BAGLEY and JANZ
[2020] FCWA 64
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BAGLEY and JANZ [2020] FCWA 64
CORAM: TYSON J
HEARD: 31 MARCH 2020
DELIVERED : 29 APRIL 2020
FILE NO/S: PTW 5565 of 2015
BETWEEN: MR BAGLEY
Applicant
AND
MS JANZ
Respondent
Catchwords:
CHILDREN – Application to spend time with child – Rice and Asplund – Change of circumstances not established – Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Mrs F |
| Independent Children's Lawyer | : | Ms A |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | HHG Legal Group |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Finton & Kimble [2017] FCWA 106
Finton & Kimble [2020] FCWA 7
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bagley & Janz has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1 [Ms Janz], the mother, wants the father, [Mr Bagley]’s most recent application seeking parenting orders in relation to their only child, [E], to be dismissed without the need to proceed to a final hearing. It is that discrete application which is to be determined.
2 After separation, the parents were involved in lengthy and protracted litigation. An Independent Children’s Lawyer (“ICL”) was appointed for E. [Dr J] was appointed as the Single Expert Witness.
3 The trial was heard before Justice Duncanson on 2, 3, 4, 5 October 2017, 19, 20, 21, 22 March 2018 and 25 September 2018. At trial, the father sought orders for the parents to have equal shared parental responsibility for E and the child’s time with the father to gradually increase to a week about arrangement. The mother sought that she have sole parental responsibility for E, the child live with her and not spend any time with the father. The ICL supported the mother’s application for no contact.
4 On 8 November 2018 the trial judge published her Reasons for decision and made final orders. Those orders provided for the mother to have sole parental responsibility for E and the father not spend time, nor communicate with the child unless agreed in writing by the mother. The father was restrained by an injunction from approaching within 100 meters of the child, contacting the child, attending the child’s school or attending the mother or the maternal grandparents’ home. The father was given permission to send a gift and a letter or card to the child on four occasions each year and for her birthday, at Christmas and at Easter.
5 On 25 February 2019 the father commenced the current proceedings. On a final basis, he seeks for the parents to have equal shared parental responsibility and to spend unsupervised time with E. On an interim basis, he seeks telephone calls with E twice each week, supervised by the mother and liberty to contact E’s school.
6 The mother filed her responding documents on 4 November 2019, seeking the father’s application be dismissed. The ICL supports the dismissal of the father’s application.
WHAT ARE THE BACKGROUND FACTS?
7 The parties commenced cohabitation in January 2005. E was born [in] 2010. The parties’ separated on a number of occasions, before their final separation in March 2015.
8 In the trial judge’s Reasons, she set out the relevant background at paragraphs [17] – [20] and [94] – [182], which I adopt.
9 In December 2018 the father attempted to file an Initiating Application. That Application was not accepted because the father failed to provide any independent evidence that he had addressed the concerns raised in the Reasons. As indicated, his subsequent Initiating Application filed in February 2019 was accepted.
10 In May 2019 the father filed a contravention application, alleging the mother had not yet provided a current photograph of the child.
11 On 2 May 2019 the matter came before the Court. Orders were made for the parties to attend a Case Assessment Conference which took place on 2 July 2019. I will refer to the Conference in more detail later in these Reasons.
12 On 12 July 2019 orders were made for the mother to file her responding documents. The mother filed her Response and an affidavit in support on 4 November 2019. The father filed a further affidavit on 3 October 2019.
13 On 19 November 2019 orders were made listing the matter for hearing on 31 March 2020, and for each party to file submissions.
14 The father filed a further affidavit on 19 November 2019 and 25 February 2020, which appears to be his submissions. He filed “Notes to the Judge” on 27 March 2020, which I have treated as further submissions.
15 The mother filed a further affidavit on 18 March 2020 and her written submissions. On 24 March 2020 the ICL filed her submissions.
16 As I indicated during the hearing, I have read and carefully considered all of the evidence.
2018 Reasons for Decision
17 The salient findings in the Reasons for decision were as follows:[1]
[1] Reasons delivered 8 November 2018.
18 E was eight years old and at the time of trial, lived with her mother and was spending supervised time with her father.
19 The mother was legally represented, while the father represented himself. The trial was conducted in difficult circumstances, as a consequence of the father’s conduct.[2] The trial judge described the father as:
[2] Paragraph 45 of the Reasons delivered 8 November 2018.
(a)Intimidating the mother, including berating her, raising his voice, swearing under his breath and openly in court.[3]
[3] Paragraph 36 of the Reasons delivered 8 November 2018.
(b)Behaving in a confrontational manner towards Dr J and the mother’s counsel, including using foul language.[4]
[4] Paragraph 38 and 252 of the Reasons delivered 8 November 2018.
