SWANSON & PATON

[2015] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWANSON & PATON [2015] FCCA 1541

Catchwords:
FAMILY LAW – Parenting – 14 year old child with type 1 diabetes – father’s untreated mental health issues – father’s behaviour – child would be at unacceptable risk if father spends time with child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Waterford and Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR and GR [2010] HCA 4
M and M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-655
Licha v Wunscher [2008] FamCA 147
Innocente and Innocente [2007] FamCA 586

Applicant: MR SWANSON

Respondent: MS PATON

File Number: MLC 280 of 2014

Judgment of: Judge Harland

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Melbourne

Delivered on: 5 June 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Grabau

Counsel for the Independent Children's Lawyer: Mr Marchetti

Solicitors for the Independent Children's Lawyer: David Stagg Tonkin & Co

ORDERS

1. That the mother have sole parental responsibility for X (“the child”) born (omitted) 2001.

2. That the child lives with the mother.

3. That the father be and is hereby restrained from contacting or communicating with the child save in accordance with these orders. 

4. That the father be permitted to provide copies of the child inclusive memorandum, the family report and Dr W’s report to any person treating him.

5. That the father may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post provided by the mother and the mother shall do all things reasonably necessary to deliver such items to the child provided that the mother be at liberty to open and read items of correspondence and inspect gifts and, in her absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.

6. For the purpose of order (5) the mother will advise the father of a postal address, which need not be her residential address, within 28 days of the date of these orders.

7. That the mother does all things reasonably necessary to encourage the child to send letters, cards and gifts to the father by ordinary pre-paid post.

8. That it be within the absolute discretion of the mother to determine :

   (a)whether the father may spend time with the child, and the time, duration and place at which that may occur;

   (b)     whether any such time be supervised and if it is :

   (i)     the nature of such supervision;  and

   (ii)    the identity of the supervisor; 

   (c)whether the father can have telephone communication with the child; and

   (d)     the nature and extent of any such telephone communication;

   and unless the parties agree to the contrary, the costs of any supervision of the father’s time with the child be borne by the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 280 of 2014

MR SWANSON

Applicant

And

MS PATON

Respondent

REASONS FOR JUDGMENT

1. This has been a confronting case for the father. He will have difficulty accepting the outcome of the hearing. He loves his daughter and wants to continue to have a close and loving relationship with her but he is not safe for her.

2. The parties’ daughter X is 14 years old. When she was 10 years old she was diagnosed with type 1 diabetes which is a serious chronic disease which can be fatal if not treated properly. It is a burdensome disease for an adult to have, let alone a child.

3. By the end of the hearing the Independent Children’s Lawyer submitted that the court is faced with 3 stark choices. Those being:

   a)To order that the father have unsupervised time;

   b)To order that the current arrangements continue whereby the father sees X for 3 hours on the third Sunday of the month supervised by his parents;

   c)That the father have no face to face time with X.

4. The father seeks an order for equal shared parental responsibility. He wants to have X in his care on alternate weekends and half school holidays. He says there is no need for his time to be supervised. He says his parents agree with him and does not know why the order is there. It is clear from his evidence that his parents do not in fact supervise his time although they are generally present. The father did not seek to have his parents give evidence. The father did not call any supporting witnesses in his case.

5. The father filed two affidavits in this case on 15 January 2014 and 27 January 2015.  Both affidavits were prepared by his former Legal Aid lawyer.

6. The father says that the parties were in a de facto relationship from 2000 until 2010. The mother says they were only in a relationship until 2002 or 2003 but the father lived in a shed on her property from that period until 2010. The father seemed to agree that he lived in the shed. In 2010 the father moved to (omitted). He lives on an isolated property there.

7. In his first affidavit the father says that his car was wrecked by a (country omitted) student after separation and this meant that he could not see X as he could not afford to fix the car and was under a lot of stress. He says that he was smoking marijuana but no longer takes illegal drugs. He also said that he was taking anti-psychotic medication and annexed a letter from his treating doctor, Dr N. That letter merely says he is a long term patient of the clinic. He has been diagnosed with depression and anxiety and is taking prescribed medication. It does not say anything about anti-psychotic medication. It is not surprising that this revelation concerned the mother. The mother says Dr N lives close to her home, not the father’s. The letter from her was dated 16 April 2013. The father says he sees Dr N because her rooms are near his parents’ home and it is easier for him to get his prescriptions filled in Melbourne.

