BASILE & WEN
[2019] FCCA 3259
•15 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASILE & WEN | [2019] FCCA 3259 |
| Catchwords: FAMILY LAW – Equal Shared Parental Responsibility – spend time arrangements – failure to attend a Men’s Behaviour Change Program or attend court ordered programs – where the parties are unable to co-parent – high levels of parental conflict – where the children show affection to both parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 61DA(1), 61DA(2), 91B |
| Applicant: | MR BASILE |
| Respondent: | MS WEN |
| File Number: | MLC 4885 of 2016 |
| Judgment of: | Judge McNab |
| Hearing dates: | 29 January 2018, 12 and 13 November 2019, 4 April 2019, and 14 and 15 October 2019 |
| Date of Last Submission: | 15 October 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 15 October 2019 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Ms LaGreca |
| Solicitors for the Respondent: | Pentana Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Dunlop |
| Solicitors for the Independent Children’s Lawyer: | Bowlen Dunstan and Associates |
ORDERS
Parental Responsibility
Subject to Order 2 and 3 below, the mother have sole parental responsibility for the children [X] born … 2009, [Y] born … 2001 and [Z] born … 2012 (‘the children’).
Save in the event of an emergency, before making any decision relating to any long term issue regarding health and education in relation to the children, the mother shall notify the father of her proposed action not less than 21 days prior and consider any view of the father prior to giving effect to any such decision.
Live with Arrangements
The children live with the mother.
Spend time Arrangements
The children spend time and communicate with the father as follows:
(a)every four weeks on a Saturday for 6 hours as agreed by the parties, and failing agreement from 10:00am to 4:00pm commencing 26 October 2019;
(b)by telephone each alternate Wednesday between 5:30pm and 6:30pm commencing 23 October 2019;
(c)for each of the children’s birthdays by telephone between 5:30pm and 6:30pm, and for 2 hours on the Saturday nearest to the children’s birthdays if the father is not already spending time with the children in accordance with Order 4(a).
(d)for Father’s Day, the spend time in Order 4(a) be changed to the Sunday in place of the nearest Saturday spend time to Father’s Day;
(e)for Easter the monthly spend time be changed to the Easter weekend on the Saturday or Sunday as agreed between the parties in writing by text message;
(f)on Boxing Day from 10:00am to 6:00pm; and
(g)at other such times as agreed between the parties in writing.
For the purposes of spend time in accordance with these Orders, the time be under the substantial attendance of the father’s partner – Ms A or the Paternal Grandmother – Ms J Basile, unless agreed by the parties in writing.
The father be at liberty to attend spend time of the children and the Paternal Grandmother, subject to the Paternal Grandmother’s agreement.
Changeover
Changeovers at the commencement and conclusion of all face to face spend time be at McDonald’s Restaurant in Suburb B unless otherwise agreed by text message.
Medical Arrangements
The mother continue to authorise the children’s treating medical practitioners to speak with the father and the father be permitted to obtain any information relating to the medical conditions of the children or any of them.
School
In respect of schooling:
(a)Both parties be authorised to obtain information ordinarily provided to parents from the children’s school including the online school portal;
(b)The Father be permitted to attend (separately) parent teacher interviews, Father’s night, school concerts/presentations, sporting events and any other event parents are ordinarily invited to attend;
(c)The Mother do all things necessary to ensure the children’s attendance at their respective schools and that they attend school on time; and
(d)The mother advise the father of any proposed changes to the children’s school 60 days prior to such proposed change and consider any view of the father in giving effect to any change of schools.
Non-Denigration
The parents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and
(b)Discussing these proceedings, any documents filed in these proceedings on the long term arrangements of the children, or allowing the children to be exposed directly or indirectly to any documents filed in these proceedings, within their presence or hearing save for confirming the spend time arrangements with the children, or allowing any other person to do so and shall remove the children from the presence or hearing of any other person who is doing so.
The Father be and are hereby restrained by injunction from making critical or insulting remarks regarding decisions made by the mother about the medical care and treatment of the children.
Further Applications
The father be restrained from making further Applications to this Court or to the Family Court, to increase the amount of his time he spends with any of the children until he has completed a Men’s Behavioural Change Program conducted through Relationships Australia (Victoria).
The appointment of the independent Children’s Lawyer be discharged.
