Waldron and Warbeck

[2020] FCCA 1033

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDRON & WARBECK [2020] FCCA 1033

Catchwords:
FAMILY LAW – Interim hearing – children aged 7 & 5 – father seeks to spend time with children – mother alleges father has significant alcohol abuse issues – mother asserts father’s untreated alcoholism represents risk to children assessment of risk – should father be directed to undergo psychiatric examination – role of independent children’s lawyer – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60CC; 68LA

Applicant: MR WALDRON

Respondent: MS WARBECK

File Number: ADC 2002 of 2018

Judgment of: Judge Brown

Hearing date: 31 March 2020

Date of Last Submission: 31 March 2020

Delivered at: Adelaide

Delivered on: 31 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Lewis

Solicitors for the Applicant: RJ Cole & Partners

Counsel for the Respondent: Ms Fuda

Solicitors for the Respondent: Women’s Legal Service

Counsel for the Independent Children’s Lawyer: Mr Hemsley

Solicitors for the Independent Children’s Lawyer: Legal Services Commission Noarlunga

ORDERS

1. That the father undergo a forensic psychiatric assessment by a psychiatrist to be agreed between the parties and, failing agreement, to be as directed by the independent children’s lawyer, at the father’s expense. 

2. Further consideration of the matter is adjourned to 16 June 2020 at 10.00am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2002 of 2018

MR WALDRON

Applicant

And

MS WARBECK

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were provided orally, immediately following the relevant interim hearing.  Given the issues in dispute between the parties and the manner in which I think will best suit their resolution, I have arranged for them to be transcribed so that the father, in particular, may consider them.

2. This morning I have to deal with a difficult matter.  The parties to the proceedings are Mr Waldron and Ms Warbeck.  They are the parents of two children: X, who was born in 2012, and Y, who was born in 2014.  The parents are not the only parties to these proceedings. 

3. Earlier, an order was made for the two children to be independently represented in the case.  The children’s representative is Ms Tydeman, who is an experienced family lawyer based in Adelaide.  She is to be regarded as a party of equal importance to the parents themselves, and it is her statutory obligation to advocate the position which she believes will best serve the interests of the children concerned.[1]

   [1]  See Family Law Act 1975 (Cth) at section 68LA

4. The father commenced these proceedings a significant period of time ago now.  He commenced the proceedings on 23 May 2018.  It was his evidence that he and the mother had been involved in a lengthy relationship, which began in 2000/2001 and which came to an end towards the end of 2016 and early 2017 when, due to an intervention order, he was excluded from the property in which he and the mother and children had been living. 

5. Subsequently, he was charged with one count of assault, which resulted in him being arrested, refused bail and remanded for a period of time and then, ultimately, placed on a good behaviour bond, which has now expired.  This chain of events interrupted what he considered to be a hitherto significant relationship with the two children concerned, whom he loved.

6. At that stage in May of 2018, it was the father’s position that he had not interacted with the two children since January of 2017, and he had no idea as to where the children were living.  Accordingly, he sought orders directed to ascertaining the location of Ms Warbeck, so she could be formally served with the relevant court documents.

7. Ultimately, there was some hiatus whilst Ms Warbeck was engaged in the proceedings, and in September of 2018, it was ordered that there be a process of supervised time at the Children’s Contact Centre at Suburb A, and after that process of visitation had completed, that there be a report prepared.  Unusually, it was envisaged that there be a process of 12 visits, which is double the usual number. The father was also directed to complete a DASA course. 

8. Ultimately, a report was produced by the Suburb A Children’s Contact Centre that indicated that, certainly, from Mr Waldron’s perspective, he had a deep love and interest in the two children concerned and that they had some form of recollection and memory of him and were able to engage with him.[2]  However, the supervisors noted some aspects of Mr Waldron’s presentation, which caused them concern, most notably that it seemed that there was evidence that he had consumed alcohol fairly recently before the visits concerned.[3]

   [2]  See Annexure W-1 of the mother’s affidavit filed 3 October 2019

   [3]  See Annexure W-1 of the mother’s affidavit filed 3 October 2019 at page 1

9. At this juncture, I should point out that it was the mother’s position, when she responded to the father’s application that he had understated the nature of the relationship between the parties, which she characterised as one manifest by significant episodes of very serious family violence, which had involved DCP and significant police involvement.  She produced some evidence from the Department to support her assertion of departmental involvement. 

10. It was also her position that Mr Waldron had understated issues to do with his alcohol and substance abuse generally.  She characterised Mr Waldron as being a dishonest and manipulative person, and she believed that given his lack of insight, he posed a significant degree of risk to these children of tender years.

11. Following the release of the provisional report – provisional in the sense that it was envisaged that there be more supervised time – Ms Warbeck brought an application in a case on 3 October 2019. 