20 During the trial, the father turned towards the mother, waved his papers and said “You’re gone, mate”. The trial judge interpreted that as a threat. The mother was distressed at the fact the father threatened her in Court. The proceedings were adjourned and arrangements were made for the father to attend the balance of the trial by video link, from the Supreme Court.[5]
[5] Paragraphs 39 – 43 of the Reasons delivered 8 November 2018.
21 The trial judge found the mother was a capable parent who was providing well for all of E’s needs, in difficult circumstances. The mother was a truthful witness who gave reliable evidence.[6] The trial judge considered the mother was worn out by the father’s behaviour towards her and by the proceedings and the mother’s overriding concern was E’s welfare.[7]
[6] Paragraph 47 of the Reasons delivered 8 November 2018.
[7] Paragraph 50 of the Reasons delivered 8 November 2018.
22 Dr J reported the father’s psychological assessment revealed a childhood of trauma, significant violence and poor parenting. She considered the father’s psychometric testing suggested he might meet the criteria for an Antisocial Personality Disorder. Dr J described the father as adopting an egocentric approach, accusing the mother of being a pathological liar. Dr J said the father’s approach to the truth had an element of rigidity. She considered he was inclined to adopt a judgemental approach to others, while lacking insight into his own behaviour. The trial judge agreed with Dr J’s assessment of the father.[8]
[8] Paragraph 68 of the Reasons delivered 8 November 2018.
23 Dr J reported that the father presented as someone who has "a flagrant personality disorder and being currently under significant stress". She considered his conduct was consistent with antisocial features and the father needed to change his thinking.[9]
[9] Paragraph 220 of the Reasons delivered 8 November 2018.
24 [Dr N], the father’s general practitioner, referred the father to a psychologist for treatment associated with his Post-Traumatic Stress Disorder symptoms. Dr N described PTSD as a lifelong sentence which required continuous treatment through groups like Alcoholics Anonymous and [a family violence program].[10]
[10] Paragraph 72 - 74 of the Reasons delivered 8 November 2018.
25 The trial judge found the parties’ relationship was characterised by family violence,[11] which the father had perpetrated against the mother and which E had been exposed to.[12]
[11] Paragraphs 97, 98, 100, 102 – 103, 111, 114, 115 – 119 of the Reasons delivered 8 November 2018.
[12] Paragraph 112 of the Reasons delivered 8 November 2018.
26 After separation, the father sent a number of abusive emails and text messages to the mother.[13] He threatened to disseminate explicit photographs he had taken of the mother. The mother’s parents and her workplace received such photographs, which the father denied sending.[14] The father put explicit photographs of the mother in her letterbox, her neighbour and parents’.[15] The mother described the photographs as having the same impact upon her as a weapon, and said the father used them to control her.[16]
[13] Paragraph 121 of the Reasons delivered 8 November 2018.
[14] Paragraphs 122, 136, 137 of the Reasons delivered 8 November 2018.
[15] Paragraph 149 of the Reasons delivered 8 November 2018.
[16] Paragraph 149 of the Reasons delivered 8 November 2018.
27 The mother obtained a Violence Restraining Order for her protection.[17] The father was convicted of breaching the VRO.[18] During those proceedings, the father made threatening remarks to the mother.[19]
[17] Paragraph 126 and 129 of the Reasons delivered 8 November 2018.
[18] Paragraph 179 - 180 of the Reasons delivered 8 November 2018.
[19] Paragraph 179 – 180, 204 of the Reasons delivered 8 November 2018.
28 The father behaved in a threatening and abusive manner towards a number of third parties, including E’s school[20] and the maternal grandparents.[21] The maternal grandparents obtained a VRO for their protection.[22]
[20] Paragraph 138 of the Reasons delivered 8 November 2018.
[21] Paragraph 123, 140 & 165 of the Reasons delivered 8 November 2018.
[22] Paragraph 177 of the Reasons delivered 8 November 2018.
29 After separation, the father spent time with E. The father sent inappropriate emails to E.[23] Some of the father’s skype messages to E were abusive, threatening and inappropriate.[24]
[23] Paragraph 134 of the Reasons delivered 8 November 2018.
[24] Paragraph 142 & 164 of the Reasons delivered 8 November 2018.
30 In November 2016 the Court suspended the interim orders for E to spend unsupervised time with her father. The father’s time was then required to be supervised by a professional agency. He had ongoing Skype contact twice each week. In August 2017 the Court discharged the orders for unsupervised time.
31 Many of the supervised visits between the father and E were successful.[25] A number of visits were not, because of the father’s conduct.[26] On occasions, the father ended visits early. At times, the supervisors were required to intervene, to direct the father to stop denigrating the mother and asking E inappropriate questions. The supervision service warned the father their services would be terminated due to his excessive communication and contact, his disrespect towards staff, his failure to follow instructions and his ongoing denigration of the mother.[27]
[25] Paragraph 173 of the Reasons delivered 8 November 2018.