All outstanding applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Basile & Wen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 4885 of 2016
| MR BASILE |
Applicant
And
| MS WEN |
Respondent
REASONS FOR JUDGMENT
(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
This case concerns the Applicant father (‘father’), Mr Basile born … 1979, the Respondent mother (‘mother’), Ms Wen born … 1986, and their three children:
a)[X] born … 2009;
b)[Y] born … 2011, and
c)[Z] born … 2012 (‘the children’).
The mother and father’s relationship commenced in 2009 and they separated on … 2016.
Background
The father has re-partnered with Ms A and has a young child with her, who is about seven weeks of age. The mother has not re-partnered.
The mother has a child from another relationship, [C], who is aged 13 and who lives with the mother and the children. The mother is fully engaged in looking after these children.
The father has a son, [D], aged 10, from another relationship, who lives in Sydney with his mother.
The father has not worked since about 1997, and has been in receipt of workers compensation for a shoulder injury since about that time. He advised the Court that he has trained as a technician and obtained a licence to work as such. He says that he is in the process of setting up a business in that field.
Procedural history
This is a complex and difficult matter which was issued by way of an application filed by the father for recovery of the children following separation on … 2016.
The matter has been the subject of three previous listings for final hearing, being 29 and 30 January 2018 (‘hearing 1’); 12 and 13 November 2018 (‘hearing 2’); and 4 April 2019 (‘hearing 3’). This is hearing 4.
Hearing 1 ran for two days and evidence was called by both parties. Hearing 1 was adjourned to obtain psychiatric assessment of the father.
Hearing 2 was completed and interim orders were made for the father to complete courses the Men’s Behaviour Change Program (‘MBCP’).
Hearing 3 was again adjourned for the father to complete a MBCP.
The father did not complete the courses which were the subject of orders arising from hearings 2 and 3.
The current hearing
As to the final hearing listed on 14 and 15 October 2019, the father appeared unrepresented, Ms LaGreca appeared for the mother and Ms Dunlop of Counsel appeared for the Independent Children’s Lawyer (‘ICL’).
The mother and the ICL have proposed final orders which essentially seek that the mother have sole parental responsibility for the children and that the father spend time with the children every fourth Saturday for six hours, at a time agreed between the parties. In the event that the parties fail to agree, from 10am to 4pm.
The proposed orders also provides for telephone attendances between the father and the children each alternate Wednesday between 5.30 and 6.30 pm. There is also provision made for Father’s Day and telephone time with the children on their birthdays.
The father seeks orders for equal shared parental responsibility and equal spend-time arrangements. The father advises the Court that he did not intend to cross-examine the wife. Given this indication, there was no need for the father to be represented for the purposes of the hearing yesterday.
Evidence
Evidence of the Family Report
The Court has had the benefit of a Family Report prepared by Ms E (‘the Report Writer’) that was dated 29 November 2017, and an addendum Family Report dated 2 November 2018.
The Family Report sets out the family background. At [5] of the Family Report, the Report Writer helpfully summarises the particular features of the case involving the health of one of the children, [Y]. It states:
5. [Y] was diagnosed with E Disease at 8 weeks old and he is provided with on-going treatment via F Hospital. He has had repeated admissions to hospital in relation to his condition and currently has a stoma fitted, which has prolapsed on a number of occasions. The F Hospital records demonstrate that Mr Basile has complained about Ms Wen's management of [Y]'s condition and made allegations of Ms Wen neglecting [Y] and of intentionally harming [Y]. In September 2016 Mr Basile made several complaints to the hospital referring to Ms Wen as having Munchausen's by proxy and of pulling [Y]'s stoma out. The Social Worker notes confirm that the hospital has no concerns regarding Ms Wen's management of [Y]s condition, but that the father has a history of contacting F Hospital with complaints about the mother.
The evidence before the Court at this hearing, in particular annexure B07 to the father’s affidavit of 10 October 2019, indicates that [Y] has appointments for further procedures which will have him hospitalised for two to three days.
Due to [Y]’s medical condition, the mother is on call to assist him at school. In the midst of this dispute between the parents (a dispute caused largely by either the father’s incapacity or lack of interest in modifying his behaviour and moving to a point of trying to give the mother genuine assistance), there is a little boy with significant care needs. The Court is mindful of this in framing orders.
As to the background of the initiating proceedings, the Family Report provides a narrative based on the affidavit material that was filed at the time when the report was prepared. At [7] of the Family Report, it provides that the father and Ms Wen met and commenced cohabitation in around 2009 and finally separated in March 2016. It is reported that whilst the father was in Sydney for a medical assessment arising from his workers compensation claim, the mother left the family home with the children and entered into a community-based refuge.
