Blesing & Blesing (No 2)
[2022] FedCFamC1F 1048
Federal Circuit and Family Court of Australia
(DIVISION 1)
Blesing & Blesing (No 2) [2022] FedCFamC1F 1048
File number: CAC 2402 of 2021 Judgment of: GILL J Date of judgment: 22 December 2022 Catchwords:
FAMILY LAW – PARENTING – Interim order – Where father has chosen not to engage further in the court process, and appears to not recognise the court’s authority – Matter proceeded on an undefended basis – Consideration of single expert evidence indicating father’s possible mental health issues – Where father’s attitude and conduct renders cooperative decision making counter to the best interests of the children –Mother to hold sole parental responsibility – Matter to be brought to trial.
Legislation:
Family Law Act 1975 (Cth) s 60B, 60CC, 61C, 61DA, 65DAC
Cases cited: Blesing & Blesing [2021] FedCFamC1F 230 Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 21 December 2022 Place: Canberra Solicitor for the Applicant: Ms Simpson, Dobinson Davey Clifford Simpson Solicitor for the Respondent: Litigant in person (did not participate) Solicitor for the Independent Children's Lawyer: Ms McGregor, McGregor Family Law ORDERS
CAC 2402 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BLESING
Applicant
AND: MR BLESING
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
22 DECEMBER 2022
THE COURT ORDERS THAT UNTIL FURTHER ORDER THAT:
1.The mother, Ms Blesing, has sole parental responsibility for the children, W (born 2006), X (born 2009), Y (born 2011) and Z (born 2015) (“the children”).
2.Each parent is at liberty to obtain copies of school reports, newsletters, school photographs and other documents and school records at their own cost.
3.Each parent is permitted to provide a copy of these Orders to any of the children’s schools.
4.The parties shall inform each other by telephone in the case of serious injury, illness or other emergency involving any of the children and by text message in all other cases, as soon as practicable of any illness, injury or accident involving any of the children and will inform the other parent within 48 hours of any attendances upon any health professional and of the treating practitioner’s details.
5.The parties will inform the other party of any change to the children’s medical practice or details of other treating medical professionals within five business days of any change.
6.Both parties are at liberty to obtain copies of the children’s medical and dental records at their own costs.
7.The proceedings are otherwise listed before a Registrar on a date to be notified for the purpose of giving directions to prepare the matter for final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blesing & Blesing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
introduction
This application has been brought by the mother, Ms Blesing, concerning the interim allocation of parental responsibility for the four children of the parties’ relationship, W (16 years old), X (13 years old), Y (11 years old) and Z (7 years old).
At present, there is no order in relation to parental responsibility, and so such is held jointly between the mother and respondent father, Mr Blesing.
The mother seeks that, on an interim basis, parental responsibility now be allocated solely to her, in an application that is supported by the Independent Children’s Lawyer (“the ICL”).
The father has chosen not to respond to the application, nor to attend the proceedings, despite being aware of them. He has communicated to the mother’s solicitor in terms that indicate that he intends to have no further part in the proceedings, and so these proceedings are heard on an undefended basis.
material relied upon
Applicant Mother
As per the mother’s Case Outline Document filed 19 December 2022, she relies on the following:
(1)Affidavit of Ms K filed 21 December 2022;
(2)Application in a proceeding filed 8 December 2022;
(3)Mother’s affidavit filed 8 December 2022;
(4)Mother’s affidavit filed 17 January 2022 at paragraphs 6, 8, 10, 12, 14, 19, 29, 30, 32, 34, 37, 41, 42, 43, 44, 45, 46, 47, 48, 52, 55, 68, 70, 72, 73, 77, 103; and
(5)Dr C’s affidavit filed 1 July 2022.
Independent Children’s Lawyer
As per the ICL’s Case Outline Document filed 16 December 2022, the ICL relies on the following:
(1)Application in a proceeding filed 8 December 2022; and
(2)Mother’s affidavit filed 8 December 2022.
Principles
The best interests of the children form the paramount consideration in determining the allocation of parental responsibility. Those best interests are determined in the context of the Objects and Principles as set out at s 60B of the Family Law Act 1975 (Cth) (“the Act”), and on assessment of those of the s 60CC considerations that are significance in the particular case.
The starting point for consideration is the presumption that an order for equally shared parental responsibility is in the best interests of the children, as provided for by s 61DA of the Act. It is a presumption that can be rendered inapplicable, or not applied in interim proceedings, or rebutted. This case was run on the basis that it was rebutted.
A consequence of an order for equally shared parental responsibility is, as set out at s 65DAC that where a decision is to be made about a major long-term issue, it must be made jointly, and the holders of that parental responsibility must both consult about and make a genuine effort to come to a joint decision about the matter.
At present there is no order in relation to parental responsibility. The consequence, as set out at s 61C of the Act is that each of the parents hold parental responsibility, without the requirements of s 65DAC of the Act. This permits either parent to make major long-term decisions without regard to the other parent, with potentially deleterious consequences to the child the subject of the decision where the parents are unable or unwilling to take a common approach to the issue.
It should also be acknowledged that, as this application is made in an interim context, the court should be cautious of, and avoid being drawn into contentious factual disputes, seeking to rely on matters that are corroborated or objectively verifiable where possible, while paying due regard to risks and the potential consequences depending how those risks are responded to in the orders made.
The evidence
The mother relied upon three broad areas of the evidence.