[26] Paragraphs 148, 151, 153, 155, 156, 159, 160, 166 - 172 of the Reasons delivered 8 November 2018.
[27] Paragraph 162 and 163 of the Reasons delivered 8 November 2018.
32 Dr J reported E was at risk of exposure to her father’s powerful and dominating personality style, and his attitudes towards others, including her mother. Dr J considered the father’s confusing messages of love and admiration for the mother, mixed with contempt and denigration, were the most likely urgent area of harm for E. Dr J stated supervised time would minimise the risks to E. She was not optimistic supervision could be maintained, because she did not perceive the father would easily comply with the advice, or directions of professionals.
33 The trial judge found:
•[E] had a close and loving relationship with her father, and she wanted to see him, however [E] was unlikely to comprehend the risk in terms of her father’s behaviour;
•The father was unable to provide for [E]’s emotional needs;
•Since separation, the father’s threatening and abusive behaviour towards the mother had not abated;
•[E] was at risk of psychological and physical harm and from being exposed to family violence perpetrated by the father upon the mother;
•The mother’s fear the father may harm [E] was well-founded;
•The father lacked self-control and was unable to moderate his behaviour, including in the presence of supervisors;
•The risks posed by the father to [E] were unable to be adequately managed by supervision, and such risks outweighed the possible benefits of that time. The trial judge considered the risks could only be ameliorated by a change in the father. Despite the father’s attendance at Alcoholics Anonymous and [a family violence program], he continued to behave in an unacceptable manner; and
•The father’s inappropriate behaviour overshadowed his appropriate behaviour. The father’s attitude to parenting prioritised his own needs, views and obsessions, over the needs of [E].
34 The trial judge concluded the benefit to E of having a meaningful relationship with her father was outweighed by the risks, including the potential to endanger E's relationship with her mother. A separation from the father was found to likely be of psychological benefit to E, as it would remove the need for her to modify her own behaviour, to conform to the father’s inappropriate behaviour and expectations.
35 The trial judge observed the father’s personality disorder had not been treated and accepted the evidence of Dr J that the father should consult a professional, who should have access to her report. The judge said the father may choose to accept Dr J’s advice and obtain professional assistance required to bring about a change in his attitude and behaviours. If he did so, then it remained open to the father to demonstrate that change in the future.
THE LAW
36 These proceedings are determined in accordance with Part 5 of the Family Court Act 1997 (WA) ("the Act"). Pursuant to s 89(2) of the Act the Court has the power to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37 In submissions filed 18 March 2020, the mother seeks for the Court to summarily dismiss the case pursuant to Rule 10.12 of the Family Law Rules 2004 (Cth) ("the Rules"), which states:
Rule 10.12: Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
38 Counsel for the mother further submits the Court can also summarily dismiss the case by way of common law, whereby the Court may find that a case is "doomed to fail" because there is no reasonable cause of action or the claim is clearly frivolous or vexatious.
39 The Full Court in Miller & Harrington (2008) FLC 93-383 observed that where a parenting application is sought to be dismissed on a summary or preliminary basis, the proper approach is to determine the matter by applying the rule in Rice & Asplund (1979) FLC 90-725, taking into account the child's best interests as the paramount consideration.
40 The Full Court, comprising of Warnick, Boland and Murphy JJ in Miller & Harrington (supra) stated:
69.This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute. (See, eg: Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors and Kelly & Ors (2006) FLC ¶93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).
70.In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.
71.The use of this terminology is readily understandable, both in the light of usage in authorities and usage in the Act, e.g. s 69ZQ(1)(a), which obliges the court hearing an application for parenting orders to “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily”.
72.It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73.The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
74.Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).
75.The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.
76.The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
41 The Full Court in Marsden & Winch (2009) 42 Fam LR 1 held:
[50]… Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
42 The Full Court then formulated the inquiry in the following terms:
[58]That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
43 Their Honours’ then went on to say:
[59]It is also important to highlight a certain class of case, of which this is one, where the court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child. These cases can provide different challenges, both for the applicant and the court. Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future. The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child…
44 The ICL relied upon the decision of Sutherland CJ in Finton & Kimble [2020] FCWA 7. Her Honour referred to the decision of Searson & Searson (2017) FLC 93-788 in which the Full Court summarised the law with respect to applications of the rule in Rice & Asplund at a preliminary stage. Her Honour stated, at [50]:
I emphasise the following points made by the Full Court in that decision:
(a)At whatever stage the rule is applied, its application should remain merely a manifestation of the “best interests principle”;
(b)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order;
(c)Even if the rule is applied at a preliminary stage, it remains a determination “on the merits”;
(d)The rule is to be applied on the assumption that the evidence of the applicant is accepted by the court;
(e)If an application is dismissed at a preliminary stage, it is because there is an insufficient change of circumstances shown to justify embarking on a final hearing;
(f)The underlying conclusion (whilst not always stated) will or ought to be that the interests of the child in not being subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
45 I respectfully agree and adopt her Honour’s approach.
THE FATHER'S POSITION
46 The father seeks to rely upon his affidavit filed 19 November 2019 and "all affidavits, appendices, letters, reports, documents, case notes and other information provided to the court since 9 November 2018".
