Bickley and Wallace

[2011] FamCA 955

FAMILY COURT OF AUSTRALIA

BICKLEY & WALLACE	[2011] FamCA 955
FAMILY LAW – CHILDREN – Where the Father seeks equal shared care – Where Father has a history of contravention of domestic violence orders – Where Father unemployed – Family consultant found diminished prospects of success in shared parenting where parties cannot agree – Father's application in a case dismissed.
APPLICANT:		Mr Bickley

RESPONDENT: Ms Wallace

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley, Solicitor

FILE NUMBER: BRC 6235 of 2008

DATE DELIVERED: 9 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 8 to 9 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

SOLICITOR FOR THE RESPONDENT:	Mr Muir, Solicitor of Eric Muir Lawyers appearing for the Respondent Mother
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Zande of Counsel appearing for the Independent Children’s Lawyer
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Dooley Solicitors

Orders

IT IS ORDERED THAT:

1. The Father’s Application in a Case filed 25 May 2011 be dismissed and the matter be removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Bickley & Wallace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6235 of 2008

Mr Bickley

Applicant

And

Ms Wallace

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Mr Bickley for parenting orders in relation to three children of his relationship with the respondent, Ms Wallace, those children being B, born in 1998, C, born in 1999, D, born in 2002.  The order the Father seeks presently is that the children reside equally with both parents, and that the father and mother have joint responsibility.  I refer to and incorporate these, my reasons for judgment, his lengthy orders as sought by himself, which are exhibited to and included in the initiating application, dated 14 July 2010.

2. Since that time, the matter has been before the Court, and an order was made in the Federal Magistrates Court by Federal Magistrates Coates limiting the father’s contact, which varied quite considerably an order made some years before, in which the father was to have alternate weekend – generalising – alternate weekend contact.  Since the Federal Magistrates Court order (supra), he has enjoyed himself, as he says, for six hours, and that, in itself, he says, is insufficient for him to develop a proper, warm, and loving relationship between himself and his children.  It is insufficient for him to teach them the necessary things of life, and he says that the only way that he is able to do that is to have equal shared time.

3. The mother opposes such application, and indicates that such application should be dismissed.  The only orders, therefore, before me, and I have asked Mr Bickley, he being unrepresented, whether, in fact, the only order he seeks is an order that the children reside with him on an equal shared basis, and he says yes;  therefore, I have to determine whether he has persuaded me to make an order in accordance with his application.  The mother seeks an order, as I have said, that such application be dismissed.  If that is the case, it would mean, I would have thought, that the previous order of the Court of

   
   

   Federal Magistrates Coates of last year would once again come into force and effect, and the only order for contact would be that.  It had concerned me particularly that that was the order that Mr Bickley sought, both Dr E– not to as great extent as Mr F was concerned – is of the view that that would not advance the welfare of the children.

4. Even the father concedes that should he fail in his application, he will walk away, he will probably leave Australia, that he will definitely not be in Region G where he is residing at present, and that he concedes in cross-examination that it would be devastating for the children not to see him again; however, he perseveres with this application.  He has put before me, three or four affidavits.  I have read them all on a couple of occasions.  In particular, I refer, insofar as this equal contact is concerned, to paragraph 14 of his affidavit of 14 July 2010, which is the affidavit in support of the initiating application, in which he says:

   I am seeking equal access to my children.  It is my mortal –

   I am sure he means “moral” –

   ethical, and now, since 2006, my legal right to have equal access to my children.

   …         

5. It goes on.  He does not have a right to have equal access to the children.  I have pointed that out to him.  The onus is upon this Court to consider equal time with the children, and I have made it quite clear to him, and I will emphasise it once again, that as far as I am concerned, parents in my court do not have rights; they have duties.  They have duty to their children, and some of those duties have become all too unfortunately paramount in this case.  He has put before me in what I consider a particularly thin evidence – notwithstanding the fact that he has put, three or four affidavits before me – a case that he says, and I – this is the inference that I get, that he cannot enjoy his children if, in fact, he does not get equal shared time, because he will have to pay child support and that will put him in an impecunious position in which he says he was when he was employed.

6. It appears his prima facie case is about money.  He has not been employed for three years.  He lost his job as a result of being convicted, he said for the fourth time, on DVOs.  I must touch upon that; in 2002, when the parties were still co-habiting, a DVO was brought against him in which it was alleged that he assaulted the wife.  Exhibited to the wife’s affidavit of 4 August 2011 is a transcript of that DVO.  To précis it, it appears as though, according to evidence of the wife, she was struck with such force and effect that it caused her to bleed from the mouth.