12. At that stage, she sought orders that the father no longer have any involvement with the children but rather that he undergo a full liver function test and attend upon a psychiatrist for the preparation of a report. 

13. The purpose of these interventions being to seek out organic evidence regarding the father’s level of alcohol consumption and an independent and objective assessment of his level of insight into the implications of his use of alcohol for him personally and more significantly for the children.

14. She also wanted further evidence regarding the father’s involvement with psychiatric services following the orders made for supervised time, so she could assess his attitude toward personal rehabilitation, given what she asserted had been the extent of his previous substance abuse issues. 

15. The father did not respond to that application, and on 4 February 2020, he was directed to file any response on or before 6 March 2020, and, on that basis, the matter was adjourned until today. 

16. In the meantime, Ms Warbeck has filed a further affidavit in which she deposes that the father has been charged with some offences which are listed before the Suburb B Magistrates Court, and those offences include fail to leave licensed premises – intoxicated person and basic – commit assault.[4] 

    [4]  See mother’s affidavit filed 12 March 2020 at [8]

17. In these circumstances, she is concerned that the father is not doing anything of a concrete nature to address what she asserts are longstanding issues to do with his mental health and substance abuse, which pose a great risk to these two young children. 

18. The father has responded in the form of an affidavit on 12 March 2020 after changing his solicitor.  He has provided a liver function test without any covering interpretation from a medical practitioner.  What he says about that report is that although the results may suggest alcoholic hepatitis, they may not take into account other health conditions which he has had, as I understand it, since his infancy. 

19. He deposes attending upon a psychologist, whom he didn’t find helpful.  He says he is taking antidepressant medication, and he is prepared to attend a program called New Roads.  From both the mother’s perspective and the perspective of the independent children’s lawyer, this does not demonstrate a sufficient level of insight into this complicated and nuanced case. 

Discussion

1. Fundamentally, at this interim stage, I am not in a position to make findings of fact about the very many issues in dispute between the parties; rather, what I must do is assess risk; (a) the risk for the children of potentially losing a very significant relationship they have an entitlement to have with a loving parent and (b) the risks of being exposed to psychological or psychiatric harm or even physical harm as a consequence of being exposed to neglect, abuse or family violence.[5]

[5] See section 60CC of the Family Law Act 1975 (Cth)

1. It is the position of the independent children’s lawyer that Mr Waldron, on the material before the Court, continues to represent a risk to the children and, significantly, there are risks of trying to facilitate a relationship which may ultimately have to be truncated or ceased because Mr Waldron remains in the grip of alcoholism and/or some form of psychiatric illness, the two feeding off and reinforcing one another.  At this stage, I agree that Mr Waldron has not done anything of sufficient moment to address these very significant risk factors. 

2. Whether he is able to do so, really, is up to him, and I think it is simplistic of someone in my position to say to him attend psychological or psychiatric counselling or get alcohol treatment.  Mr Waldron, firstly, by seeing an appropriate person, makes an acknowledgement that he has the issues.  For me to make an order that he do certain things will lead to the perception that he just has to jump through a few hoops just to assuage some concerns that he believes are nebulous or of no moment. 

3. From my perspective, the onus has to be placed on him to do something; whether he needs some advice as to what he has to do or how he goes about getting the help on a prima facie basis it seems that he has a pressing need to get, is a matter for him.  Whether at this time of pandemic crisis, these services are available, I do not know. 

4. The only intervention that I think is reasonably open to me at this stage is one that the parties have agreed is appropriate, and that is a forensic psychiatric examination. 

5. I am well aware of the limitations of such forensic examinations, their efficacy relying on the truthfulness of what people say to the examining psychiatrist concerned, and for obvious reasons, individuals sometimes are not motivated to be entirely truthful or candid. 

6. But at this juncture, that is the only instrument I think that is available to me to assess risk.  I would hope that the psychiatrist concerned gets all the records that relate to Mr Waldron’s recent admissions to hospital and also the records that indicate the involvement of the Department in the past, because otherwise the report will be meaningless. 

7. At this juncture, I think it would not be helpful to the children for them to engage in any process of Skype or telephone communication.  At this stage, the way forward is just so unclear and problematic.  I take the same view in respect of sending an Easter gift for the children. 

8. There is a real risk that it would be tokenistic and I would be just doing something to make Mr Waldron feel better, which will be, really, meaningless for the children concerned.  So I think, for all those reasons, I have to take an extremely cautious approach in this very difficult matter. 

9. I emphasise again that the onus is on Mr Waldron to do something and to do something significant, otherwise the case can go no further.  He has to acknowledge his issues candidly and openly and then, perhaps more problematically and more challengingly, he needs to engage in the therapies and treatments prescribed for him. 

10. The orders will be as set out at the commencement of these reasons for judgment. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Date: 1 May 2020