8. The father complains that the mother did not let him see X after they separated.

X’s diabetes

1. X was diagnosed with type 1 diabetes when she was 10 years old. This is a serious, chronic disease and it has clearly had an enormous impact on everyone in the family.

2. (omitted) Hospital conducts diabetes education for people with diabetes and their families. It is not in dispute that the father never completed the diabetes training satisfactorily. The father blames the social workers at (omitted) Hospital and in particular Ms J. The mother says that she and the father met with Ms J and she expressed her concerns that the father had not completed the education programme successfully and would not be able to care for X properly.

3. The mother says that initially after X’s diagnosis she allowed the father to visit X at her home but the father was unreliable and it became awkward. The mother does not allow the father to drive X because he is often under the influence of marijuana.

4. The mother annexed a letter from (omitted) Hospital dated 29 May 2014 to her affidavit affirmed on 28 May 2014. The letter says that the Centre assesses the paediatric patient and family whenever a patient is diagnosed with type 1 diabetes.  The social worker identified several issues of concern with respect to the father’s ability to care for X. The letter concerns the mother’s evidence that if the father resumed spending regular time with X they would notify child protection authorities. The father rejected supports he was offered. The father did not attend the full education programme. The centre made further attempts to have the father finish the education programme in 2011 and 2012. He finally completed the diabetes education programme but the (omitted) Hospital team was concerned that the father was unable to understand and retain the information and X would still be at risk in his care.

5. The father has not had any contact with the service since 2013. The mother and X attend regularly.

6. The father filed a complaint about Ms J at (omitted) Hospital to the Office of the Health Services Commissioner in 2012. He annexes his complaint to his affidavit but does not say what the result was.

7. The family consultant noted that the father appeared to remain significantly preoccupied with blaming the diabetes educator for his lack of time with X. This was also apparent at the hearing.

The father’s circumstances

1. The father is unemployed. He lives a largely isolated existence. His property at (omitted) is 236 kilometres away from the mother and X’s residence. He lives on a fairly basic property. He says he has upgraded the shack and it is now a cabin. The cabin is on 20 acres of land. It is isolated.  The mother is concerned that there is not easily accessible medical care in the event of an emergency.  The property is only accessible by a 4 wheel drive. A helicopter would need to fly in if X needed emergency medical treatment.

2. The father says at paragraph 8(h) of his affidavit filed in January 2015:

   “I no longer take antipsychotic medication as it is no longer required. I previously complained to the doctor about my neighbour who was spying on me and my feelings towards diabetes educators. As a result of those complaints the doctor prescribed that medication.”

3. This statement by the father is telling. So was his evidence with respect to the (country omitted) student who damaged his car, the neighbours, the family consultant and the diabetes educators. It is clear that he is unable to let go of the disputes he has with others and remains pre-occupied.

The mother’s circumstances

1. The mother deposes to difficult personal circumstances with her father and partner both having cancer. The mother gave up her employment to look after X after her diagnosis. She now works for herself and can work flexible hours. She receives minimal child support.

The father’s history of time with X

1. After the father moved to his (omitted) property in 2010 he saw X on alternate weekends until X was diagnosed with diabetes.

2. The mother says that the Department of Human Services encouraged her to limit the father’s time with X because of concerns the hospital had about the father’s inability to retain information in relation to X’s diabetes such that X would be at risk in his care. The family consultant records this at para.4 of the family report and notes that this is largely consistent with the hospital records produced on subpoena.

3. The father did not see X at all from mid to late 2011 to early 2014. The mother says the father did not make any contact in 2012 and 2013. The father says the mother did not let him see X.

4. The father did not maintain contact with X. I prefer the mother’s evidence to the father’s. I find that the mother is appropriately protective of X.

5. The parties agreed to arrangements at a mediation for the father to see X at his parents’ home every three weeks from 12pm to 3pm every third Sunday and the father would call X every other Sunday evening. The father agreed to complete the diabetes training at (omitted) Hospital.

6. The mother says the father is unreliable and did not always spend time with X in accordance with the orders.

7. Orders made on 10 June 2014 provided for the father to spend time with X for 6 hours every third Sunday on 4 occasions.  They also provide for the father to call X every Sunday. He generally calls every Sunday. The orders also provide for the father to satisfactorily complete the diabetes awareness course at (omitted) Hospital.

The father’s oral evidence

1. The mother’s counsel asked the father about his marijuana smoking noting that at times he says he is not smoking and at others he says he is. The father was defensive in his response saying “I’m not stopping marijuana. Why should I be drug tested? What have I done wrong?”

