Cardwell & Cardwell
[2023] FedCFamC2F 93
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cardwell & Cardwell [2023] FedCFamC2F 93
File number(s): NCC 4248 of 2020 Judgment of: JUDGE MYERS Date of judgment: 27 January 2023 Catchwords: FAMILY LAW – Family Law Act 1975 - parenting Legislation: Family Law Act 1975 (Cth), ss 60CC, 60CC(3)(g) , 68B
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 114
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Keane [2021] FamCAFC 1
Re Andrew (1996) FLC 92-692
Sedgley (1995) 19 Fam LR 363
Division: Division 2 Family Law Number of paragraphs: 81 Date of last submissions: 10 November 2022 Date of hearing: 30-31 August 2022, 8 September 2022 Counsel for the Applicant: Ms Reid Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Mr Kelly Solicitor for the Respondent: Wm Lloyd & Associates Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
NCC 4248 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARDWELL
Applicant
AND: MS CARDWELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MYERS
DATE OF ORDER:
27 JANUARY 2023
THE COURT ORDERS THAT:
1.By Consent, the Mother have sole parental responsibility for the children W born in 2019, X born in 2012, Y born in 2014 and Z born in 2016.
2.By Consent, that the child X spend time with the Father as agreed between the parties, but at the Mother’s sole discretion, with the Mother having taken into account X’s views.
3.That the children X born 2012, Y born 2014, Z born 2016 and W born 2019 live with the Mother.
4.That the children Y, Z and W spend time with Father every first Saturday in the month from 10:00am to 4:00pm, supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father (noting that the first Saturday of each month would include the Saturday of the Father’s Day weekend).
5.That the father pay the cost of the supervision.
6.That the father be permitted to send cards, gifts and letters to any or all of the said children not more than three (3) times in each calendar year.
7.That within fourteen (14) days the mother provide to the father a postal address to which such cards, gifts and letters can be sent (either a residential address or a Post Office Box number).
8.That the mother do all things to attend obtain a referral to, and obtain a paediatric treatment and assessment for, the child Z.
9.That the mother do all things to have the children Y and Z assessed for speech therapy, and do all things recommended by any speech therapist.
10.That the parties communicate (in relation to parenting matters only) as follows:
(a)If the matter requires urgent notice or resolution, via text message;
(b)Otherwise, via the Divvito App or OurFamilyWizard App.
11.That both parties are to ensure they keep the other advised of their mobile number and email address and shall advise the other of any change within forty-eight (48) hours of such change occurring.
12.In the event the children or one of them suffers an illness or medical emergency that requires urgent medical attention or hospitalisation whilst in either parent’s care, that parent will as soon as practicable, advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis.
13.That each parent be restrained by injunction from:
(a)denigrating the other parent, or any other member of their household or family in the presence or hearing of the children;
(b)communicating with the other parent in any way that is other than respectful and civil;
(c)discussing these proceedings with the children or in the presence of the any of them;
(d)showing the children any document(s) connected with these proceedings; and
(e)physically disciplining any of the children.
14.This Order operates as the authority to any educational, medical or extra-curricular provider to the children, to provide any information to each parent that he or she seeks in relation to the care, welfare and development of the children.
15.For the purpose of these orders, unless otherwise agreed, changeovers shall be at McDonald’s B Street, Suburb C, NSW.
16.That the mother shall be at liberty to change each child’s surname as follows:
(a)So that forthwith, the child, X Cardwell, be known as, X D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as X Cardwell, now be registered as X D;
(b)So that forthwith, the child Y Cardwell, be known as Y D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as Y, now be registered as Y D;
(c)So that forthwith the child, Z Cardwell, be known as Z D, and the mother shall and is hereby authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as Z Cardwell, now be registered as Z D;
(d)So that forthwith the child, W Cardwell, be known as, W D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as W Cardwell, now be registered as W D.
17.That pursuant to Section 68B of the Family Law Act 1975, the father shall be and is hereby restrained by way of injunction from going within 50 metres of any residence that the mother may reside at from time to time and/or any workplace that the mother may attend from time to time.
18.That pursuant to Section 68B of the Family Law Act 1975, the father shall be and is hereby restrained by way of injunction from going within 50 metres of any school and/or day care that each child or the children collectively attend or may attend from time to time.
19.That until further order, the mother and father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children, namely:
(a)X born in 2012;
(b)Y born in 2014;
(c)Z born in 2016; and
(d)W born in 2019
from the Commonwealth of Australia for a period of three (3) years;
AND IT IS REQUESTED THAT:
A.The Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
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 a pseudonym Cardwell & Cardwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MYERS J:
This is a final parenting decision in the matter of Cardwell concerning 4 children X, born in 2012, Y, born in 2014, Z, born in 2016 and W, born in 2019.
On 30 August 2022 the court made the following final orders by consent:
(1)By Consent:
(a)The Mother have sole parental responsibility for the children W born in 2019, X born in 2012 (“X”), Y born in 2014 and Z born in 2016.
(b)That X spend time with the Father as agreed between the parties, but at the Mother’s sole discretion, with the Mother having taken into account X’s views.