47 The father's case is that he has followed the guidance of the Court and the Single Expert Witness and proactively sought to change his conduct.[28] The father has engaged in the services of a clinical psychologist, [Dr T]. He has also attended on [Dr V], a Consultant Psychiatrist for assessment. I will refer to the reports of Dr T and Dr V in more detail shortly.
[28] Affidavit filed 25 February 2019 paragraph 5.
48 The father deposed:
…I have gained insight into my poor behaviour both in and outside of the Family Court and offer my sincere apologies to all parties involved. Although I believe my actions were driven by intense frustration and feelings of helplessness in the face of the Court processes, it was extraordinarily inappropriate to engage in such deplorable behaviour and I am deeply remorseful for my actions.[29]
[29] Affidavit filed 25 February 2019 paragraph 7.
49 Further, the father deposed to being, "committed to seeking help on many fronts, including learning other ways of thinking and behaving, especially towards my child."[30]
[30] Affidavit filed 25 February 2019 paragraph 13.
50 The father has enrolled in and attends various courses including [a family violence program] and Alcoholics Anonymous twice weekly,[31] which has assisted his mental health and wellbeing. The father deposed, that through counselling, the [family violence program] and his new support network, he has gained significant insight into his behaviour and is continually working hard to change it.[32]
[31] Affidavit filed 25 February 2019 paragraph 17.
[32] Affidavit filed 25 February 2019 paragraph 24.
51 Since a Court hearing on 12 July 2019, the father deposed to completing [Parenting Program A] and attending [Parenting Program B].[33]
[33] Affidavit filed 3 October 2019 paragraph 15.
52 The father denies attempting to contact E by Skype, as claimed by the mother. He says he created email accounts for E following her birth, which have an associated Skype account. He sends emails to those addresses, to maintain the accounts. The father denies breaching orders of this Court and the VRO. He submits his compliance has been “unfailing, and his respect for the orders absolute”. The father submits the last breach of the VRO was in December 2017.
53 The father's desire is for the mother and him to soon be able to establish a co-parent relationship. He intends to put all significant issues aside, to work together, to foster the best interests of E and eradicate any risk of E being exposed to conflict.[34]
[34] Affidavit filed 25 February 2019, paragraph 22.
54 He now has support which he lacked in the past. That support has assisted him to gain “significant insight into my behaviour and am continually working hard to change it”.
55 He accepts Dr J’s view that he was insensitive and lacked insight,[35] but questions how he can gain insight into E’s life or emotional status, when he has no contact with her. He also refers on Dr J’s evidence that supervised time would mitigate the risks of harm to E.
[35] Affidavit filed 25 February 2019 paragraph 9.
THE MOTHER'S POSITION
56 The mother claims the father has breached the final orders and the VRO by posting correspondence addressed to E to the family home address, rather than the PO Box address provided to him. The mother reported this to the police and the father was charged. The charges were discontinued and no conviction was recorded.
57 The mother says the father lives 3km from her home. Further, [in] March 2020 whilst the mother was walking E to school, the father stopped in his car to allow E and the mother to cross [Street A]. The mother explained she "felt sick". The father was honking his horn to get their attention. E spotted him and waved.
58 The mother deposes to numerous attempts by the father to communicate with E via Skype, notwithstanding the current orders do not provide for this contact.[36]
[36] Affidavit filed 18 March 2020 paragraph 10.
59 She referred to watching a television interview with the family of [Ms X], who was allegedly murdered, together with her three children, by her former partner. The mother said:
…(they talked about the signs of stalking and controlling behaviour and I felt there were so many similarities in my situation to [Ms X]’s situation), which raised many feelings, leaving me emotional and making me feel very anxious but it was a “lightbulb moment” for me.
60 The mother says:
The combination of the attempts by [Mr Bagley] to contact [E] outside of the orders, the letter suggesting she is big enough to go to school by herself, discovering that he is living 3 kms from my home, encountering him in the street on the way to school with [E] (so that he knows her routine), his comments in his affidavits… where he refers to being “briefed as to times and locations of extra-scholastic activities” causes me to feel sick with fear and anxiety.
61 The mother says she is "struggling to cope with the idea of [Mr Bagley] speaking to or spending time with [E] given the impact that had upon her and I previously." Since the father has filed his application, the mother deposed to suffering two panic attacks.
THE INDEPENDENT CHILDREN'S LAWYER'S POSITION
62 The ICL acknowledges the father loves E, remains highly committed to E and the lack of contact between the father and E is distressing for him. She acknowledges the father's engagement in services to address the concerns of Dr J and those outlined in the Reasons and says the father's interactions with the ICL have been “entirely respectful”.