2. The father complained that he has not completed the training because the diabetes educator interrupted it. He admitted that he does not know the difference between hyperglycaemia and hypoglycaemia. He complains that he was not shown.

3. He complained about the (country omitted) student ruining his car and the government not caring about it. The father says that the mother is a good mother except for her vengeance on him.

4. The father does not believe that X does not want to spend time with him at his (omitted) home. He thinks she has been influenced by her mother.

5. The father says his parents think it is ridiculous that they have to supervise and are not happy about it.

6. The father was blaming of the family consultant as well.

7. The father did not deny making the threat to Ms J to the family consultant but quibbled with the detail saying that he would get Special Forces to kill her not ordinary police. He then said that the mother and Ms J got together and attacked him. When asked about threatening to kill his neighbours he said he stopped it and he knows they are under psychiatric care. He also said that he is not terminally ill so there is nothing for Ms J to worry about.

8. In reference to the family consultant, Ms D the father queried how he could be expected to see someone who hurt him and the child. He is blaming of her and of the mother’s lawyer for not accepting the initial paperwork sent by his parents for supervision. That paperwork was annexed to his affidavit. It did not comply with the orders. The mother’s lawyers quite properly rejected it.

9. The father says he was not aggressive towards Ms D but spoke loudly to her. When the ICL suggested to the father that X could have heard him, the father said she didn’t. He then said he wanted everyone to hear and maybe he would go to A Current Affair.

10. The father was quite clear in his evidence that if he is required to be supervised when seeing X, he will stop seeing her and will tell her why he is not going to have a relationship with her.

11. The father then indicated that he would not be coming to Melbourne if the restrictions on his time were going to remain in place and his relationship with X would be over. The father said it would be crazy if the Court decided to order no time and he may commit suicide. He also said they are all women in these jobs. The father then referred to Ms J and the (country omitted) student damaging his car.

12. Counsel for the ICL pointed out that there have been repeated recommendations that the father get treatment for his mental health issues. The father said he tried to get a referral the week before. He then asked what he was supposed to see a psychologist for. He said he would seek mental health support if that is what it would take for him to be able to see X, but again asked what the purpose was. This demonstrates the father’s lack of insight and the unlikelihood of the father seeking treatment and sticking to it consistently. Given the father’s attitude, even if he sought treatment, it is unlikely that he would genuinely engage in it. This is because as far as he is concerned, there is nothing wrong with him. It is other people mistreating him.

13. The father said he was already depressed and now he is being attacked by people. He says he does not need to contact the school about X because he knows she is good at school.

The mother’s evidence

1. The mother says X enjoys spending time with her father. She wants to retain sole parental responsibility for X. She says she and the father have no effective way of communicating.

2. The mother says she is concerned about the father’s lack of medical knowledge. She says the father has displayed no interest in X’s schooling apart from saying she is clever.

3. The mother denies preventing the father from spending time with X. She says the paternal grandparents said 6 hour visits were too much as X would get bored, so the visits were shortened to 3 hours. The mother says apart from his parents, the father’s sister could supervise but there really is not anyone else. The father’s parents are away from May until September 2015.

4. The mother says if the father withdraws from X’s life, she will be upset but has experienced the father being absent before.

5. The mother says X knows what food she should eat and what she cannot and knows how to inject herself but fears what would happen if she became unconscious whilst in her father’s care. There are two conditions which can cause unconsciousness and they need different treatment. It is important to have ready access to medical practitioners.

6. X is monitored by (omitted) Hospital and sees them every 3 months. She needs to inject herself 4 times a day, at meals and at bedtime. She also needs to test her blood between four to eight times a day.

7. The mother says at age 14, X knows that injecting yourself and testing your blood is not normal.

8. In response to being asked how long the supervision is needed, the mother said that when X goes to a friend’s house, that her friend’s parents know that X is diabetic and have the mother’s number. The mother says she has a protocol and they follow it. She is concerned that the father will not follow it. She is also concerned about the father’s mental health. She thinks supervision will need to continue until X is 18 years old.

The history of these proceedings

1. The father commenced proceedings. The father has not complied with several orders of the Court made during the course of the proceedings.

2. The father complains that his lawyer agreed to the father undergoing drug testing when the father had no intention of complying with that order. The father says he was going to keep taking marijuana so there was no point in being tested. This ignores the fact that testing can give an indication of the levels of marijuana taken regularly.