The court made the above orders during the course of the hearing where the issues were no longer in dispute. Essentially the only issue for the court to decide in these proceedings is whether the children should or should not spend time with the father and if so on what basis.
At the conclusion of the hearing the court invited the parties and the Independent Children’s Lawyer to consider their position and provide a final minute of orders sought. The parties’ position and that of the Independent Children’s Lawyer are as follows:
The Applicant father seeks the following orders:
(1)All previous parenting orders be discharged.
(2)That the mother have sole parental responsibility for the children:
(a)X, born in 2012
(b)Y, born in 2014
(c)Z, born in 2016
(d)W, born in 2019
Hereafter referred to as ‘the Children’
(3)The Children shall live with the mother.
(4)X shall spend time with the father according to her wishes.
(5)The other children shall spend time with the father as follows:
(a)For the first 8 weeks from the making of these orders;
(i)In Town E, from 10am until 4:00pm Saturday, every 3 weeks;
(b)Following from the 8 weeks as set out in Order 5.1;
(i)In Town E, from Saturday 10:00am until Sunday 10:00am, on the 4th weekend of every month;
(ii)In Sydney, from 10:00am until 4:00pm Saturday, on the second weekend of every month.
(6)For the purpose of Order 5, all time with the father shall be as follows:
(a)In Town E, under the joint or individual supervision of Ms F and Mr G, at their residence.
(b)In Sydney, under the supervision of a registered supervisor from H Services or equivalent organisation or business.
(7)That the children shall spend special occasions as follows:
(a)On mother’s day, with the mother, if not otherwise in the mother’s care on that day.
(b)On father’s day, with the father from 10am – 5pm, if not otherwise in the father’s care on that day.
(c)X is at liberty to choose whether to spend time with the father as set out in order 7.2.
(8)On the periods where the children are not in the care of the father, the Children shall together have 50 minutes face-time with the father on Monday, Tuesday and Friday between 6pm and 7pm.
(9)X is at liberty to choose whether to participate in phone time as set out in order 8.
(10)Changeover is to take place as follows:
(a)Where time is in Town E, at Shop J, K Street, Suburb L. Ms F or Mr G are to accompany the father and the children at all changeovers.
(b)Where time is in Sydney, at the mother’s residence or public place as agreed by the parties.
(11)That each parent shall ensure that the other parent is kept informed, as soon as it is reasonably practicable, of all matters relating to the children’s health, their residential address and contact telephone number and any other matter relevant to the welfare of the children.
(12)That this Order operates as authority to any educational facility attended by the children to provide to both parents, at their request, and at their cost, information relating to the children’s education along with copies of the children’s school reports, school photographs and any other documents relating to the children.
(13)That as recommended by Ms M in her family report dated 10 March 2022, the mother is to attend to and ensure that Z undergoes an updated paediatric assessment within 4 weeks of the making of these orders, and Y (and Z if appropriate) be assessed for speech therapy within 4 weeks of the making of these orders. The mother is to follow and attend to any recommendations, prescriptions or referrals made by their treaters.
(14)That the father is to continue attending to his treating psychologist and follow any such recommendations by his treating doctor and psychologist / psychiatrist.
(15)Each parent be and is hereby restrained from:
(a)Denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family in the children’s hearing;
(b)Allowing the children to remain in the hearing of any third party who is denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family.
(c)Each parent be and is hereby restrained from discussing the issues in these proceedings and any other aspect of these proceedings with the children.
(d)Each parent be and is hereby restrained from showing the children any document prepared during these proceedings and is further restrained from allowing the children to view such documents.
(e)That the mother and father are restrained from removing the children out of the Commonwealth of Australia.
(f)That the mother is restrained from relocating with the children outside of Sydney or Town E, New South Wales.
(g)That each parent is retrained from denigrating or criticising the religion of the other parent.
(h)That the mother cannot change the first-name or surname of any of the children without the written consent of the father.
(16)That both parents are entitled to attend the children’s school events such as concerts, carnivals and graduation.
(17)That both parents are entitled to attend the children’s extra-curricular events such as sport competitions.
(18)That the children are placed on an Airport Watch list.
(19)That each party is to pay their respective legal costs in these proceedings.
The mother seeks the following orders:
ORDERS MADE ON 30 AUGUST 2022 BY CONSENT:
(1)That the mother have sole parental responsibility for the children being:
(a)X born in 2012;
(b)Y born in 2014;
(c)Z born in 2016; and
(d)W born in 2019.
Hereinafter collectively referred to as “the children”.
(2)That the children live with the mother.
(3)That the child X born in 2012, spend time with the father as agreed between the parties but at the mothers sole discretion having taken into account the views of the child X.
MINUTE OF ORDERS SOUGHT
(4)That the father spends no time with the children.
(5)That the father may communicate in writing with the children four times in each calendar year at the following times:
(a)Once on or around the first weekend in March;
(b)Once on or around the first weekend in June;
(c)Once on or around the first weekend in September;
(d)Once on or around the first weekend in December.