7. She was, at the relevant time, holding a four-month old child.  He dismisses this DVO, saying that there was no evidence that he overly slapped her, and it was not a really big slap, but he slapped her.  In his own evidence in that matter, he indicates that he slapped her twice, and I refer to – excuse me a minute.  In cross-examination – of course, I cannot put my hands on it at this stage.  It was put to him at cross-examination that he slapped her hard, and at page 33 he said:

   … she started the violence.  I slapped her.  I didn’t even slap her hard.  I don’t deserve this.

8. There are other matters which concern me in this transcript.  That is the first of seven domestic violence orders which it is alleged that he has contravened.  He cannot be heard to say that there was no, or no sufficient, evidence on that application, which, accepted by the magistrate, would not lead to a DVO.  There was more than sufficient, if accepted, and it was by the magistrate.  Not only was he convicted then, he has been convicted on six further occasions, eventually going to gaol, or to the remand section, for a period of 19 days.

9. He has, in fact, received fines ranging from $1800 to something less than that.  He has not only been charged with breach of domestic violence orders; he has also been charged with assault, see the police record, which is exhibit 2, and I refer to that exhibit.  I would have preferred, I must say in passing, to have had the briefing notes as well, to be able to ascertain what the other grounds and facts were concerning, but I do not have them.  His police record commences in 1995, when he was charged with assault occasioning bodily harm.

10. In 2002, he was charged with possessing dangerous drugs.  A breach of the domestic violence in 2003, another in 2003; one was January, one was February.  There was one in 2004, 2007, and 2008.  He was put on probation, breached it, and this is the one, as I understand, he was sent to gaol for for 19 days.  This is the type of person who says he is very placid and is not the type who would, in any way, be able to lose control of himself to such an extent.  He has been warned off from the children’s school.  He concedes he has been warned off from the contact centre. 

11. The contact centre, according to a letter which has been put before me and is an exhibit from the centre, he has been found as “rude, loud, and confrontational” (see the letter of the contact centre, 3 July 2009, and a subsequent letter of the same people, 17 September) and they threatened that should he carry on the way he had done that they will call the police immediately and endeavour to prosecute him; I refer to those letters and incorporate them.  This is not the innocent type of man that is being put before me.

12. Yesterday I saw an exhibit of uncontrollable temper where he carried on, I thought, in a most amazing manner.  This is the type of person he is putting up as a person as a role model who is fully entitled to consider the welfare of his children.  He cannot control himself;  how can he control his children?  That is the question I am putting to him.  The attitude of himself to me and to everybody else in this Court yesterday was disgusting.  This is a person who says that he is able to adequately look after the children for a period of seven days. 

13. This is a person who has not worked for three years and complains bitterly about the fact that he has to pay child support.  He is paying, as I understand, $13.50 per fortnight as and by way of child support.  He says the reason why his wife is making his contact difficult, not because his attitude is as it shows, it is because she is getting some financial gain out of it.  The financial gain he says, is that she is getting child support of $13.50 for the last three years, the fact that she is living in his house with her present partner and swimming in his swimming pool.  He was the one who gave the house to her some years ago and he indicates that that, in itself, shows that she is mindful of making some financial gain out of this.

14. Further, he says, he is unable to look after his children unless he has

    
    

    50 per cent because anything less than 35 per cent means that he will not get the benefits from the social security.  He has set out in an affidavit, and I refer to the affidavit of 6 September 2010, scenarios which he says shows how impossible it would be to maintain the children in various ways.  He refers to and relies, as he said, upon scenario 2, which is headed Unenjoyed Children Equal Time.  He sets out there in that it is barely affordable but should he get the benefits that he is entitled to, he will have $950 per fortnight to expend, and he sets out the figures there.  Out of that $600 will be rent.  He has $350 per fortnight for food, transport and utilities.  He says that is very affordable – once again money.