3. It is well known that chronic use of marijuana impairs a person’s functioning including parenting capacity.

4. The orders made on 12 August 2014 noted that the father’s time with X was subject to his parents’ notifying the mother’s solicitors in writing that they accepted the obligation to supervise the father’s time with X. There is a standard undertaking for these types of orders. The first note the grandparents compiled was not satisfactory to the mother. This is not surprising. The letter states that she does not understand why supervision is necessary. It does not refer to the details in the notation. I am satisfied that the delay in the father resuming time was not because of the mother being unreasonable but because of the father’s parents not providing a proper undertaking.

5. As it turns out it is apparent from the father’s own evidence that his parents have not been supervising the father’s time with X. Supervised time means the supervisor must be present and must be within earshot at all times in order to stop the time if the father says or does anything inappropriate.

Ms J

1. Ms J was subpoenaed to give evidence. She has been a social worker for the past four years with the Paediatric Diabetes Service at the (omitted) Hospital. She has had dealings with both parents and X on many occasions. She says that the hospital provides a three day diabetes education course with nurses and social workers. The father attended the first day of the course. The hospital arranged for the father to attend all sessions and he did so but the hospital staff was concerned about his lack of knowledge and presentation. Ms J conducted the initial assessment. The hospital’s concerns were based on the father’s drug and alcohol use and mental health. On several occasions when the father attended the hospital he was under the influence of cannabis. He would acknowledge this and they would stop the sessions.

2. She said that a child diagnosed with type I diabetes needs a lot of support. X has to check her blood by pricking her fingers 8 to 10 times a day. Initially she had to inject herself with insulin twice a day. Now that she is a teenager she has to inject herself four times a day. She needs to ensure that she eats the correct amount of food. There are two conditions which are dangerous for diabetics. The first is hypoglycaemia which is when the diabetic’s blood sugar is too low. If a person’s blood sugar falls below four then that person needs to take sweets such as jellybeans and then needs to follow up 20 minutes later with carbohydrates and then retest for blood sugar levels.

1. The other condition is hyperglycaemia which is when the blood sugar is too high. If diabetics suffer from either hypoglycaemia or hyperglycaemia, it is pertinent that someone is able to accurately identify the condition and initiate intervention. If left untreated, either condition can lead to the person becoming unconscious or even death.  Delayed treatment also has serious implications for the person’s health including long-term organ damage and can have a lasting impact on a person’s concentration.

2. Dealing with teenagers who have type I diabetes can be challenging because teenagers tend to be non-compliant with their treatment regime because they are self-conscious about being different to their peers. It can be frustrating for them to have to watch what they are eating and when and to carry out blood sugar tests multiple times per day as well as to administer the injections.

3. Ms J said that they did not have the impression that the father understood the problems X faces. He has not had dealings with the hospital for about 18 months. She said that whilst they foster independence in a 14-year-old, they would still expect parents to be involved in treating and monitoring the child. Something like a common cold can cause big reaction in a diabetic and so they need careful monitoring.

4. Ms J confirmed that the (omitted) Medical Centre were still available to complete the father’s diabetes education. She confirmed that most medical centres require completion of education at the same centre where the person is being treated and as a consequence will not allow someone to do that education at a different centre.

5. Blood glucose monitoring is important because the signs of someone having either a hypoglycaemic or hyperglycaemic episode can be similar. A person can appear irritable when experiencing either episode and it can be difficult to tell whether that person is simply irritable or if their health is compromised. Consequently it can be difficult for an untrained person to identify the signs of someone having such an episode.

6. The father cross-examined Ms J. She told him that at times he was agitated towards educators if they expressed their concerns to him. The father suggested to her that she said to him that she would not do it herself but some people might send police after him. She denied this and said that the father accused her of having police chasing him in the forest. This was where the father’s paranoid tendencies were evident during his questioning.

7. She said the father was offered drug and alcohol counselling because he admitted to them that he was taking cannabis and because he could place X in danger if he drove with her in the car whilst under the influence. She confirmed that she told the father that at the time. He asked if anyone else complained that he was unable to learn. She said that they expressed concerns that he was under the influence and that on a number of occasions he was unable to retain information. She confirmed that several of his appointments had to be rescheduled because he was under the influence. She said Ms J offered him services which he refused.

8. I do not accept the father’s claims that Ms J or any other staff member at (omitted) Hospital acting in any manner that was inappropriate towards the father. To the contrary, the staff tried to help him on numerous occasions. The father can be difficult to deal with. At times he was difficult in court.