(6)Such communication referred to in Order 5 may be a letter or a card and/or a gift on each occasion subject to the following conditions:
(a)The father shall ensure at all times:
(i)That the contents of his communications with the children and gifts for the children are age appropriate;
(ii)The father shall not refer in such communications to the children’s mother or any member of the maternal family; and
(iii)The father shall not make any comment which refers to the previous or existing living arrangements for the children or any proposed change to those arrangements.
(7)The mother shall:
(a)Forward to the father within 7 days of the date of these Orders, a postal address or Post Office Box to which the father may address the letters, card, gifts for the children and shall inform the father in a timely manner of any change to such address; and
(b)Ensure that the postal address location or Post Office Box location is checked at appropriate intervals to ensure that any communication addressed to the children is received in a timely manner by the children.
(8)The mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her, have that person review correspondence and gifts AND in the event that she consider that communication does not comply with these Orders, shall return the material to the father or his nominee using the envelopes referred to in Order 9.
(9)The father shall provide to the mother four stamped self-addressed envelopes each year.
(10)In the event that the children express a wish to communicate in writing with the father, then the mother is to facilitate such communication for the children by using the envelopes referred to in Order 9.
(11)That the mother shall be at liberty to change each child’s surname as follows:
(a)So that forthwith, the child, X, be known as, X D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as X, now to be registered as X D;
(b)So that forthwith, the child Y, be known as Y D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as Y, now be registered as Y D;
(c)So that forthwith the child, Z, be known as Z D, and the mother shall and is hereby authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as Z, now be registered as Z D;
(d)So that forthwith the child, W, be known as, W D, and the mother shall and is authorised to apply to the Registrar of Births, Deaths and Marriages, in New South Wales, that the child known as W, now be registered as W D.
(12)That pursuant to Section 68B of the Family Law Act 1975, the father shall be and is hereby restrained by way of injunction from going within 50 metres of any residence that the mother may reside at from time to time and/or any workplace that the mother may attend from time to time.
(13)That pursuant to Section 68B of the Family Law Act 1975, the father shall be and is hereby restrained by way of injunction from going within 50 metres of any school and/or day care that each child or the children collectively attend or may attend from time to time.
(14)That until further order, the mother and father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children, namely:
(a)X born in 2012;
(b)Y born in 2014;
(c)Z born in 2016; and
(d)W born in 2019
from the Commonwealth of Australia for a period of three (3) years;
(15)AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
The Independent Children’s Lawyer seeks the following orders:
(1)The Independent Children’s Lawyer proposes orders as follows, noting that orders were made by consent on 30/8/22 that the mother have sole parental responsibility for all four children, and that X spend time with the father as agreed between the parents, with the mother having the final decision after she takes X’s views into account.
(2)That the children X born 2012, Y born 2014, Z born 2016 and W born 2019 (“the children”) live with the Mother.
(3)That the children spend time with Father as follows:
(a)From the first Saturday in the month following the date of these orders, every first Saturday in the month from 10:00am to 12:00 noon for a period of two months, supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father;
(b)From the conclusion of the time in Order 3(a), every first Saturday in the month from 10:00am to 4:00pm for a period of a further four months, supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father (noting that the first Saturday of each month would include the Saturday of the Father’s Day weekend);
(c)From the conclusion of the time in Order 3(b), every first Saturday in the month from 10:00am to 4:00pm until a period of two years has elapsed from the date of these orders, supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father;
(d)From the conclusion of the time in Order 3(c), every first Saturday in the month from 10:00am to 4:00pm unsupervised but subject to a support service such as the Vulnerable Children’s Program provided through H Services or such other professional support service as is recommended by that Program or any NDIS provider giving services to the father.
(4)That the children have telephone/FaceTime communication with the parent with whom the children are not living or spending time, every Wednesday and unless agreed between 6:00pm and 6:30pm and in that regard, the parent with whom the children are not living is to initiate the call, and the other parent is to facilitate telephone communication between the children and the other parent on those occasions.
(5)That the father be permitted to send cards, gifts and letters to any or all of the children not more times in each calendar year.
(6)That within 14 days the mother provide to the father a postal address to which such cards, gifts and letters can be sent (either a residential address or a Post Office Box number).
(7)That the mother do all things to attend obtain a referral to, and obtain a paediatric treatment and assessment for, the child Z.
(8)That the mother do all things to have Y and Z assessed for speech therapy, and do all things required by any speech therapist.
(9)That the parties communicate (in relation to parenting matters only) as follows:
(a)If the matter requires urgent notice or resolution, via text message;
(b)Otherwise, via the Divvito App or OurFamilyWizard App.
(10)That both parties are to ensure they keep the other advised of their mobile number and email address and shall advise the other of any change within forty-eight (48) hours of such change occurring.
(11)In the event the children or one of them suffers an illness or medical emergency that requires urgent medical attention or hospitalisation whilst in either parent’s care, that parent will as soon as practicable, advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis.
(12)That each parent be restrained by injunction from:
(a)denigrating the other parent, or any other member of their household or family in the presence or hearing of the children;
(b)communicating with the other parent in any way that is other than respectful and civil;
(c)discussing these proceedings with the children or in the presence of the any of them;
(d)showing the children any document(s) connected with these proceedings;
(e)physically disciplining any of the children.