At [8] the Family Report notes that there were 14 reports to the Department of Health and Human Services (‘DHHS’) between October 2015 and June 2017, all of which were closed at the intake phase. Six of the reports to DHHS related to allegations in relation to exposure to family violence perpetuated by the father. Further reports related to the mother’s parenting capacity, with allegations relating to Ms Wen’s mental health and that she was not meeting the children’s medical and educational needs.
At [9] of the Family Report, the Report Writer refers to a report compiled in response to an order made on 22 June 2017 pursuant to section 91B of the Family Law Act 1975 (Cth) (‘the Act’) (‘section 91B report’). That report, which I will deal with in greater detail below, expressed concerns that the children were at likelihood of emotional and physical harm in the care of the father and recommended that further time be professionally supervised due to allegations that the father had continued to expose the children to verbal denigration of their mother when his time was supervised by family friends.
DHHS recommended to the father that he attend anger management and family violence counselling. However, the father was reported to have refused to meet a second time with the DHHS to discuss this further. The father was reported to consider that he did not need to engage with any support services for himself. As the narration of the facts of this matter and the progress of this matter continues, it is apparent to the Court that the father continues to hold this view that he does not need to engage with services to assist him in his relationship with the mother and the children.
There have been numerous allegations of family violence, in particular that the father is unrestrainedly critical of the mother in front of the children. The mother alleges that the father has been physically violent towards the children. This is reported at [41] of the Family Report, where the Report Writer noted, again based on the material that had been filed, that the mother alleged that during the relationship, the father would verbally abuse her for spending time with [Y] in the hospital and would tell the other children that she did not want to spend time with them or wish to come home.
The mother alleged that the children would be emotionally and physically abused when left alone in the care of their father. She alleged that prior to separation, the father had kicked the children, hit them around the head, and whipped them with a towel. She alleged that these assaults have left red welts and markings on the children. In particular, she alleged that the father had kicked [Y] in the stomach in the vicinity of his stoma, causing red markings.
Evidence from the section 91B report
The mother’s and the children’s concerns were subsequently recorded and noted at length in a detailed response provided by the section 91B report. Page 3 of that report notes that child protection practitioners interviewed the father on 6 June 2017 at the DHHS office in Dandenong.
At that meeting, the father denied any allegations of inappropriately physically disciplining or exposing the children to family violence and threats. The report stated at page 3 that:
Mr Basile attempted to re-direct the interview alleging that Ms Wen was neglecting the children, specifically in regards to [Z]’s teeth, [Y]’s medical care for his stoma and the children’s school attendance.
Below that paragraph, the report notes that child protection practitioners completed a home visit and the children on 20 June 2017 and, during the visit, spoke with the children. The report provides as follows:
During the visit [X] stated she understood she was not seeing her father (Mr Basile) at the moment as he needs to behave, and not be naughty and swear. When Child Protection Practitioners discussed with the children about having supervised contact with Mr Basile, the children indicated in the past when this has occurred Mr Basile has called Ms G (previous supervisor) a “pig” and a “cunt”. [Y] also stated to Child Protection Practitioners (unprompted) “do you know where dad keeps his guns and knives?” Child Protection Practitioners said no and asked where. To which [Y] responded “at Ms A’s house”, [Y] went on to say he has seen them there.
The DHHS reported that they held concerns that the children were at likelihood of emotional and physical harm, given what they disclosed after contact with the father.
The report notes that the father has denied any of these allegations and has stated that the mother is manipulating the children. The report, however, states ‘there is a significant pattern and history with the consistent protective concerns’, adding that:
The children have disclosed that even when contact with Mr Basile is supervised by a family friend (ie. Ms G or Ms A) Mr Basile has been abusive, and used derogatory language in front of the children. Further [Y] disclosed to Child Protection Practitioners that “dad keeps his guns and knives at Ms A’s house” and that he has seen them there.
Importantly, the report notes that:
On the 22nd of June 2017, Child Protection Practitioners attempted to again explain the concerns to Mr Basile and recommended that he attend anger management and family violence counselling to gain insight into the impact of family violence on the children. However, Mr Basile refused to meet with workers again to discuss this, stated he didn’t think it was necessary to engage with support services himself.