Dr W

1. Dr W prepared a psychiatric assessment of the father. His report is detailed. He notes that the father did not see any justification for him being psychiatrically assessed.

2. The father told Dr W he had been depressed most of his life. Taking marijuana was the first time he felt relaxed. He described his social anxiety and said he needs Valium to cope with going to the shops. He says this has made getting jobs difficult.

3. He described his neighbours who he insisted spy on him. He told Dr W that he can hear them from a kilometre away because sound carries in the bush. He said sometimes they watched him 24 hours a day.

4. He told Dr W that he is on the disability pension and had not worked since the drama when the (country omitted) student totalled his car. He says he is still angry about that.

5. He says he does not smoke marijuana all of the time because of the money. He says he does not buy it locally as it is not good for him to have it all the time.

6. He admitted to being physically violent towards the mother and pushing her off the veranda when she was pregnant. He laughed when describing it.

7. Dr W noted that whilst the father was cooperative he was tense and not very engaged. On one occasion his thinking was tangential. His affect was flat. At times his humour was inappropriate. He noted that the father appeared to suffer from auditory hallucinations in the past and continues to have paranoid delusional thinking about his neighbours. The father demonstrated significant lack of insight.

8. Dr W concluded that given the father’s history and presentation “there is a significant likelihood that he suffers from schizotypal personality traits or disorder. It is also strongly suggestive of the father suffering from ‘a low-grade Chronic Paranoid Schizophrenia’”.

9. He also observed that:

   “At interview, Mr Swanson appears to have not only limited insight into his psychiatric illness, but also a significant degree of paranoia and anger towards those whom he feels have caused him problems, or even, he perceives, to have conspired against him.”

10. The father’s illness is unlikely to improve as he is unlikely to engage in regular psychiatric treatment and is unlikely to take the appropriate medication. His condition is compounded by his marijuana use. He is likely to worsen and his behaviour can be unpredictable. The father was clearly upset by Dr W’s report and challenged him in cross-examination.

11. In his oral evidence, Dr W said that he carefully records what people tell him and if they say something unusual he will double-check with them to ensure that the history he has taken is accurate. He said he was absolutely certain that the history he recorded as given by the father was accurate. He also confirmed that when he uses speech marks in his report it is a direct quote.

12. On page 5 of his report he refers to the father’s allegations that the neighbours spy on him. He said the father’s recounting of this was bizarre and to his mind would have been physically impossible.

13. Dr W confirmed his prognosis that it is unlikely that the father’s mental health will improve. He remains at risk of impulsive and unpredictable behaviour. The father is a man who has a combination of paranoia and anger and not just in one context but also has a lack of insight. He is an isolated man and is difficult to deal with. Dr W said that upon re-reading his report he thought he had been too circumspect with respect to his diagnosis of the father. He said people with schizophrenia can engage and still relate to others as long as the topic that is the subject of his or her delusions are avoided but the father also has significant personality disorder traits and unfortunately he appears to have deficits in many areas of his thinking and his emotional world. These are all drivers of his behaviour. The father thought so many people were against him and he is trying to control his environment. It must be a very frightening situation for him.

14. Dr W also said that at times the father’s emotional response when recounting events was inappropriate and gave the example of the father laughing when he described pushing the mother off the veranda when she was pregnant. There were times during the hearing that the father laughed at inappropriate moments.

15. Dr W thinks that the father has psychosis and that the only realistic diagnosis is delusional disorder. Whether or not it is schizophrenia, it is certainly a psychotic condition. He points out that while the antidepressants the father is taking will help with his anxiety and depression; he is not taking any antipsychotic medications that will assist with his delusional thinking and false and fixed beliefs.

16. Psychosis can fluctuate and a person can have good days and bad days. It could be a fraught situation if you add into the mix the child with type I diabetes

17. The father commenced his cross-examination of Dr W by referring to his description of his neighbours spying. The father said their camping spots were shaped like an ear, not a satellite as Dr W had said. Dr W said it was not just the fact that he thought neighbours were spying on him but the way he described it in such detail and how he knew it was happening. Dr W said that if he was treating the father he would reality test with him as to why people would take the time to camp outside his door.

18. Dr W said that the father’s brain chemistry is such that he is more likely to behave in ways he does not want when he is under stress and is more likely to use marijuana in these instances. He told the father that he thinks the father suffers from a psychiatric disorder and needs treatment he also said that it is not good for his daughter’s mental health for him to talk about his delusional ideas with her. The father asked Dr W what delusions he was referring to. Dr W referred to the delusions concerning his neighbours and the father said ‘but that was real’. This is a problem about paranoia and I have no doubt that the father absolutely believes that his neighbours spy on him but this together with his preoccupation with the (country omitted) student and Ms J are all indicators of the father having delusional thinking.