(13)This Order operates as the authority to any educational, medical or extra-curricular provider to the children, to provide any information to each parent that he or she seeks in relation to the care, welfare and development of the children.
(14)For the purpose of these orders, unless otherwise agreed, changeovers shall be at McDonald’s B Street, Suburb C.
The proposals by the parties and the Independent Children’s Lawyer provide for a mixture of no time, supervised time, time with the assistance of particular services and unsupervised time.
By way of background the father was born in 1987 and the Mother was born in 1990.
The father was born in the Country O and the mother in Australia.
In 2011 the parties married in the Country O.
In Late 2011 the parties moved to Australia and lived with maternal grandparents at Town P.
In 2012 the parties’ daughter X was born.
In 2014 the parties’ son Y was born.
In early 2016 the father injures his back while working for Employer Q in Town E.
In 2016 the parties’ son Z was born.
It is uncontroversial that X and Y were both home-schooled. There is a dispute as to which of the parents took on that responsibility and to what degree. For the purposes of the decision in this matter the dispute is unimportant where the court notes that the children now attend a public school. The mother was clear in her evidence that she does not support or propose that the children would again be home schooled.
In 2019 the parties’ daughter W was born.
To be clear the mother has given significant evidence in the proceedings as to incidents of family violence and behaviours of the father relating to his mental health that will be explored further in this decision.
Ultimately the parties’ relationship came to an end on 6 March 2020 at which time the father was charged with Assault on the mother, a malicious damage property offence and resist arrest. It is an agreed fact in the proceedings that the charges were dealt with pursuant to section 114 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
It is agreed that at this time a Provisional ADVO was issued against the father to protect mother.
On 28 March 2020 the Mother and children relocated from Town E to Suburb C and at that time the children ceased spending time with father.
On 24 August 2020 a Final ADVO was made at Town E Local Court, against the father protecting mother for 2 years.
On 17 November 2020 the father commenced these proceedings in the Newcastle Registry of the court and on 8 February 2021 orders were made that the children live with the mother and the proceedings were transferred to the Parramatta Registry of the court.
Sometime in late 2020 or early 2021 the Mother and children move to a rental home in Suburb R.
On 1 March 2021 the court made an order appointing an Independent Children’s Lawyer and orders that the father file with the court a Mental Health Plan.
In about May 2021 the maternal grandparents moved from Town S to Suburb T.
On 28 September 2021 Interim Consent Orders were made that provided:
(1)The children spend time with the father, supervised by N Contact Centre, at a playground in U Street, Suburb V, for at least one hour on alternate Saturdays;
(2)Until that was time was organised, that supervised time to be by Skype;
(3)A Family Report was ordered.
The children subsequently spent supervised time with the father for a one hour period on the following occasions; 6.11.21; 20.11.21; 4.12.21; 15.1.22; 29.1.22; 12.2.22 and then on further supervised occasions.
It should be noted that up until the day prior to the hearing the father had maintained a position in his documents that the children should be removed from living with the mother and placed into his care with the children to then spend alternate weekend time with the mother.
The mother works as a carer and the father a carer.
The mother remains living in rental accommodation in Suburb R and the father lives in rental accommodation in a caravan park in Town E.
What arises from the proceedings are three major issues being:
(1)The father’s mental health and capacity to care for the children;
(2)The father’s family violence;
(3)The mother’s capacity to parent where the court orders time between the children and the father.
The Father’s mental health:
The court found it difficult to understand the current extent of the father’s actual mental health diagnosis and treatment. At paragraph 64 of the father’s affidavit filed on 29 August 2022 he deposed to receiving treatment from Dr AB at AC Hospital for approximately five years up until November 2020 in relation to his “depression, bipolar, attention-deficit hyperactivity disorder and Autism”. The father went on at paragraph 65(a) to depose that he is getting his “toxolate anti-depression medication renewed through his GP”.
However during cross examination of the father found at page 24 of the transcript of proceedings on 30 August 2022 (paragraphs 2 – 46) the father suggested to the court that he has been diagnosed with “ADD – ADHD, autism level 1 – M1” and specifically not bipolar and uncertain about the nature of his depression. The report of Dr AD forming exhibit “B” in the proceedings that was prepared on 27 July 2000 for use as an expert report in the father’s criminal proceedings suggested a diagnosis of Autism Spectrum disorder and mood disorder. The report also suggested at paragraph 34 that in the days prior to the offending the father had stopped taking his mental health medication and was in conflict with the mother. At that paragraph Dr AD opines that the father’s Autism as well as his other mental health difficulties contributed to a lack of skills to manage conflict appropriately and he instead engaged in socially inappropriate behaviours, in other words assaulted the mother smashed her possessions and resisted arrest.
The father was cross examined on his current medication.
Despite the contents of the father’s affidavit filed on 29 August 2022, the father advised the court in cross examination on 31 August 2022 found at page 83 of the transcript at paragraph 20 – 31 that his “current medication is Antenex”. The father advised the court that “Antenex is Valium”, that it was the only medication he was “taking at the moment” that he was taking it for “panic attacks, anxiety” and took it “as required”.
