKY & SHORETSKY (NO. 2) [2014] FamCA 1028

FAMILY LAW – CHILDREN – First Day of hearing of parenting proceedings – matter referred to Round Table Dispute Mediation – father resistant to further psychiatric assessment as recommended by former expert.
APPLICANT:	Mr Shoretsky

RESPONDENT: Ms Shoretsky

INDEPENDENT CHILDREN’S LAWYER: Mr Lampe

FILE NUMBER: MLC 390 of 2013

DATE DELIVERED: 29 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT

 CHILDREN’S LAWYER:

Mr Lampe

Orders

IT IS ORDERED THAT:

1.This matter be listed for mention before me in Court immediately following the conclusion of the Round Table Dispute Management Conference for which I hereafter make provision.

2.That the mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through Victoria Legal Aid, as soon as practicable and the independent children’s lawyer notify my Associate– email - … - as soon as possible of the date and time of the conference, once appointed.

3.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Round Table Dispute Management:-

a.      any family report;

b.      any Children and Parent’s Issues Assessment;

c.      any court documents and reasons for decision; and

d.      any other report by a professional in this matter that the independent children’s lawyer considers is necessary including those annexed to the father’s affidavit affirmed on 18 January 2013.

4.IT IS REQUESTED that the family consultant, Dr M, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 2 of this Order.

5.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and published to the parties and also a copy be provided to the mediator for the Round Table Dispute Management Conference.

IT IS DIRECTED:

6.That the documents provided by the father be photocopied and placed on the Court file as Exhibit “F1” and a copy be sent to the independent children’s lawyer and to the mother and the originals returned to the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shoretsky & Shoretsky 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: MLC 390 of 2013

Mr Shoretsky

Applicant

And

Ms Shoretsky

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex-tempore

1. These proceedings are initiated by the father’s application filed on 22 January 2013 in which he seeks to spend time with the children of his relationship with the mother, Ms Shoretsky.

2. The children who are directly relevant to these proceedings are B, who is now 14-years of age;  C, who is 10 years old and D, who is nine years old.

3. The father seeks time with the children.  He has not seen the children since May 2011.  The mother opposes any time between the father and the children.  There are currently intervention orders.

4. The matter is listed before me today as the first day of the final hearing and the parties were duly notified of that by correspondence from my chambers which indicated that they should be ready to proceed.

5. The mother has not attended court today; she is ill.  However, she has participated by telephone.  The father has attended and was punctual in doing so and has obviously put some thought into preparation of his case for today.  The father attends with the support of an accompanying person who sat in the body of the court.

6. The court has previously had the assistance of a report from Dr M, a family consultant.  I have read the report.  The report has not been tested in cross-examination and accordingly I don’t accept everything that the report says.  The parties will be able to cross examine the author of the report, if they wish to do so, before I make a final decision.

7. One of the purposes of today was to investigate and decide what further evidence is necessary for the matter to proceed to a final hearing with evidence, cross examination and submissions.  In that respect, the independent children’s lawyer prepared a minute of order in which he sought a further family report and also a psychiatric assessment of the father.

8. In the family report of Dr M, dated 4 November 2013, she describes the issues in dispute as:

   ·The Father’s parenting capacity

   ·The stability of the Father’s mental health

   ·The Father’s capacity to spend time with the children

   The family consultant identified the following issues during the assessment:

   ·The Father’s incapacity due to his mental illness

   ·The Mother’s limited cognitive capacity

   ·Allegations of family violence by the Father toward the Mother and children

9. The father works part time.  He suffered work-related injuries as long ago as 2009 and 2003. 

10. The father affirmed an affidavit on 18 January 2013 in which he annexed various materials, including a report from X Mental Health dated 8 November 2012, directed to his then solicitor, Ms Sharon Kym of Victorian Legal Aid.  It details a history of psychiatric illness, including one admission to the facility in July 2011.  The report was about the husband’s then current capacity to provide instructions for proceedings but did specify that he had been prescribed antipsychotic medication during his stay at Z Hospital and that he would likely benefit from therapeutic treatment as well as to continue taking the antipsychotic medication.