63 Notwithstanding the father's commitments outlined above, the ICL submits that the father continues to make comments that are “highly critical of the Mother and her care for [E]”.
64 The ICL adopts the comments of Justice Walter in Finton & Kimble [2017] FCWA 106, whereby the Court had regard to the likely adverse impact on the mother's wellbeing, as the sole caregiver for the children, to impose a contact arrangement on her that would be against her wishes.
65 His Honour found at [168] to “override the Mother's concerns and impose a contact arrangement against her wishes would be likely to heighten her stress, anxiety and hypervigilance and undermine her capacity to function and parent effectively. Such an outcome would not be in the children's best interests.”
66 The ICL does not support the current orders sought by the father, as she does not consider the father presently demonstrates a sufficient change of circumstances. Further, she deposes that the impact of the father's orders must be carefully weighed against the likely benefit to E. She does not consider telephone contact between E and her father, or the father having direct access to the school, would be sufficient to compensate for the likely adverse impact on the mother and E.
67 The ICL suggests the Court consider Dr J conducting a review when E is 12 years old. This may reduce potential risks, taking into account E's state of development, increasing in age and maturity. The ICL proposes the mother and father be independently assessed as to whether the father has made sufficient gains to warrant a review of the existing arrangements and the likely impact this would have on the mother.
Family Consultant
68 As outlined above, a Case Assessment Conference was held on 2 July 2019 with [a] Family Consultant. Both parties were interviewed separately, and the ICL also attended.
69 The Family Consultant commended the father on seeking treatment and the progress he had made. He considered the father’s engagement with Dr T was positive and in accordance with Dr J’s recommendations.
70 However, the Family Consultant stated that the father “has further to go in his treatment before he will be able to satisfy the Court the risks identified have been mitigated”.
71 By way of example the Family Consultant put to the father a sentence from his recently filed affidavit of 25 February 2019 which stated, "I have gained insight into my poor behaviour both inside and outside of the Family Court and…" The Family Consultant deposed:
… The father was asked on more than one occasion to elaborate on the insights he has gained. The answers given by the father tended to be specific when describing his own intrapersonal psychological processes. However, in contrast explanations offered about the specific risks to the child, were vague. At no point did the father acknowledge the family violence he has been found to have perpetrated and the impact on the mother and child. On the contrary the father appeared to maintain the view this represented false allegations by the mother. Similarly, while the father was willing to acknowledge he has said and done inappropriate things in the past he did not appear to take full responsibility for these and recognise the adverse impacts on [E].
Similarly, the Family Consultant notes that in his affidavit, immediately after describing his insight into his poor behaviour the father attributes this behaviour to the “intense frustration and feelings of helplessness in the face of the Court process”. With regard to family violence it is commonly understood that such external attributions represent maintaining factors of abusive behaviour. Moreover, such attributions limit responsibility taken to behaviour following the commencement of court proceedings. Many of the risks identified were based on behaviour that long preceded the involvement in the Court.
72 The Family Consultant held "significant concern" about the issue of family violence despite the father's engagement in dedicated domestic violence services for men. The Family Consultant deposed the father did not demonstrate sufficient insight into the pattern of abusive behaviour he has displayed in the past and the impact this would have on both the mother and the child.
73 The Consultant recommended that the father ensure Dr T had read both the report of Dr J and the Reasons, to enable the father’s therapy to be targeted towards the specific identified concerns in terms of the risks to E from his behaviour and attitudes. Since that time, Dr T has acknowledged reading the Reasons. He has read Dr J’s report.[37]
[37] Letter from Dr T dated 10 July 2019.
74 The Family Consultant noted, against the backdrop of protracted family violence, "seemingly trivial actions such as sending letters to the mother's address could potentially have a significant emotional impact on a mother who has experienced fear and intimidation and thereby also impact the child in the mother's case".
75 The Consultant said he was encouraged by the father’s steps to date and his commitment to treatment, however, in his view “the depth of insight demonstrated by the father in his affidavit and at the Case Assessment Conference does not nearly match the depth of concern about risks posed to the child by the father and his attitudes and behaviour”.
Dr T
76 The father attends upon Dr T, clinical psychologist, for therapeutic counselling and has been attending on him on a weekly basis since shortly prior to the publication of the Reasons, in November 2018.
77 Annexure J to the father's affidavit filed 25 February 2019 is a letter from Dr T dated 7 February 2019.
78 Dr T states:
[Mr Bagley] is embracing counselling/psychological process and he is working towards making changes to his attitude and behaviours that would enable him to spend time with his daughter.
…
[Dr J] reported the results of psychometric testing suggest that [Mr Bagley] might meet the criteria for Antisocial Personality Disorder. A diagnosis of Antisocial Personality Disorder may take some time to establish and given the brief duration of the testing process conducted by [Dr J], I have not assumed that [Mr Bagley] has a formal diagnosis.