The father was assessed by Ms AE a registered psychologist from AF Psychology for the purposes of providing a report that would assess if the father posed a risk to the children if they were to spend time with him. Her report dated 16 June 2021 is attached to the father’s affidavit and forms part of the mother’s tender bundle. At paragraph 20 of that report, Ms AF set out that the father had advised her he was currently taking Loxalate as prescribed by his GP for Anxiety and Depression. It is unknown whether Ms AF’s view of the father and any risk he posed to the children would have changed, where on the face of the evidence the father had ceased taking Loxalate.
While the father suggested within his affidavit that the report of Ms AF was supportive of his case there were several matters that caused the court concern namely:
(1)The two tests administered by Ms AF the results of which are found at paragraph 25 of the report suggest - Depression: Extremely Severe Range, Anxiety: Extremely Severe Range and Stress: Severe Range.
(2)Ms AF opined at paragraph 29 that the children may be vulnerable in the father’s care in regards to the issue of secure attachment.
(3)The report recommended at paragraph 30 that in order to reduce risk the father should complete the parenting course and anger management course for the purposes of learning skills concerning emotional regulation and that at the date of the hearing those courses had not been attempted or completed by the father.
(4)The report set out at paragraph 35 that Ms AF asked the father for consent to contact the father’s NDIS co-ordinator and that the father refused to provide that permission.
(5)Paragraph 37 of the report sets out the father’s scores for the Adaptive Behavioural Assessment Systems test recording the following results:
(a)All skill areas: Extremely Low Range.
(b)Communication, Functional Academics and Self Direction: Extremely Low Range.
(c)Leisure and Social: Low Range.
(d)Community Use, Home Living, Health and Safety, Self-Care and Work: Extremely Low Range.
(6)Paragraph 39 of the report states that the father’s “adaptive behaviour when applied to his ability to care for four children on his own would be difficult for him in many areas of daily living”.
(7)Ms AF made the point at paragraph 57 that her suggestions made to the father that he undertake an anger management course in addition to parenting courses such as ‘Triple P Parenting’, ‘Circle of Security’ and ‘Parenting after Separation’ fell flat where the father viewed them as unnecessary in order to regain “custodial time” with the children.
Mr Kelly of Counsel for the mother made a significant point about the failings of the father in respect of the state of his evidence before the court regarding his mental health where he put to the father:
Mr Kelly: Okay. Now, you realise that the mother in this case has to accept what you’re telling the court now, because you haven’t brought anyone to give an updated opinion to tell the court what your current mental health status is?
Father: I understand that.
The seriousness of the father’s difficult mental health history was well fleshed out during cross examination where:
·The father accepted that Dr AB reported back to the father’s GP, Dr AG, on 13 September 2017 that the father had evidence of bipolar mood disorder with impairment of judgment, was often depressed, and also had significantly functionally impaired executive functions including being functionally illiterate. (Transcript p.29, 30 august 2022).
·The father had seen Dr AH a psychologist, after having seen Dr AB. The issue of the father having failed to accurately reported his mental health to Dr AB was raised in a report from Dr AH back to Dr AB, dated 27 September 2017 where Dr AH set out:
In discussing this matter with [Mr Cardwell] today, I found out that you asked him certain questions, and when he couldn’t think of the proper answer he would offer you the closest answer to the truth he could think of at the time. I’m not suggesting that he lies, definitely not, but he forgets and must improvise….For example, he has never told you that he frequently has suicidal ideation. He’d been having these thoughts since he was about sixteen years of age, when he moved from [Country AJ] to [Country O].
·The father was forced to admit in cross examination that he had failed to advise his treating mental health professionals as to whether his medication was or was not working. (transcript, 30 August 2022 p.36-37)
·The father’s autism is such that he paces as a coping mechanism during times of stress and that he will pace when nervous or distressed. When asked in cross examination the length of time he would pace now the father answered: “Subject to the nature of stress that I’m in, but it could be anywhere from five minutes, 15 minutes or subject to me just going out for a walk instead of pacing”. The father conceded that he had paced in front of the children. (transcript pp.32-33, 30 August 2022)
·The father was well less than candid about him shouting out in response to what is best described by the court as internal thoughts of self-loathing. The father initially raised the issue in his affidavit at paragraph 98 where he deposed that:
•I also would not say things like “stop talking to me” as alleged by [Ms Cardwell]. I often kept my thoughts to myself and on the rare occasion when I make any comments whilst thinking to myself, it only ever occurred around close family and friends and I immediately reassured them that I was not speaking to them.”
•The father’s exchange with the court and counsel for the mother found at pages 33-35 of the transcript (30 August 2022) below is important where the court was left wondering whether the father attempting to obfuscate the issue, mislead the court or generally had no idea about his condition:
Mr Kelly: So is it – you hear voices within your head, don’t you?
Father: No, that’s not voices.
Mr Kelly: What is it?
Father: Those are ticks.
Mr Kelly: Sorry?
Father: Those are ticks, as – I’m
HIS HONOUR: So do you have ticks? Is that what you’re saying?
Father: That’s right.
Mr Kelly: And you have ticks?
Father: It’s a - - -.
Mr Kelly: that make you say things?