The report concluded that:
Given the above, it is concerning that Mr Basile continues to expose the children to verbal abuse and derogatory language even when the contact is supervised by a family friend. Child Protection have concerns that if the children are exposed to this ongoing, it will place them at a significant risk of emotional harm. Thus, DHHS respectfully recommend that the father have contact supervised by a contact centre, to ensure the supervisor is objective and able to act in the best interest of the children and ensure their safety and well-being.
In my view, it is significant that the father indicated that he would not attend anger management and family violence counselling, notwithstanding that it was urged upon him by DHHS practitioners.
Family Report
The Family Report also records the father’s concerns about the mother, the mother’s mental health and the care of the children. In particular, and recorded at [49] of the section 91B report, he alleges that the mother has intentionally inflicted harm on the child [Y] in relation to his stoma.
These allegations have been made repeatedly by the father including in the witness box in January 2018. The Court was sufficiently concerned by the father’s presentation in January 2018 such that it ordered that he be psychiatrically assessed with a copy of the relevant part of the transcript being provided to the assessor.
None of the father’s concerns regarding the mother’s care of [Y] are confirmed by medical records held by the F Hospital.
The Report Writer met with each of the children and parents and observed the parents interacting with the children. Significantly, the observations of the Family Report writer indicated that the children seemed to swear freely and the mother seemed to have little control over the children. There was nothing in the father’s behaviour in the observation to indicate that the father had stirred the children up. The Report Writer stated at [84]:
84. Mr Basile distracted all the children into one activity and they all engaged briefly together in the sand, taking it in turns to hide items for the other to find which went well until it became [X]’s tum and [Z] became angry. He slapped [Y] and when Ms Wen intervened [Y] stated "I'm playing something else bitch" and started to climb on the sofa. Ms Wen spoke to him about swearing and [Y] appeared to be ignoring her and kicked out at [Z] and [Y] then began physically fighting and chasing each other around the room and when Ms Wen intervened [Z] punched her to the arm before screaming "I'm sorry" in her face. The two boys then continued to disregard their mother, with [Y] calling [Z] an "arsehole" and to physically fight, with [Z] slapping [Y] in the face and attempting to punch and kick his mother. Ms Wen sat [Z] in a chair while he cried but then he ran off with Ms Wen chasing him around the room. [X] appeared to ignore the behaviour around her and continued to play quietly.
The following paragraph makes reference to the mother having a dazed look on her face as if she had tuned out of the situation. She needed assistance in getting the children ready to leave the observation centre.
At [87] of the report, the Report Writer assessed the likelihood of the children being in a meaningful relationship with both parents to be highly compromised due to the level of parental conflict. The Report Writer was of the view that the parenting capacity of both parents was compromised, particularly with the father lacking insight into the effect of his behaviour on the children and his habit of undermining the mother’s capacity to parent.
At the hearing concluded in January 2018, the parties and their representatives had the benefit of the Family Report. There were recommendations in the Family Report that included that the father engage in anger management and family violence counselling to assist in his understanding of the impact parental conflict has on the children. It is notable that the father did not engage in a program prior to the hearing or indicate to the Court at that time that he was intending to do so.
Evidence of Mr H, neurosurgeon
As a result of the father’s evidence in hearing 1, the Court was so concerned about the father’s presentation that the Court ordered that he be assessed psychiatrically. Concerns were raised because the father consistently put to the Court that the mother was engaging in conduct of intentionally injuring her son in relation to the medical condition that he has. This is despite the clear evidence that [Y] does have a medical condition which is of a serious kind.
Mr H, a clinical neuropsychologist, was engaged to provide the medical report. Mr H provided the parties with a detailed report. Evidence given by the father on 14 October 2019 indicated that he had not read that report. This is a profoundly disappointing situation. Whilst the father said that he had not read it, he was critical of the report because he claimed that the assessor had been fed information by the wife or the wife’s solicitor. That is not apparent on reading that report.
Mr H conducted a thorough review of the father’s medical history and reviewed the documents including medical reports prepared by a psychiatrist, Mr I. He also referenced a report by a clinical psychologist who the father saw by the name of Mr J. Mr H noted that Mr J made comments in a report dated 11 January 2018 that Mr Basile:
presents with normal and understandable anger in relation to the allegations made against him by his ex-partner.
Mr J further stated that the father ‘never presented in an acutely angry or aggressive manner in sessions’ and ‘never displayed any inappropriate expressions of anger toward [Mr J], nor toward his ex-partner or his children’.