…
79 Dr T says his sessions with the father have included psychotherapies for personality disorder which have focused on behavioural and mood issues. The sessions have also focused on “enhancing [Mr Bagley]’s capacity to understand and more appropriately modulate his emotional responses, and improve the quality of his relationships”.
80 Dr T concluded his report, noting while he had only been seeing the father for a relatively short period of time, Dr T was encouraged by the father’s commitment to improve his self-awareness and relationships. While the sessions had been confronting, the father had embraced the therapeutic process. Dr T expressed “there is no doubt that he has a strong desire to make meaningful changes in his life”.
81 Dr T wrote a further letter on 10 July 2019, describing the father as making “meaningful headway” in addressing the issues of concern raised in the Reasons.
Dr V
82 On 27 September 2019, the father attended upon Dr V for an independent psychiatric assessment. Annexure I to the father's affidavit filed 25 February 2019 is a letter from Dr V dated 30 September 2019.
83 Dr V provided a diagnostic assessment and treatment recommendation for the father's mild depressive mental disorder.
84 Dr V described the father’s depressive symptoms including low mood, reduced energy and sleep and a loss of confidence. Dr V did not consider the father showed signs or symptoms of a previous or current psychosis, hypomania, anxiety or personality disorder.
85 He stated:
[Mr Bagley] had symptoms consistent with the above disorder [mild depressive episode] which started in 2015 but these have been in remission since starting the above medication in 2016.
…
His depression was precipitated by the break down of an 11 year relationship… He reported the relationship had been strained for the last few years of the relationship because he described her as a compulsive liar. He said this included her lying over trivial matters. He said he was unable to understand this but he hypothesised she lied because she could not cope with the idea of "anything detracting from her.”
He also described her as controlling him during the relationship….He said she sought counselling as she acknowledged having issue with lying and that she attended 4 to 5 sessions prior to the end of their relationship. He said he attended the same psychologist as part of her/their therapy but he said she lied to the psychologist who he felt took his ex-partner's side.
He said he eventually had to move out of the family home after she took out a Violence Restraining Order (VRO) on him in 2015 after she alleged that he was physically abusive.
…
…my assessment showed his depressive symptoms have been in remission since his GP started him on Escitalopram in 2016.
[Mr Bagley] had insight in regard to acknowledging he had the above disorder and that he had benefitted from the above medication and psychological therapy.
DISCUSSION/CONCLUSION:
86 Judgment was delivered on 8 November 2018, following a lengthy trial, conducted over many months. The orders reflected the findings of the trial judge as being in the best interests of E at that time.
87 In December 2018 the father unsuccessfully attempted to commence proceedings. On 25 February 2019, when the father commenced the current proceedings, he acknowledged he was “not a perfect parent and have made mistakes in the past with my words and behaviour towards the child, however I love my child very much and miss her terribly”.[38]
[38] Paragraph 25 affidavit 25 February 2019.
88 The father’s application has been made less than four months after the conclusion of the earlier proceedings. The Family Consultant said the father should not be criticised for his impatience and enthusiasm despite the Family Consultant considering his application was premature.
89 The father submits he has established a prima face case that his circumstances have changed and are sufficient to warrant the Court considering varying the 2018 orders.
90 As I explained to the father during the hearing, I am required to take his case at its highest.
91 I accept the father has taken significant steps since the orders, to endeavour to address the concerns raised. The father is to be commended for his efforts attending upon Dr T, together with his ongoing attendance and participation with both a family violence program and Alcoholics Anonymous. I agree with the ICL that the father’s conduct reflects his commitment to E.
92 I accept, as did the trial judge and the Family Consultant, that the father loves E and has a deep affection for her. He considers he has much to offer as her parent. The trial judge found E loved her father and missed him.
93 The lack of contact between the father and E is clearly distressing and upsetting for him.
94 The ICL described the father’s interactions with her as respectful, polite and appropriate, including in challenging discussions. She said the father was quite different to the person she had expected to meet, after reading the Reasons and Dr J’s report. Similarly, the Family Consultant found the father to be conciliatory, co-operative and respectful.
95 Both the ICL and Family Consultant described the father as receptive to their recommendations and feedback. Again, the father is to be commended in this regard, which stands in contrast to his conduct at trial. It is indicative of the father’s progress in seeking to moderate his behaviour and interactions with others.
96 The Family Consultant acknowledged the father had made progress in his treatment but considered the father continued to lack insight, into the impact his violence and abusive behaviour had on both the mother and E. The father attributed his previous behaviour to his feelings of frustration and helplessness, failing to take responsibility and continuing to attribute blame to external factors. The father failed to adequately acknowledge and take responsibility for the negative impact of his conduct on E.