Father:It’s a nervous tick that’s – that’s happening at that point in time.
MR KELLY: Is it in relation to thoughts telling you to do things?
Father: No.
Mr Kelly:Okay. And so you say you only say them around close family and friends?
Father:Close people that I’m comfortable with or whether or not I’m alone, yes.
Mr Kelly:Now, [Dr AH] reported to [Dr AB] in that same letter of 27 September 2017 – he says this:
“Lately, he informs me his thoughts have become hypercritical of himself, particularly of the considering number of errors or failures he perceives he’s made so far in his life.”
So you do have thoughts that intrude on your mind if that’s the word. Correct me if I’m wrong. You have thoughts that come into your head about – and that are critical of yourself?
Father: It was in relation to the – to the subject of that time.
Mr Kelly: Well, it goes on – this letter goes on to say this:
At home with [Ms Cardwell] and with other people he knows, he often shouts out something like, “Stop,” or, “Shut up,” to stop the inner criticisms.
So that’s what – did you tell [Dr AH] that’s why you shouted out, “Stop,” and, “Shut up”?
Father: Yes.
Mr Kelly: So it’s not a tick like you just said to his Honour?---
Father: It – it is a tick. But it’s a tick---It’s a - - -
Mr Kelly: in response to thoughts in your head?
Father: It’s a tick to stress and anxiety because that’s where the critical thoughts are coming from.
Mr Kelly: And when did you last call out, “Stop,” or, “Shut up”?---
Father: I – I would probably say once in the last two months.
Mr Kelly: All right. Now, this letter goes on and says:
“This isn’t too troublesome at home, but recently while in line at [Store AK] to pay a bill, critical thoughts assaulted him, and he shouted out, “Shut up,” and the cashier was affronted and thought he was addressing her.”
Do you remember that happening?
Father: ---I – I recall that there was a situation with me and a cashier, yes.
The father’s failure to be candid with the court regarding his public shouting out in response to the internal thoughts of self-loathing added strength to the mother’s submission that the evidence that the father has serious issues with his mental health was persuasive. The father’s failure to be candid causes the court to question the reliability and credibility of the father’s evidence.
The father’s mental health was further explored with respect to father having made threats to the mother to crash the car whist she and the children were passengers in the vehicle. The court deals with those threats when looking at the issue of family violence further on in this decision.
The issue of the father’s manic episodes was explored where he admitted during cross examination that he was at times hyper-manic, and purchased things the parties could not even close to afford. (transcript, 30 August 2022 p.38 & 51). The issue of the father spending all of the parties’ money was further explored in cross examination:
Mr Kelly: Do you remember telling [Nurse AL] that you – every – around every four weeks, you became elevated and emptied their bank account, splashing out on things or ideas you believe – he believes may change his and the family’s lives? Remember telling [Nurse AL] that?
Father: I can recall something to that regard. (transcript 30 August 2022 p.46)
The Father’s Family Violence:
The issue of threats made by the father to crash the parties’ car killing himself, the mother and the children was a significant issue in the proceedings. It was put to the father in cross examination that he had told a mental health nurse of his threat when scheduled for a two week period:
Mr Kelly: So do you remember telling [Nurse AL] that you had been going to drive your car into a brick wall in an attempt to kill yourself?
Father: That was the initial bit. That was the initial bit of when I was - - -
Mr Kelly: And you became frustrated when you found out you wouldn’t have enough of your dexamphetamine to see you through to your next appointment at the [AC] Hospital?
Father: That was a – that was a frustration. (transcript, 30 August 2022 p.46)
During cross examination the father agreed that he had made threats to crash the car while the mother and children were in the car with him:
Mr Kelly: …... But what the mother says is that – and this is me summarising it. She was in the car with you, and you were saying that you felt like crashing the car and killing yourself. Did you say that to her?
Father: Yes, I did.
Mr Kelly: And you had the children in the car at the time, didn’t you?
Father: I – I did. (transcript 30 August 2022 p.43)
The father agreed that he had smashed the mother’s salt lamps and gave unconvincing evidence that he had done so because the lamps were “dysfunctional”.
The mother alleged to the family consultant in the proceedings that the father;
·was physically violent and would shove or punch the mother in the arm;
·caused her bruising to her shoulder;
·that the father sexually assaulted her during their relationship;
·threatened the mother saying that he would take the children and that he would “get to her”;
·was constantly verbally abusive towards the mother calling her “stupid, idiot, dumb”;
·was controlling of the mother, that she would have to ask for money, ask for the use of the car. Would want to know where she was and had a tracking device on the mother’s phone.
The mother presented as a forthright and honest witness and the court found her evidence both credible and reliable. The court on the other hand found the father’s evidence to be unreliable and that he lacked credit. The court accepts the mother version of the family violence in the parties’ relationship with the exception that the court is not prepared to make a finding against the father of sexual assault where the evidence in the view of the court was not tested to the extent that it would allow the court to make that finding pursuant to what is described as the ‘Briginshaw’ standard. (see. Briginshaw v Briginshaw (1938) 60 CLR 336)
While the test employed by the court is different to the recommendations of the family consultant (where there is a legislative requirement the court carefully consider those matters found at section 60CC when determining what is in the best interest of the children) the court is mindful of the position of the family consultant where she opined that if the court found the father had committed the family violence suggested by the mother the children should spend no time with the father.