Mr J stated that he found no evidence to suggest the father had been violent or aggressive to his ex-partner or children. Mr J concluded that he had:
not identified any problems around anger management or concerns around family violence requiring anger management or family violence counselling
I note that the father, in all the hearings that have been conducted in this matter, has referred to Mr J’s report. I pause to note that Mr J had no qualification to make the observation that he purported to make. He was in no position to make findings of fact in relation to allegations of family violence. In the context of this case, his unqualified expression of views has been most unhelpful.
For the purposes of the assessment conducted by Mr H, the father participated in seven hours of assessment. He was subjected to a series of tests for the purpose of the assessment. These tests indicated that he was of borderline impaired IQ (2-8%). His written/mathematical comprehension is borderline impaired, with his academic achievement composite score found to be extremely low, below the bottom second percentile. In review, under the heading Executive Function, the assessor stated:
Qualitatively and in practical terms, however, when it came to reasoning through his relationship with his ex-partner and his beliefs around the same, Mr Basile appeared rigid and inflexible in his thinking, and, in my view, demonstrated reduced levels of insight into the unusual nature of his beliefs or the potential impact of his behaviour on the people around him.
Mr H then set out transcripts of the exchange that he had with the father in relation to the issues in the case, including his swearing, his attitude to [Y]’s medical condition and his conduct towards the mother. In his analysis under the heading ‘1. The father’s thought process as it relates to the mother and the mother’s allegations’, Mr H stated (at page 21 of his report) that:
Mr Basile denies the allegations of physical abuse. He acknowledges verbal abuse directed toward Ms Wen and, with prompting, was able to recognise the potential impact on his children and Ms Wen herself. However, he did appear to under-report the likelihood his children overheard this verbal abuse and, consequently, likely continues to underestimate its impact. Mr Basile appears frustrated with Ms Wen. He does not appear to be proactive in trying to improve the nature of his interactions with her. When I suggested he consider ways of improving his relationship with Ms Wen, he responded: “I can't be responsible for her." The prognosis for an improvement in his interactions with Ms Wen remains guarded.
Under the heading ‘RECOMMENDATIONS’, Mr H recommended that the father participate in counselling with a focus on practising listening skills. He also supported the Family Report writer’s suggestion for family violence counselling, stating, ‘I support Mr Basile's participation in the Parenting Orders Program, Family Life’.
Mr H noted that any communication regarding medical conditions with the father be conveyed in plain English, in written form with the pros and cons of any intervention to be clearly specified. He also recommended that there be a referral to a district nursing service, such as Health Care Service K, to help bed down good stoma management if the father was to take on some of the care of his children.
These clear recommendations were made for the benefit of the father. He did not take them up. In particular, he did not engage with a program to deal with family violence or MBCP.
Family Report – addendum
Following the provision of Mr H’s report, Ms E provided an addendum report. She continued to hold fears or concerns that the father would continue to expose the children to his views in relation to Ms Wen; in particular, in relation to the care of [Y]. At [5], the Report Writer stated:
5. The assessment of Mr H suggests that significant concern remains of the likelihood that not only has Mr Basile continued to underestimate the impact of his derogatory behaviour towards the mother on the children, but he appears to have limited motivation to proactively engage in interventions that would improve his relationship with Ms Wen for the purposes of co-parenting the children, which remains highly compromised. While Mr H suggests that this can be cultivated by a specific style of "assertive and concrete" intervention in relation to family violence, Mr Basile's motivation to engage in this type of counselling remains untested, with no information to suggest he has actively sought appropriate assistance.
One would have thought that when reading the report from the DHHS, the initial Family Report, the report from Mr H and the addendum to the Family Report, that there would have been active engagement in counselling or assistance of the kind recommended. I accept that the tests suggest that the father is operating at a low level in terms of intellectual IQ, but these recommendations are in plain English and have been clearly put. I do not understand why he has not actively sought to engage because, ultimately, that would have been to his benefit.
Orders were made in 2018 for him to enrol in a course, and he didn’t do that. Although he said he enrolled, he had not participated in it. At the further hearing in April, the matter was adjourned in order to allow the father to participate in a course. At this stage, he was self-represented. Those orders were made by the Court, and they did not purport to be by consent. It appears that there was some confusion on the part of the father because he thought they were not validly made orders because he did not agree to them.