11. A more focused report as to the father’s capacity to give instructions, was prepared by Associate Professor Y of the U Clinic.  That is dated 14 November 2012 and was obtained by Ms Kym from Victoria Legal Aid and is also filed.

12. Dr Y said, in his report, in response to several questions posed for him as follows:

    80. Whether your client suffers any psychological conditions and whether they are of a temporary or a permanent nature.

    In my opinion your client suffers from a chronic paranoid schizophrenia.  There has been a recent exacerbation of that psychotic illness.  Your client has persistent mistaken belief systems related to conspiracy and suspiciousness.  There are somewhat bizarre symptoms elicited from time to time, such as the presence in the general practitioner’s surgery before referral to the primary mental health team in early 2011.

    I assessed your client on 21 October 2012 and I found him evasive, guarded, rigid and controlling and out of touch with reality.  He persistently had difficulty changing his mental set.  He was preoccupied by the issues of compensation and the wrong doing of other persons.

    He was not able to reflect, or stand back and give thoughtful consideration as to why the marriage had dissolved and Intervention Order was taken out against him.  That is, he is not insightful.

    In my opinion your client does not suffer from brain damage.  In my opinion referral to a psychologist is not warranted.

    In my opinion there is no substance misuse disorder.

    81. The nature and severity of any symptoms my client experiences, if any, and the extent to which they affect his mental capacity and his ability to give instructions in any legal proceedings.

    Your client has a psychotic condition.  He is out of touch with reality, He is preoccupied by the wrong doing of others.  He believes that he is subject to conspiracy and surveillance. 

    As the psychotic symptoms pervade his thinking, it is my opinion, that his paranoid beliefs will flavour his instructions to you, and he will not be able to instruct you in a rational way, or be able to consider appropriate legal advice to you.

    82. Any future treatment proposals which could assist his rehabilitation.

    As noted above your client is not insightful.  He lacks judgement.  He does not wish to take anti-psychotic medication, though he said to me that he did.  He requires the attentive care and the ongoing prescription of anti psychotic medication by appropriately qualified treating psychiatric staff.  He should be assessed and his psychiatric treatment monitored by a consultant psychiatrist.  He requires ongoing assessment, monitoring and review of his mental state when living in community.

    At the present time, I am doubtful that he meets the criteria for involuntary care under the Section 8 provisions of the Mental Health Act 1986. He is not insightful. He is irrational. However there is no clear evidence that he meets all five criteria under Section 8 of the Mental Health Act 1986. In particular I do not think that he requires immediate involuntary care or that he is a risk to self and others.

    In my opinion, he requires compulsory treatment only in the circumstances where there is a further exacerbation of his psychotic condition giving rise to immediate and significant deterioration of his mental health.

    83.  Whether or not you consider that the client’s children would be at risk when spending time with your client.

    Your client’s parental ability is impaired because of mental illness.  His ability to adapt to the changing needs of his children, to protect them, and to instruct them, is impaired because of his mistaken, paranoid beliefs.  Your client’s mistaken beliefs pervade his view of the world.  He is unable to separate reality from his irrational beliefs.

    That said, there is no, in my opinion, imminent or foreseeable physical risk to the children’s welfare.  This risk for your client, in my opinion, is for the long term progressive deterioration in his mental health, leading to alienation and isolation from his family and society.   The risk to the children, in my opinion, is not about their physical health; rather it is the risk that they will be subject to the father’s mistaken beliefs and irrational ideas, thus leading to a distorted view of their family and their environment. 

    I am not aware of the circumstances of the Intervention Orders which was applied for in May 2011.  There is the potential that a paranoid person will be argumentative, stubborn, rigid and unyielding in their belief systems and may be critical, angry and dismissive of those other persons, which may include the children, who do not agree with their mistaken beliefs.