The mother’s capacity to cope:
It was submitted on behalf of the mother that the court should consider the effect of the father spending time with the children on the mother. The court’s attention was drawn to the case of Re Andrew (1996) FLC 92-692 (“the Re Andrew principle”) and Sedgley (1995) 19 Fam LR 363 being early authorities that dealt with the Court having to consider the adverse impact on the resident parent’s household if a child was to spend [unsupervised] time with the other parent.
Counsel for the mother relied on the decision in Keane [2021] FamCAFC 1. At paragraphs 72 and 73 of Keane the full court addressed the issue of a party providing ‘cogent evidence’ or ‘evidence of sufficient weight’ relating to the basis for their contention. That at paragraph 81 of Keane the full Court found that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”.
Counsel for the mother submitted the mother’s parenting capacity will be impaired if the children spend time with the father. It was however conceded the mother did not provide any evidence at the hearing from her treating psychologists or other health care professionals as to any impact on her parenting if the children spent any time with the father.
The family consultant was blunt in her assessment about the effect of the father’s behaviour on the mother making clear that the father’s violence and unstable mental health were intertwined and that the reason for violence makes no difference where the impact is the same on the mother.
The court sat through two days of the father’s cross examination where the father’s behaviours and the mother’s lived experience with the father was explored. I witnessed the mother sit silently in my courtroom through the entirety of the cross examination with tears rolling down her face. The effect of the father’s behaviour on the mother is in the view of the court profound.
The mother experienced significant family violence in her relationship with the father and it has in the court’s view tainted and diminished her ability to cope.
The father conceded the effect on his behaviour to the mother during cross examination:
Mr Kelly: So once again, we’re back to the mother, [Ms Cardwell], three young children, a husband who’s telling her he’s going to drive a car into a brick wall and kill himself, empties the bank account every four weeks, and you’re both on Centrelink benefits. That’s a pretty grim situation for the mother. Do you agree with that?
Father: I – I can understand how that can be difficult, yes. (transcript, 30 August 2022 p.46)
It was put to the mother in cross examination that the children had not come to harm whilst spending supervised time with the father. The mother’s response was telling and made clear her genuine concern for the safety of the children when she answered words to the effect “not yet”. In other words the mother holds the view that untimely the children will come to harm in the father’s care supervised or not. While it is difficult for the court to find that the mother’s capacity to parent would be discernibly impaired if the children were to spend time with the father it is not necessary to make such a finding where there are a myriad of matters that pull against the argument of the father and Independent Children’s Lawyer that would see the children spend time and particularly unsupervised time with the father. Instead the court finds that the mother’s capacity to provide for the needs of the children including their intellectual and emotional needs will be diminished by virtue of the children spending any time and particularly unsupervised time with the father.
The Court considers the provision of section 60CC.
There is a benefit in the children having a meaningful relationship with the mother. There is also a benefit in the children having a meaningful relationship with the father but that benefit is eroded by the difficulties with the father’s mental health and his failure to engage in the courses as recommended by Ms AF.
The court considers the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
With respect to the mother the court is concerned about the prospect of neglect. The family consultant raised serious concerns about the children and in particular issues around their speech development. Further concerns were raised where the family consultant felt that the mother was not appropriately across these issues. It is for that reason the Independent Children’s Lawyer proposes that the mother be required to obtain a referral to, and obtain a paediatric treatment for, Z and have Y and Z assessed for speech therapy, and do all things required by any speech therapist. The court considers the orders proposed by the Independent Children’s Lawyer as being necessary to ensure the children do not suffer neglect in the mother’s care.
The family consultant was clear, the father’s mental health and family violence are intertwined. The court cannot be satisfied as to the father’s current mental health diagnosis or treatment and despite the recommendations of Ms AF the father is unwilling to engage in anger management or parenting courses. The report of Ms AF suggests that there are real difficulties with respect to the father providing himself personal care that in turn completely stilts his ability to provide for the day to day needs of the children. The history of the father’s mania, the public yelling, his pacing are all significant risk issues for the children. The court finds that it is necessary to make orders with respect to the children having time with the father to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a matter at the extreme end. The father’s thoughts about running the car off the road in the view of the court exemplifies the seriousness of that risk. The court finds that in order to protect the children it is necessary that the children’s time with the father will need to be professionally supervised on an ongoing basis and that such time will be infrequent and for limited hours where the previous supervised contact notes evidence that such an arrangement can work. The father’s friends from church were extremely well meaning and a good support to the father but given the seriousness of the father’s mental health issues the court does not find them as appropriate supervisors but rather requires the services of professional supervisors. The evidence does not support the court finding that at any given point in the future the children’s time with the father can move to unsupervised time. The court specifically rejects the submission by the Independent Children’s Lawyer that time could move to unsupervised time where the children will be older and have more capacity for protective behaviours.
The court does not consider that it is necessary to make an order for no time in order to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The court finds that professional supervision will ameliorate and mitigate against that risk.