In his affidavit of 10 October 2019, the father annexes a letter from Relationships Australia dated 21 May 2019. That letter was forwarded to the judge’s chambers prior to the hearing in October. That letter indicates that the father attended Relationships Australia for a standard assessment interview for entry into the MBCP. The letter sets out the criteria by which continuing participation in the program men are required to meet. These include:
(1) acknowledge that they have a problem or at least demonstrate a willingness to consider acknowledging their violent behaviour;
(2) show a desire, commitment and capacity to attend and participate in the entire program;
(3) show a willingness to keep their ex-partner, children and family safe or acknowledge their right to be and feel safe where men do not have contact.
There are other criteria, but they are not relevant for the purposes of this matter.
The letter concludes that:
Where a man does not meet these criteria, it is not appropriate for him to participate in the MBCP.
Based on criteria 1, 2 & 3, Mr Basile has been assessed as inappropriate for the MBCP. Mr Basile is welcome to access our services in the future, and we would be happy to reassess his eligibility at that time.
The father, in his evidence before the Court on 14 October 2019, commented that one of the courses that he had been referred to in the orders did not exist. He further stated that he did not understand why he had not met the criteria. In response to a question from the bench following final submissions, he stated that he would not be enrolling in a MBCP.
As has been pointed out a number of times, this is the fourth hearing of this matter. Each of the adjournments have been made in order to allow either the applicant to explain himself or for his behaviour to be explained by an independent person. The adjournments on the second and third occasions were specifically to enable the father to participate in the MBCP so that he could be in a position to spend more time, and particularly unsupervised time, with the children. He simply has not taken up the opportunities that have been given to him.
The father’s evidence
At the hearing which commenced on 14 October 2019, the father relied upon his affidavits sworn 10 October 2019, 2 November 2018, 10 August 2017, 24 February 2017, and 29 August 2016.
He also sought to rely on his affidavit of 1 April 2019 which annexed the supervisor’s reports available at that time.
I have had regard to the above affidavit material.
The father’s affidavit of 10 October 2019 includes the reports from the Family Contact Service supervisor who observed the time spent between the father and the children on 18 April 2019 and 25 May 2019.
One of the difficulties that the Court has had is that the reports from the supervisor are really quite positive in relation to the interaction between the father and his children. The children were delighted to see him. They had a lot of fun with him. He did not behave inappropriately or talk to them inappropriately. He was mindful of being on time and delivering the children back on time. As the supervisor observed, there was lots of fun and laughter between the father and the children. To quote:
The father was tactile and interacted with them when appropriate or observed them and encouraged them when he couldn’t participate. The children continue to appear very comfortable with their father, approaching him to meet the wants and needs, for a cuddle or just to sit with him and talk. He is responsive and tends to them in a timely manner. [X] asked a number of times, how long they had left and seemed disappointed with the answer as the time to go grew closer.
In the summary of that report, the supervisor noted that it was obvious that the children and the father love each other, have a good bond and seemed comfortable with one another. The supervisor further noted that the father displayed genuine interest in the children’s wellbeing and all the children complained about having to leave, expressly disappointed that they had such a short time to spend together.
This, on any measure, is clearly a very positive report in relation to the way that the father was able to interact with his children on those occasions. Similarly, the other reports (such as from the supervisors of supervised time) which have been filed in this proceeding, all indicate the positive relationship that the father demonstrated between himself and the children.
In his material, the father also raised concerns regarding the children’s schooling. Annexed to his affidavit filed 10 October 2019 were the attendance records for each of the children, indicating that they have been regularly late for school, albeit, generally by five to 10 minutes. The children have also been absent from school, although that does not feature in the same way that that lateness for school does.
The father denies the allegations of violence which have been made by the mother. In particular, the mother has reported that the children were shown a gun by the father. The father’s explanation is that the mother asked the children to show a toy gun which had been purchased for the children.
The father also reports the positive cooperation between the parents in relation to arrangements for the children and that is contained in the text messages which are attached to his affidavit of 10 October 2019.
From the father’s perspective, his view is that the mother exaggerates or makes up the allegations of family violence.
When the father is seen with the children by independent supervisors, his conduct is not the subject of any criticism, rather, it is the subject of praise in the way that he conducts himself. He claims that he does not own guns and strongly denies those allegations and effectively puts that he has been stitched up for a whole series of highly exaggerated allegations which are simply untrue.