19. Dr W said that people underestimate the influence that parents have on their children and that modelling can take place. It can become very confusing for a child to know of the parent’s delusional thinking and it can then become difficult for the child to distinguish what is real and what is not.

The family consultant

1. The family consultant Ms D prepared a section 11F conference memorandum and a family report. She gave oral evidence at the request of the father.

2. The section 11F report raised serious concerns about father. The family consultant identified the father’s mental health and functioning as a major concern. She observed that he “presented with disorganised and rambling thought processes and there was an indication of ongoing mental health difficulties.” She identified “potential paranoid ideation” and homicidal thoughts toward his neighbours and Ms J. During the interview he said if he was terminally ill he would go after Ms J and chop her ears off.  He also threatened to kill his neighbours.

3. The father has admitted to making threats but says he would never act on them. That is no answer. The nature of his threats are concerning. It was also apparent during the Court proceedings that the father had trouble containing his negative emotions and his temper. I acknowledge that Court proceedings are very stressful for litigants, particularly for those who have to represent themselves but this does not completely explain the father’s behaviour.

4. The family consultant’s concerns are justified. She contacted the Department of Human Services (DHS) liaison to express her concerns. The DHS Liaison officer said the Court would benefit from the information DHS has.

5. At the section 11F interview X said she wanted to continue the current arrangements visiting her father at her paternal grandparent’s home. She did not want to go to (omitted) and did not want to spend overnights with her father but thought a couple of overnights at her grandparents’ home during the school holidays would be ok. X expressed concern about the state of the father’s property, not feeling safe there and not being close to medical attention if she needed it.

6. Due to a clerical error in the letter confirming the appointments for the family report the father thought he was seeing another family consultant. The father became upset and aggressive when he saw Ms D and realised she was carrying out the family report. The father became extremely aggressive and agitated. Security was called. The mother was present. She says when the father saw her he approached her and accused her of lying and damaging X. The mother says she was afraid the father would hurt her so she left the court building. Ms D called her and told her not to attend court until she advised her to. She arranged for a security escort for the mother and X.

7. After this incident the mother asked her lawyers to write to the father’s lawyers to request all future handovers be at (omitted) police station rather than the paternal grandparents’ home.

8. The father did not participate in the family report. The mother and X did. The mother says that during the relationship the father showed some paranoid behaviour which she thought was related to his marijuana use.

9. The family consultant notes that the mother is concerned about the father’s persecutory thoughts and his thoughts with respect to harming others including the diabetes educator. She is worried about the risk to X and herself and does not want the father to know where she and X have moved to. Her concerns are reasonable.

10. The mother told the family consultant that X would be negatively impacted if she is not able to see her father in the future. The mother believes X sees a different side to her father.

11. The family report writer described the father as being “extremely verbally aggressive and confrontational” when he discovered that she would conduct the family report interviews. He blamed the report writer for the lack of time he has spent with X and referred to her section 11F report. She found the father’s behaviour to be disconcerting and intimidating. Management and security services had to become involved. In our old evidence Ms D said that the father was verbally aggressive and irrational and could not be contained or calmed down. She also found his body language threatening.

12. The family consultant refers to the ongoing risk of the father’s mental health and his parenting capacity with his ongoing use of marijuana. She said that if the father underwent treatment and his time with X could be spent and maintained safely then X would benefit from that as she enjoys spending time with father and it will be a loss to her if she is not able to see him.

13. The family consultant spoke to the paternal grandmother by telephone. It is concerning to note that she does not know why the father needed supervision and showed a lack of understanding of the current orders. She said she did not have a copy of the orders and did not understand her obligations. The paternal grandmother said that she would prefer handovers to be at her home. She said she had not agreed to facilitate handovers.

14. The paternal grandparents are planning to be overseas from May to September 2015 and so are not available to supervise time during this period.

15. The family consultant observed that X values her relationship with her father but has begun to recognise that there are aspects of her father’s behaviour which is difficult and causes her concern and anxiety. She is aware of his negative views towards others. The family consultant noted in the report that if the father is not able to better moderate his behaviour it is likely to adversely affect their relationship.