The Independent Children’s Lawyer suggested the children are quite young, and any expressions that they do not want anything to do with their father, is influenced (unintentionally or intentionally) by the mother’s attitude towards him. For instance in cross-examination, counsel for the Independent Children’s Lawyer put to the mother that W was only one year old when the parties separated, and would thus have no memory of the father except when supervised. She said W may have a memory. The court has no views expressed by the children about the issue of a change of name. The court notes the age of the children and due to their maturity and level of understanding gives their views with the exception of X little weight.
The Independent Children’s Lawyer summed up the issues regarding the nature of the children’s relationships with the parties well. It is not disputed that the children have a close relationship with their mother.
As to their relationship with the father, a significant piece of evidence came from Ms Reid’s cross-examination of the Family Consultant, who was asked to comment on:
(a)The evidence from the supervision reports that the children, when they settled into time with the father, appeared to be comfortable with him; and
(b)The mother’s view that the children were behaving well with him as a protective measure to shield them from the father.
Ms M’s response to that question was:
“I would fall on the side of the children being comfortable”.
This is not a case about the extent to which parent has taken, or failed, to participate in making long-term decisions, and to spend time with or communicate with the children.
The mother has been able to fulfil her obligations to maintain the children and the father has not, where it appears he to struggles to just look after himself on a daily basis.
There will be no discernible change in the children’s circumstances if an order is made for ongoing supervision.
The court proposes to make orders for supervised time every first Saturday in the month from 10:00am to 4:00pm supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father. It is the view of the court that the father will be willing to do that and that the difficulty and expense of complying with the orders can be met by the father. The proposal of the Independent Children’s Lawyer that the handover point be Suburb C McDonalds is a sensible one where it will not place a significant burden on the mother to deliver the children to that place.
The mother is on the very fringe of having the capacity to provide for the needs of the children including their intellectual and emotional needs. The court is of the view that it is necessary to make the orders regarding paediatric treatment for Z and having Y and Z assessed for speech therapy. The effect of the youngest three children spending supervised time will as set out above have an impact on the mother but not to the extent that this issue is determinative of whether there should be supervised time or no time. The father lacks the capacity to provide for the needs of the children including their intellectual and emotional needs and it is one of the factors the court has taken into account as to why the children’s time with the father needs to be permanently supervised. The mother seeks a change of name for the children and in turn herself as a means of putting her relationship with the father behind her. The family consultant felt there was not much in the change of name argument and from the point of view of the court it may be an issue that will assist the mother in her capacity where allowed.
The court turns to the consideration found at s 60CC(3)(g) and considers the issue of religion. The father is a practising Religion AM. The mother has given clear evidence that she dislikes the Religion AM faith where she found it controlling. What was born out in the hearing was that the mother effectively sought an injunction against the father ever mentioning or discussing his faith with the children on the basis that doing so would place the children at risk. Submissions were made to the effect that there should be no time because the father was unwilling to agree to an injunction that he would not discuss his religion with the children. The mother has been awarded sole parental responsibility by consent and in this regard it is open to the mother to make a decision as to whether the children should or should not be raised with religious beliefs. The mother’s argument is not supported by any theological expert’s opinion and the court cannot and will not get drawn into the mother’s argument making some finding for or against the Religion AM faith where there is little more to support it other than the mother’s subjective experience and personal dislike.
The children are not Aboriginal or Torres Strait Islander children.
The court considers the attitudes towards the responsibility of parenthood demonstrated by the parties. To the best the court can discern the mother has demonstrated an appropriate attitude towards the responsibilities of parenthood. The father’s refusal to even consider the benefits to the children of him attending upon an anger management course and undertaking parenting courses allows the court to find his attitude wanting.
There was family violence and the father perpetrated it on the mother. The children witnessed it and it has affected X the most. It is her lived experience as a witness to the father’s perpetration of family violence on the mother that is the cause of her resistance in having a relationship with the father. The father’s family violence, lack of insight about it and failure to do an anger management course or perhaps a men’s behavioural change course for perpetrators of family violence of his own volition, in order to mitigate against it happening in the future has allowed to court to find no alternative other than ongoing supervision.
The court notes the ADVO orders made against the father and draws the appropriate inferences. The court notes the orders sought by the mother for a section 68B injunction against the father. Where the ADVO has expired and the court has found it necessary that the children’s time with the father must at all times and for all time be supervised the court finds that it is in order to protect the children’s welfare the section 68B injunctions sought by the mother should be made.
There is no set of orders proffered by the parties or Independent Children’s Lawyer that is least likely to lead to the institution of further proceedings save and except for the order sought for telephone contact. It is the view of the court that given the father’s mental health and the mother’s extreme resistance at the father having contact with the children making an order for telephone communication between the children and the father is likely to lead to the institution of further proceedings. The court therefore declines to make orders for telephone communication.
The parties agree to orders that the children’s names be placed on the Airport Watch List and the court will make orders for that to occur.
The parties have agreed to final orders for the mother to hold sole parental responsibility. The court does not consider section 65DAA.
For the reasons set out above the Court makes the following orders:
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 10 March 2023
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