The father denies allegations put by the mother in her most recent affidavit of 8 October 2019. By that affidavit, she complains about him swearing in front of the children. She says that she witnessed this on Skype on 29 April 2019. In that affidavit, she makes reference that in September 2019, the children reported the father asked [Z] ‘so when did L touch you on the willy?’. “L” is the mother’s father.
The father denies that allegation. The mother says that this was raised by the children in the car returning from a visit with the father. She makes reference to the father making frequent insulting comments about her weight and the weight of other people in her family or associates of hers. The mother also raises a concern about whether the father has access to guns and does say that the father showed the boys a gun.
The Court is not in a position to know whether there was a real gun. Whilst it appears that there was a gun in the photograph, the father says it was a toy gun. Shortly after the matters were raised with the police, the police visited the father’s house and there is no suggestion being made by the solicitor for the wife that the father has been arrested in relation to having a gun or any gun that has been confiscated. There is simply no evidence to support a finding that there was, in fact, a gun at the house and it is certainly not being put.
The mother, in relation to the schooling did express that she was disappointed in that record of lateness but explained that she had a fair bit on her hands, in particular, trying to deal with [Y]’s condition.
The mother’s evidence
The mother relied upon, essentially, all the affidavits she has filed in the proceeding. The last affidavit that she filed was an affidavit of 8 October 2019.
The major feature of the mother’s evidence, in my view, is the evidence that she gives about the dysregulation of the children upon their return from visiting with their father. What she describes sounds very much like what the Family Report writer described in the initial Family Report in relation to the children that, even whilst the father might not be doing anything particularly overt, that they come back from him upset, dysregulated or out of control.
I am not a psychologist and I do rely on the Family Report writer for assistance in this matter where there is such a stark contrast between the stories of each of the parties and you have got this difficulty with the children. I think, to a great extent, the difficulties faced by the children is explained at [94] of the Family Report writer’s report:
Ms Wen's stunned response to the children's dysregulated state after spending time with their father highlighted a further vulnerability for the children in that while they are in this emotional whirlpool they require an attuned parental response to assist them to regulate their behaviour and mood. Ms Wen appears unable to recognise that potentially some of the anger being displayed towards her is due to their perception that she is preventing them from seeing their father and perceives that the behaviour is fundamentally as a result of his behaviour during time. This assessment would suggest that while the children are craving a relationship with their father they present with underlying anxiety about their safety in his care, which is then expressed violently towards their mother.
The above may be simply the Report Writer’s attempt to explain what is going on in the minds of these children. It is not a straightforward explanation but, in my view, it is a rational explanation for the way the children are behaving.
Consideration
The father is seeking joint parental responsibility. The mother is seeking sole parental responsibility. The ICL is of the view that there should be sole parental responsibility given to the mother.
Equal Shared Parental Responsibility
Section 61DA(1) and (2) of the Act provide that:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
This is a case where the presumption of equal shared parental responsibility is displaced by the particular circumstances which I have attempted to outline above.
In this case, there has been allegations of family violence. Whilst not making particular findings about all the allegations, I think the allegations are made out that the father has engaged in family violence in the sense of the abusive comments that he has made in relation to the mother in front of the children.
The particular needs of these children are reasonably high, particularly given [Y]’s medical condition. The conflict between the parties is so great that, effectively, a co-parenting arrangement cannot work in the interests of the children, and this extends to basic matters which are important to the children. In my view, the orders proposed by the mother and the ICL in relation to parental responsibility are appropriate and in the interests of the children.
Time spent with the father
It is not appropriate for the Court to make the orders sought by the father that the children spend equal time with the mother and the father. The Court is required, in making parenting orders, to have regard to the best interests of the children as paramount consideration. Because I am not ordering shared parental responsibility, I am not required to consider whether the children spending equal time with each of the parents would be in the best interests of the children. Having said that, I do not think that equal spend-time is in the best interests of the children as I do not think it is reasonably practicable given the relationship between the parents and their inability to co-parent effectively.
s 60CC(2) – Primary Considerations
s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both the children’s parents
s 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I do not think the father has any proper insight into the needs of the children, in particular [Y]. The fact that the father continues to see [Y]’s condition as a manifestation of the mother’s abuse indicates that the father fails to properly recognise the significant and ongoing needs of [Y]. However, it is important that the father does spend time with the children.