97 When the Family Consultant asked the father about sending correspondence to the mother’s house instead of the PO Box, the father acknowledged doing so and said, "I might have been taking the piss".
98 The ICL described Dr V’s assessment as benign and unsurprisingly, in the context of the father presenting as an intelligent, charming and highly educated man. She said the assessment illustrated the father’s resilience.
99 I accept Dr V’s assessment of the father. However, it must be considered in the context of Dr V not having the benefit of either the Reasons or Dr J’s report. The Reasons included material findings about each parent’s conduct, assessments of credit and issues in dispute. As a result, Dr V did not have the advantage of appreciating why the Court made the orders it did. The Reasons would have enabled Dr V further information to assist the father, and indeed to challenge the father’s narrative.
100 The father deposed that Dr J’s report had been treated with suspicion, read and then dismissed by his treating practitioners. That is not what is stated by either Dr T or Dr V. As already observed, Dr T referred to Dr J questioning whether the father may meet the criteria for an antisocial personality disorder. Dr T acknowledged no such formal diagnosis had been made and he did not assume a formal diagnosis.
101 While the father says that since the Conference, he has continued to make significant changes, sufficient to justify the Court embarking upon a final hearing, I do not agree for a number of reasons.
102 Firstly, the trial judge made a number of findings about the risks the father’s attitudes and conduct raised for E, and stated, at [216]:
Dr [J] reported that the risks for [E] are in the exposure to her father's powerful and dominating personality style, and attitudes towards others including, and particularly, her mother. Dr [J] further reported that the father's confusing messages of love and admiration for the mother, mixed with contempt and denigration, is likely to be the most urgent area of harm for [E].
103 When considering the nature of E’s relationship with each parent, the trial judge found, at [229]:
[E] has a close and loving relationship with the mother and with the maternal grandparents. I accept she also has a loving relationship with the father. Dr [J] reported that [E] loves the father, but finds him intimidating. She reported [E]'s relationship with the father is "corroded" by exposure to the father's thoughts, opinions and attitudes, which are likely to be confusing to her. In particular, the father has not shielded [E] from his anger and criticism of the mother. This has the potential to undermine [E]'s relationship with the mother. For example, [E] referred to the mother telling four lies and to the grandparents being evil. Both of these references come from the father. This becomes less of a risk as [E] matures, but at this time it is an unhealthy aspect to [E]'s relationship with the father.
104 The father’s ongoing criticisms of the mother must be viewed in the context of those findings. The father’s evidence was littered with criticisms and complaints towards the mother. Some criticisms were subtle, for example, describing E’s education as “heading in the wrong direction” in the mother’s care. The father did not consider such a comment to be critical. Some criticisms were more overt. He accused the mother of deliberately forging his signature and manipulating his letters to E, for “which will now have to be pursued through the court”. The father deposed the mother’s concerns about Dr V’s report, “may spring from the mother’s elevated level of Paranoia Persecution”. He explained he had told Dr V why the parties’ relationship had ended and “any ill feeling here reside solely in the mind of the mother”.
105 The father was highly critical of the mother’s evidence about Ms X and submitted the mother had compared him “to a crazed multiple murderer”. The father mischaracterised the mother’s evidence. The mother’s evidence underscored her ongoing fear and anxiety of the father.
106 Secondly, the father’s submissions continued the theme of criticising the mother. He referred to not wanting to be angry or critical of the mother, then proceeded to criticise the mother’s evidence and her parenting. He stated the mother “suffers from a paranoia persecution” which he maintained in his oral submissions. The ICL described that as an assertion without foundation. I agree. The mother completed a PAI personality report as part of the Single Expert Witness’ report. Dr J recorded the mother’s results revealed mild elevations on the paranoid persecution and traumatic stress scales. Dr J said those mild elevations suggest the mother “feels persecuted and reports a range of symptoms associated with traumatic stress, including nightmares, anxiety and hypervigilance.” There was no evidence that the mother had been formally diagnosed, despite the father’s submissions to the contrary.
107 The father submitted he was deeply concerned that the mother’s stress and paranoia were harming E. He disputed the mother’s characterisation of their parents’ relationship of not being mutually respectful and trusting was “ridiculous”. He accused the mother of declaring an unjustified fear towards him and the mother of making self-fulfilling prophecies. Those submissions are directly contradicted by the Reasons and considered findings of the Trial Judge.
108 Thirdly, the mother continues to have fears and anxieties about the father. The basis for her fears as to the risks the father poses to E were clearly articulated by Dr J and in the trial judge’s Reasons. A significant risk to E is the father’s negative view of the mother, which E has been exposed to. The trial judge found the mother was exhausted and worn down by the father’s conduct. The mother’s current evidence is that she continues to feel persecuted and criticised by the father. The mother says she is exhausted and stressed. She is fearful and mistrusting of the father. The Court cannot ignore the impact these proceedings have on the mother, and by extension, her capacity to care for E. The father’s evidence does not demonstrate any genuine insight into these matters. Rather, the father was dismissive and critical of the mother’s evidence in this regard.