15. At this stage he is unemployed and it does not appear to me to be any light at the end of the tunnel for him getting employment, he has failed to take into consideration the fact that he has other outgoings which are required of him which include SPERS of $20 per week.  These are brought about as a result of his having to pay off the fines which he has incurred as a result of the disobedience, the breaching of the DVOs.  He has also, as he says, outgoings in relation to – and this is if he is employed – HECS of some $140 per week, super – that is if he is employed – he has rent, child support payments he refers to, CBA Credit Card, Westpac Credit Card – I am referring to page 5 of 7 of the aforesaid affidavit – there is no way, on the evidence before me, that even if he had the children for seven days per fortnight he could afford to maintain them.

16. What does he offer?  He offers, to this Court, the fact that at present he does not have adequate accommodation for the children.  He says that but he says he will find it and that is why he wants the order to be delayed for a period of two months to enable him to get organised.  He is unable, at this stage, to say whether he would be able to adequately maintain the children.  I find that he cannot, on the evidence before me.  There is no way he could do it.  He has been warned off the school to which they are attending, as I understand.  How is he going to get them to school other than by putting them in a bus?  The youngest child is very, very young.

17. However, that is the general feeling and the attitude I have towards this gentleman.  I found him a most difficult person, one of the most difficult persons I have ever seen in 35 years on this bench.  He has an uncontrollable temper and he is starting to show it again now.

18. However, let us look at the experts.  We have two experts who considered this matter.  One is Mr F, a very experienced Family Consultant who has given evidence in many cases before this Court.  We have evidence of

    
    

    Dr E who practises as a psychiatrist, and the applicant may agree with me on that, also a person who has had vast experience in this field.

19. Mr F was requested to consider whether in fact shared access time, seven days, would be to the advantage of the children.  He says generally, if the parents are unable to agree, there is very little chance of shared access being successful for the children.  With that I totally agree with him.  What do we have here?  Is there any chance of there being an equitable and easy relationship?  None.

20. The father has called the wife a psychopath; he denies saying that, but he has said other words to Mr F wherein he has little or no respect for her.  He says she had told the children that she hates him and there is no evidence of that except from what he told us in the witness box because he said it only came about, I think, last Tuesday, as a result of what his daughter told him.

21. He had the opportunity of cross-examination of the mother and putting his case to her.  He failed to do that.  He did not evidence a lot of the statements that he has made from the bar table before the Court and I must confess that I feel that he does not understand that the mother’s evidence has now come before the Court totally uncontradicted by his not giving her the opportunity of denying allegations which were not contained in his evidence.

22. I do not believe that there is one chance of this being satisfactory for the children, this shared access.  I think it is a tragedy.  I think the children deserve the right to know their father but I am more than satisfied in this case that their welfare would not be advanced by them having shared access time between the parties.  In those circumstances I have no other option open but to dismiss the application. 

23. Insofar as forms of contact are concerned, it has fallen from the independent children’s lawyer that they would have no objection to an order being made in accordance with Mr F but in fact modified.  They say Mr F has said that he considers the children should have contact with their father on each alternate weekend on Saturday after sporting activities until Sunday.  The independent children’s lawyer’s counsel, on instructions, has suggested that they should have after school on Friday until late on Sunday.  Since that matter really is not before me, that is a matter for the respondent and applicant to determine.  If they want to put a consent order before me to that extent I would make the order.  I believe that the children deserve at least that.

24. I am more than satisfied that the conduct of the father in his continuous domestic violence towards the mother, his failure in my view, notwithstanding his complaints that he is unable to do so, adequately maintain the children.  His insistence upon receiving half access so that he can make a valid claim and an economical claim against the social security in order, as he says, to maintain the children.  His general attitude towards the court, towards people in the court and as I find towards the mother and her present husband, is such that his making decisions in relation to the long time issues of the children are somewhat suspect. 

25. I make it quite clear that the matters which have occurred between the father and the mother since separation and in particular to his seven DVOs, are sufficient in my mind to discharge any onus that may be upon the court to dismiss shared parental responsibility.  Equally, I am satisfied that such evidence shows a consummate disregard, not only for the court and the wife, but also for the welfare of the children and he is not a role model up to which the children should look.

26. I emphasise that the only application before me is as I have indicated before, an application for equal shared parenting.  I have put it to the father on at least one occasion and he insists that that is the only application that he wishes the court to determine.  I have determined it and as I have indicated before, the application is dismissed.

27. I consider that the general reasons set out hereinbefore are more than adequate to indicate my concerns at s 60CC and the other matters which are relevant for the court’s consideration under the Act.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 9 December 2011.

Associate: 

Date:  9 December 2011