16. X understands her diabetes but spoke about ongoing difficulties in managing it. She is likely to find it challenging during her teenage years as she expands her social activities. Ongoing family support and education will be very important for her. She records that X did not want to spend time at her father’s (omitted) home due to the modest accommodation and lack of privacy. Given X’s age and stage of development she is likely to move away from spending time with her family in favour of prioritising her peer relationships which is a normal development.

17. The family consultant then referred to the subpoenaed record and notes that evidence of the father’s longstanding persecutory thoughts throughout the documents. The DHS records also indicate concerns it has about the father and risk to X if she spends unsupervised time with her father based on the father’s presentation and numerous conversations with child protection workers. DHS thought the mother’s concerns about the isolated nature of the father’s property is justified.

18. Ms D said that X is emotionally and intellectually mature enough to know that the time with her father was being monitored. She disclosed that she was aware of threats that the father made to others and that this unnerved her along with some other aspects of his behaviour. She said that she continually told her father that it is not the mother’s fault with respect to the limited time she spends with him but that her father will not listen so she gave up talking to him about it. She says her mother doesn’t really talk about the father. She said that this fear was that because of the remoteness of his property if there was a fire or if she was unconscious that her father would not know what to do. She said her father had told her that he was not allowed to do the training which made her question whether her father really understood her condition and X would do her best not to go to (omitted). X was ambivalent about the time spent with the father because of his behaviour.

19. Ms D said that as the father’s parents will not be available to supervise for some months, the only alternative would be a Contact Centre but that may well be our difficult because of X’s age and the contact centre might not accept the family for supervision.

20. X revealed to Ms G that her father had told her about the neighbours spying on him and about (country omitted) growth from the gold rush era. She found his behaviour really weird and unnerving. She said that X said she found it best to simply go along with her father. Ms D said she was concerned about revealing to the Court what X had told her because it might have repercussions for her with her father. Ms D said if the father is not treated then he should not spend time with X given the risks.

21. The family consultant recommends that any time between X and her father be strictly supervised. The supervisor would need to be fully aware of the risks. In tandem with this the father would need to get psychiatric treatment where he is monitored. The father’s continued use of marijuana is also concerning as that is likely to negatively impact on his mental health.

22. She recommends that the mother retain sole parental responsibility which she has had since interim orders were made in August 2014.In her oral evidence the family consultant disclosed some things X said to her which she did not disclose in her report because she was concerned as to how the father would react and how this in turn would negatively impact on X. What she disclosed during cross-examination is significant.

23. At the end of the case the ICL submitted that this is tragic and says that X loves her father and values her relationship with him but that she needs to be protected from the father’s mental health difficulties. The father’s tangential thinking and inappropriate effect was evident at various times at the hearing and that cannot simply be explained by the stress of the proceedings although I certainly accept that would have added to the father’s agitation.

24. The Independent Children’s Lawyer indicated that she would meet with X and explain the orders. She was hopeful that the father would seek treatment and be able to provide reports that could open the door to him spending time with X again.

25. The mother submitted that the father should not have ongoing face-to-face time with X. His parents are not able to supervise the next several months. The father is already speaking to X about his delusions. The mother supported telephone contact continuing, as did the Independent Children’s Lawyer. I have some concerns about the father having telephone contact with X because that has been taking place and there is nothing to prevent him from discussing his delusional thoughts with X which he clearly has and which causes X to be confused and distressed. I do not propose to include any order for telephone contact though I am mindful that X will be able to contact him by telephone directly if she wishes.

1. The father submitted that he never said he would not learn about diabetes and that he would not undergo treatment. He said he is not imagining things and he wished he was. The father mentioned ghosts. That when he tried to be educated, he was attacked. The father’s submissions underscore his difficulties.

Legal Principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Act gives the court the power to make a parenting order which is defined by s.64.

3. In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations and s.60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII, as stated in s.60B, that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child’s best interest being treated as paramount.  There are no issues of family violence in this case.

9. S.61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.

12. In MRR and GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the high court said:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

The application of the legal principles to the facts of this case

1. In my view there is no doubt that X’s best interests would not be served by the parents sharing parental responsibility. The parents do not communicate with each other. The mother has a good understanding of X’s medical condition whereas the father does not. The father has not been involved in X’s schooling and given the father’s serious mental health concerns it simply would not be practicable for the parents to share equal parental responsibility. An order in the mother’s favour for sole parental responsibility reflects the reality of what has in fact been in place for some time.