The first was the report filed by the single expert, Dr C, in July 2022. In that report, Dr C identified issues flowing from an assessment that the father potentially has mental health issues. She considered that he has “extreme overvalued beliefs” pertaining to religious and conspiracy based issues.[1] Dr C formed the view that the father is best described as having a personality disorder.[2] In arriving at such a view Dr C conceded that she was not required as part of her report to prepare a psychological evaluation of the father. Further, the mother conceded that a psychological assessment was conducted upon the father by Ms L, and that although it was not before me in this application, it differed from the conclusion by Dr C. I would note that Dr C rejected the notion that the father was delusional.
[1] Family Report dated 24 June 2022, paragraph 177.
[2] Family Report dated 24 June 2022, paragraph 180.
Dr C considered that absent “extraordinary reason” the best interests of the children point to sharing of parental responsibility, but that the decision as to the allocation of parental responsibility should be tied to assessment of risk conducted within the final trial that considers the father’s mental health.[3]
[3] Family Report dated 24 June 2022, paragraph 173.
Dr C also considered that if, at final hearing, the father’s mental health and personality issues point to significant risk for the children, then “it would be unreasonable to expect Ms Blesing to engage in any form of transactional co-parenting, and that doing so is unlikely to be in the interests of the children.”[4]
[4] Family Report dated 24 June 2022, paragraph 201.
In these interim proceedings, I am not in a position to conduct any cogent assessment of the father’s mental health, or of the significance of views held by the father. Some caution should be exercised in reliance upon Dr C’s conclusion on this aspect in the interim context of this application. However one aspect of importance flowing from Dr C’s report is the need for psychological and counselling support for the children.
The second aspect of the evidence relied upon by the mother was as to material previously relied upon in interim proceedings that indicated strong limitations in the parties’ capacity to cooperate, flowing from strongly held views by the father. The subject matter of such was identified in the previous judgment as follows:
[25] The key issues as to risk identified by the mother flow from matters voiced by the father to the mother the children, and to other persons. Roughly described, the subject matter variously encompassed religious themes involving the end of the world, interaction between government and believers, religious connotations of COVID-19, the vaccine and interactions with people who have had the vaccines, COVID-19 and the vaccines more generally and their interaction with various conspiracy theories, conspiracy theories involving government and the Catholic Church, a flat earth theory, implications of attendances at various schools, and the poisoning of the water supply. This is not intended to be an exhaustive description. The mother describes that the father has pursued these themes in a forceful and unrelenting manner both toward her and the children. In consequence of the father’s various beliefs he opposes vaccination, withdrew the children from their schools and sought to home school the children.[5]
[5] Blesing & Blesing [2021] FedCFamC1F 230.
It may be observed that in those prior proceedings the father accepted that some of these matters reflect issues that he previously pursued, that he conceded that he had pursued some of these matters further than he should have, and that he had gone too far in previously removing the children from school.
In the prior proceedings there was also strong indication of the parties’ inability to agree to secure psychological support for the children.
The third aspect of the evidence relates to interactions with the father that post-date Dr C’s report. It is these matters that are of particular significance. They reveal an inability on the part of the parties to resolve long term issues relating to medical treatment for the children or schooling.
Particular examples relate to orthodontic work for W, a tooth extraction for Z, and to future schooling arrangements for Y and for Z.
The mother seeks that Y enter high school at a local Catholic school. Whilst the father opposes, generally, the children’s attendance at a Catholic school, he has said to the mother that he will not oppose such for Y if it was what Y wants. He maintains to the mother that it is not. He trenchantly opposes Z’s proposed attendance next year at a Catholic school. These are matters that the parties appear unable to resolve without the intervention of the court.
Of particular importance is further evidence led by the mother of communications from the father. In a series of emails from about late 2022, the father has communicated with the mother’s lawyer in terms that indicate that he does not accept the authority of the court, that the children will be acting in accordance with their wishes where the parents cannot agree, and that the mother is purchasing orders from the court.
This should not be considered to be a comprehensive examination of the issues raised by the father’s correspondence.
Discussion
There are limitations in the factual assessment able to be conducted by the court at this interim stage. However, the context of the consideration of the factual contentions is that the father has chosen not to participate and so the matter is conducted on an undefended basis.
The central issue relates to the parent’s capacity to engage in decision making in a manner that provides for the emotional well-being of the children.
What may be seen from the evidence identified by the mother, including the matters contained in Dr C’s report is an ongoing history of the father stridently pursuing issues in a manner unlikely to be conducive to the parties achieving a common mind about important issues for the children. To this may be added the father’s more recent communications as outlined above. The significance of those matters is that they point to an utter breakdown in the father’s capacity to engage in cooperative decision making with the mother, and to a pattern of interaction that may be taken to render attempts at such by the mother both futile and difficult.
Further, the father’s comments indicate a strong potential for the father to determine matters independently of both the mother and the court, and to make decisions for the children based on idiosyncratic views of the basis for making long term decisions for the children (that absent agreement the children will determine them), and of the court when, given the dispute before the court, the court is required to resolve issues for the children’s benefit.
The father’s approach to these matters indicates that any sharing of parental responsibility is, in the interim, contrary to the best interests of the children. Further, the father’s approach indicates that decision making should not be vested in him.
Particularly given that the children are predominantly in the care of the mother, the above matters mean that the mother’s application should be acceded to.
Conclusion
Orders will be made in accordance with those sought by the mother.
Orders will be repeated providing for the parents to be at liberty to obtain information from schools and medical practitioners for the children, such a matter not being in contest on the part of the mother or the ICL.
Orders will be made to prepare the matter for trial.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 22 December 2022
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