The time suggested by the father – the equal shared arrangement –fails to adequately protect the children from psychological or physical harm. The children have reported to DHHS officers their concerns in relation to the father’s behaviour; and such harm to the children was made manifestly plain by the terms of the Family Report.
s 60CC(3) – additional considerations
s 60CC(3)(a) – any views expressed by the children and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
Each of the children have expressed that they like to spend time with their father. Whilst the Court is mindful of that, the Court is also mindful of the need to protect the children from harm.
s 60CC(3)(b) – the nature of the relationship of the children with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child)
Clearly the children have a close relationship with their mother and her family. In this regard, I have received evidence from the mother’s affidavits of the relationships and support that she has and the connection the children have with her family. This includes her brother who has supported her in Court throughout this matter, and her father. She also has the support of a sister who has filed an affidavit in the proceeding.
As noted in the report from the supervisor, the children clearly love their father and enjoy spending time with him when he is not behaving in an abusive way or denigrating the mother in their presence.
s 60CC(3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The father has, by his attitude towards [Y]’s diagnosis and medical treatment, has not been in a position to participate fully in that process because he fundamentally disputes the need for the treatment. He has been assiduous in seeking to put his position in relation to spending time with the children, and I accept that he is very sincere in that regard.
s 60CC(3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father has given evidence that he regularly buys gifts, clothing or other things that are needed by the children. He does not pay child support. There is no suggestion that the mother is not providing and maintaining the children, although there are issues with her capacity to get them to school on time. Hopefully she will put in measures to improve that. I accept that taking the children to school is very difficult for her, but she must try and do something to assist her in that regard as the failure for the children to attend school is highly problematic.
s 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders that are proposed by the mother, and after a lot of thought on this and with some considerable hesitation, are in the best interests of the child. I think there are elements where the mother has exaggerated the conduct of the father; however, I accept her evidence, that these children are very upset and dysregulated when they are coming back from visiting the father. Although, apparently, that has been less of a problem in recent times, the time that is proposed (being once every four weeks for six hours), is not a significant change from what has been occurring in the last three years and allows the father to effectively demonstrate his capacity to be a good parent.
s 60CC(3)(e) the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is no particular difficulty or expense with the children spending time with the father in relation to section 60CC(3)(e).
s 60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs
The mother does have capacity, although that capacity is stretched. She does have support from her family to assist her.
The father has quite a limited capacity to fully appreciate the needs of these children. In that regard, I am supported by the report of Mr H and the Family Report writer. The father needs assistance in order to understand the needs of his children and the impact of his behaviour. As I have stated, he has on at least four occasions resolutely failed to get that assistance. Until he does, his time will not increase.
s 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
With respect to s 60CC(3)(i), I have already referred to those matters above.
s 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the children’s family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
There is a family violence order, and I understand that there is an intervention order which remains in place for a further two years which covers the mother and the children. That was the subject of a contested hearing and that, notwithstanding the opposition, the magistrate determined that was an appropriate order to remain in place. I have got no material before me in relation to the evidence that was submitted into the proceeding or findings that the Court made in that proceeding.
Other subsections of section 60CC(3):
There is no particular feature of the maturity, sex or lifestyle background of either of the parents in regards to subsection (g). Subsection (h) is not relevant.
The father’s criticism of the ICL
The father has made criticisms of the ICL in this case. He has complained that there has been a different advocate or counsellor each time the matter had been before the Court and that no one from the ICL’s office had spoken with the children.
I can understand the father’s frustration in relation to that, and it may have been of assistance if the ICL had spoken to the children or spoken to somebody from the school in relation to the concerns raised by the children’s attendance at the school. In addition, having some independent insight into how the children were going at school and coping may have been a benefit to the Court.
That said, there is an awful lot of information which has been contained in the 11F report and the Family Report. There is a danger in the children being exposed to adults asking questions about the case when there is already an awful lot of information has been created. Thus, whilst criticisms have been made of the ICL – and I raise it because he specifically made those criticisms – I do not accept that there has been any failure to deal with the matter appropriately by the ICL.
Conclusion
The evidence in this case, including evidence contained in reports prepared by DHHS, indicate that the father has substantial difficulties in understanding his behaviour or the impact of his behaviour and the expression of his views on children and the mother. It is imperative that the father enrol in a MBCP and demonstrate that he is able to act in the best interests of the children,
For those reasons, I make orders as set out above.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 14 November 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
-
Remedies
-
Jurisdiction
0
0
2