109 Fourthly, the father’s reporting to Dr V includes criticisms of the mother. Dr V recorded the father’s description of the mother being a “compulsive liar”, who controlled him during their relationship. The father hypothesized to Dr V the mother “lied because she could not cope with the idea of “anything detracting from her”.”
110 Fifthly, the father has not yet satisfactorily addressed the risks identified in the Reasons. The trial judge found the father had behaved in a violent manner towards the mother during their relationship. His threatening and abusive behaviour continued after separation and throughout the proceedings, as well as the trial. The father has failed to fully address or acknowledge the impact of ongoing proceedings on the mother. The Family Consultant raised significant concerns about family violence and the father’s failure to demonstrate sufficient insight into his pattern of abusive behaviour and its impact on the mother. In that regard, the Consultant wrote “against the backdrop of protracted family violence, seemingly trivial actions such as sending letters to the mother’s address could potentially have a significant emotional impact on the mother who has experienced fear and intimidation and thereby also impact the child in the mother’s care”. The mother’s evidence highlights her ongoing fear and mistrust of the father.
111 Finally, I agree with the ICL that there is no evidence to suggest that the parents had been able to establish a mutually respectful and trusting relationship with one another, in the relatively short period of time since the orders were made. The ICL submits the father’s commencement of proceedings, less than four months after delivery of Reasons, has not allowed the mother or E adequate time to recover from the protracted proceedings which had been on foot since 2015. The mother’s counsel said these proceedings had not allowed the mother to “draw breath” since the trial, and allow an opportunity for her and E to get on with their lives. Dr J described the mother as reporting in 2017 a range of symptoms associated with traumatic stress, including nightmares, anxiety and hypervigilance. Since the father commenced these proceedings, the mother says her anxiety and distress have heightened and she is again experiencing the symptoms identified by Dr J. The mother remains highly concerned about the prospect of contact between the father and E. The basis for the mother’s concerns were found by the trial judge to be well-founded.
112 For these Reasons, I am not satisfied that the father has established a prima facie case of changed circumstances sufficient to justify embarking upon a final hearing.
113 Further, I am not satisfied if the matter proceeded to a final hearing, there is a likelihood of the orders being varied in a significant way, or there being a sufficient benefit to compensate for the disruption caused by re-litigating the matter. In reaching that conclusion, I take into account Dr J’s evidence, as accepted by the trial judge, together with the findings of the trial judge, to which I have previously referred.
114 The ICL proposed Dr T receive the submissions filed by the ICL and the mother, the mother’s affidavit and these reasons. Dr T would then have independent feedback as to how others view the father’s progress to date and the ongoing concerns, which may assist the father in future therapy. This was not the topic of any oral submissions by either the mother’s counsel or the father. I accept that may be of benefit to the father, should he wish to take up the opportunity. That may assist in his therapy with Dr T and in doing so, ultimately be to E’s benefit. I propose to hear from the parties, as to whether that order can be made by consent.
115 The ICL invited the Court to consider a review be conducted by Dr J, upon E turning 12 years old. She submitted such a review could be subject to funding and involve only the parents. The ICL submitted an independent assessment of the father’s progress at that time, would assist the parties and ultimately the Court, in considering whether they were sufficient to conduct a review of the existing orders and the likely impact upon the mother and E.
116 Neither parent supported that proposal. The ICL explained she was not wedded to the proposal, but considered there may be a number of benefits, including providing a hiatus to the proceedings, while giving each parent some certainty about the path forward. When E is 12 years old, she will be moving into a different developmental stage.
117 I accept the father considers waiting until E is 12 years old is far too long a period before conducting a review. I accept the mother has ongoing fears and anxieties about further litigation concerning E. The parties have been involved in lengthy litigation to date, which has been stressful and difficult for each of them.
118 The trial judge considered if the father accepted Dr J’s advice and obtained psychological assistance, it was open to him to demonstrate a change in his attitudes and behaviours. In those circumstances, the trial judge contemplated the matter may come back before the Court “at an appropriate time in the future”.
119 After careful consideration of the evidence, in my view, the ICL’s proposals have significant merit. I propose the hear from the parties as to the form of the proposed orders for Dr J to conduct a review when E is 12 years old, subject to Legal Aid funding, with such review to be limited to the parents only in the first instance.
PROPOSED ORDERS
120Subject to hearing from the parties:
1.The father have leave to provide to [Dr T]:
(a)the written submissions of the Independent Children’s Lawyer filed 24 March 2020;
(b)the written submission of the mother and her affidavit filed 18 March 2020; and
(c)these Reasons published 29 April 2020.
2.The father’s Form 1 and the mother’s Form 1A be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
29 APRIL 2020
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