    84. Any other matters that I consider relevant.

    There are no other matters I consider relevant.

13. Today the father attends court, with a bundle of documents.  I have extracted some documents.  One is from an imaging group in relation to physical injuries and I will leave that to one side.  The other two documents are in relation to the father’s mental health.

14. A general practitioner, Dr H, says that the father suffers from depression and anxiety and a panic disorder, for which he has psychological treatment by a psychologist and “his mental condition has been stabilised.”  The doctor goes on to say,

    Main issue bothering him [the father] the most at this stage is lack of access to his children.  As his mental condition has been stabilised, it would be helpful for him if he could have access to his children as he is mentally fit at this stage to look after them.

15. There is a one page letter from a psychologist, Mr R, dated 21 May 2014.  Amongst other things, that psychologist opines:

    His symptoms of depression and panic have been stabilised in the course of treatment.  However, his main concern currently is to have full access to his children and to be able to partake his share of parental responsibility.  He would benefit from obtaining some legal advice as to how to approach this matter.

16. The last sentence is an understatement.  Unfortunately, the father does not have a lawyer and there is no likelihood of him obtaining one.

17. Notably, neither the general practitioner nor the psychologist discusses the father’s history of requiring anti-psychotic medication or, necessarily, why he does not need it now. 

18. In spite of trying, I was not able to make the father understand that so far the evidence filed in this case does not support him having a re-introduction of time with any of the children of the marriage and that it may be in his interest to submit to the further psychiatric assessment that is proposed by the independent children’s lawyer.

19. The father repeatedly said that he is fine now.  He says that there will be proof that he can cope with the children when he gets to see the children.  I was at pains to explain to him that he will not get to spend any time with the children for the purpose of proving or satisfying the court or anyone else that it is appropriate that he have that time.  I stated that the court would need to be independently satisfied that it is in the childrens’ best interest to see him again, regularly or at all, before the time takes place.

20. Mr Lampe has indicated that he will apply for a round table dispute management conference in this matter.  What may be discussed at that conference is up to the mediator but it ought to include the father having some time with the children.  The mother says that she will not agree.  If there is no agreement, that is fine.  The matter will ultimately be determined by the Court on whatever evidence is then before the Court.  However, before it is determined by the Court I would be indebted to whoever conducts the mediation, to try to make the father understand the importance of putting proper evidence before the Court.  That is evidence that might assist his case and might assist him in getting what he wants.  It does not mean the Court will accept it but, at the moment, unless he has some better evidence of his psychiatric health than he currently has the prospect of him being successful and obtaining supervised time does not look good.

21. There is evidence that he has previously put before the Court, which makes it clear that he required and should be taking antipsychotic medication.  The medical practitioner and the psychologist, upon whose letters he now seeks to rely, do not mention the antipsychotic medication.  There is nothing to indicate to me that they have considered that he did have it but now does not need it or that his condition has improved to that degree.  That is why an assessment by someone who either has known the father in the past, such as Dr Y, or another clinician nominated by the independent children’s lawyer would likely progress the matter.

22. At the end of the day, however, I will not compel or force the father to go to a psychiatric assessment in which he does not want to participate.  That is because, in my view, a psychiatric assessment is a very personal and intrusive process and, if the person undergoing it is resistant, then it seems to me it is not going to be particularly productive or informative for the court.  The risk the father runs is that if he does not have evidence that supports his application, his application will fail. 

23. Ultimately I will decide this case based on the behaviour of the parties and the history of the matter, as I then understand it to be, probably assisted by a family report for which the relevant children, and their older siblings, will have been interviewed.  I do not make the order for the family report at this stage.  Mr Lampe is content to have the round table conference first.  If there is no agreement about a further psychiatric assessment of the father, the case may proceed to a family report at that stage.

24. If any party is going to make an appointment of a case guardian for the father, they should do so promptly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 October 2014.

Associate: 

Date:  12 November 2014