2. Turning to the two primary considerations, whilst it is clear that X currently does have a meaningful relationship with her father and values that relationship, there is an unacceptable risk of X being subjected to physical and psychological harm in her father’s care. This would not be intentional on her father’s part but because of his untreated mental health condition. X is more vulnerable than other teenagers because of her diabetes but it is not just diabetes which raises the concern, it is also the confusion and distress that she would be exposed to and has already been exposed to by the father talking to her about his delusions which I accept that to the father are very real.

3. Many cases have discussed the concept of unacceptable risk. M and M (1988) 166 CLR 69 is the leading case. It is necessary for me to consider orders which will best protect X and promote her best interests. The comments of Fogarty J in N & S & The Separate Representative (1996) FLC 92-655 describe the obligation of the judge well. Fogarty J said:

   “Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.”

4. Counsel for the ICL referred to the decisions of Licha v Wunscher [2008] FamCA 147 and Innocente and Innocente [2007] FamCA 586 in her case outline. The mother in Licha v Wunscher, like the father in this case did not believe she needed any psychological or psychiatric assistance. Brown J found in that case that the mother’s world view was unlikely to change in vital respects. Brown J also found in that case that professional supervision was necessary to protect the child from the risk of emotional abuse from the mother’s imposition of her psychological world on the child.

5. The orders Brown J made in that case provides a useful structure allowing for the mother to send letters etc and also for time to be spent in accordance with conditions imposed on by the father. I have included similar orders here so that a line for communication between the father and X is left open while also keeping X safe.

6. Innocente and Innocente was another decision of Brown J. In that case Brown J concluded that it was not in the interests of the child to spend time with the father because to do so would expose the child to an unacceptable risk of physical and psychological harm. In that case, as is the case here, the father made it clear that he would not spend supervised time with the child and would not seek psychiatric assistance. In this present case the father said in his closing submission that he has not refused to seek treatment but it is pretty clear from his comments at various points during the hearing that he did not see why he would need treatment. I have no confidence that he would engage in ongoing treatment in any meaningful way. If the father does seek treatment and files evidence of that, he could revisit the issue of spending time with X.

7. X is 14 years old; therefore her views must be given real weight. She clearly loves her father and wants to spend time with him. However, she is also aware that he is not safe. He has expressed views to her which she has found disturbing. She would like the current arrangements to stay in place. In this case my primary concern must be for X’s safety and wellbeing which includes her emotional as well as physical wellbeing. I am not satisfied that the father is able to protect X from his views as he lacks the insight. I consider in this case, the protective concerns are such that they take priority over X’s views.

8. X has a close and loving relationship with her mother. I have no concerns about the mother’s parenting capacity. I do not accept the father’s allegations about the mother and find that she has acted appropriately and protectively of X. I am satisfied that she would encourage a relationship between X and her father because she acknowledges the benefits if it could be done safely.

9. X has a good relationship with her paternal grandparents. X is of an age where she will be able to contact her grandparents when she wants to spend time with them.

10. These orders will represent a change in circumstances for X but it is not as significant as it might have been because she was already only seeing her father for limited periods every few weeks. She has experienced months of having no time with her father before. I have no doubt that she will be upset about not seeing her father and will experience it as a loss but her best interests remain paramount. I am not satisfied that the father’s parents are appropriate supervisors as it seems clear from the father’s evidence that they have not in fact been supervising and do not understand what the needs or purpose of the supervision is. No party seriously suggested a contact centre as being a viable alternative. I doubt that the father would attend the contact centre given statements during the course of the hearing that if supervision was ordered he would cease his relationship with X. I am also of the view that the supervised contact setting is not a viable option for a teenager unless it occurs at the teenager’s request.

11. The father has not always exercised the responsibilities of parenthood. He has been unable to participate effectively in decision-making for X; he has also failed to take up opportunities to be involved. His lack of engagement with X’s school is an example. The father does not financially support X and is not in a position to do so.

12. I have no concerns about the mother’s capacity to provide for X’s physical, intellectual and emotional needs. I have already detailed my findings with respect to the father’s capacity. I am satisfied that these orders are the least likely to lead to further proceedings. If the orders provided for supervised time of some sort it may well be necessary to the matter to come back. The father will not be prevented from seeking further parenting orders provided that he seeks treatment for his mental health and is able to provide a report to the court to that effect such that X would not be at risk of spending time with him unsupervised. I think it is unlikely that the father would do this because he sees no need for treatment and is unlikely to engage in treatment in a meaningful way which would need to be long-term.

13. I will make orders that will enable the father to send X letters and gifts with the mother being able to ensure that they are appropriate before passing them on to X.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  5 June 2015