CATHCART & CATHCART

[2018] FamCA 1141

FAMILY COURT OF AUSTRALIA

CATHCART & CATHCART [2018] FamCA 1141

FAMILY LAW – PARENTING – where the mother has assaulted the child who has fear of her – where there has been no contact for three years – where the mother does not file material – orders for the child to live with the father and restrains against the mother contacting the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Cathcart

RESPONDENT: Mr Cathcart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1799 of 2012

DATE DELIVERED: 16 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 April 2018

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Korke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Korke

Orders

1. That all extant parenting orders are discharged.

2. That MR CATHCART has sole parental responsibility for X born … 2005.

3. That the child live with her father.

4. Pursuant to s 68B of the Family Law Act 1975 (Cth) MS CATHCART (“the mother”) is retrained by injunction from approaching or being within the vicinity of the child or attending or approaching any school or other curricular activity attended by the child or from attending at B Street, Suburb C.

5. That pursuant to s 121 of the Family Law Act 1975 (Cth), the father has permission to provide to any court a copy of these orders and the reasons for judgment this day.

6. That the order for the appointment of the Independent Children’s Lawyer is discharged.

7. That the response of the mother filed in the Federal Circuit Court of Australia on 18 February 2016 is dismissed for want of prosecution.

8. That the application for final orders filed by the father on 28 February 2018 is otherwise dismissed.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1799  of 2012

MS CATHCART

Applicant

And

MR CATHCART

Respondent

REASONS FOR JUDGMENT

1. This is the final hearing date of parenting proceedings between Mr Cathcart and Ms Cathcart.  The matter was listed for final hearing as a result of a directions hearing before me at a point in time where both parties appeared.  I explained to them their obligations.  The most significant obligation in respect of the mother was that she had to file affidavit material setting out the material she relied upon for the orders she proposed.  She failed to comply with that order at all. 

2. She has been called today and has not attended.  Correspondence indicates she lives in country Victoria and does not have sufficient money to afford the fare to attend.  Having regard to the nature of the application, I do not accept that.  There being no appearance by or on behalf of the mother, her response filed on 18 February 2016 is dismissed for want of prosecution.

3. That then leaves the application of Mr Cathcart.  He relies on an affidavit filed on 26 February 2018 in compliance with the directions.  In addition, he had a lawyer prepare an outline of argument for him, and discussion has taken place about the nature of the orders that he proposes.  He seeks orders that he have sole parental responsibility for the parties’ one child, X, who was born in 2005.  She has just turned 13 years of age. 

4. He seeks a specific order on an oral basis under s 68B of the Family Law Act 1975 (Cth) (“the Act”) that the mother be restrained by injunction from approaching the child, her school or any sporting fixture. To give some efficacy to what he originally sought, the lawyer also drew a proposed order under section 114AA of the Act that if a police officer believed on reasonable grounds that the injunction had been breached, the mother could be arrested without warrant.

5. There are some difficulties with that type of approach.  The first is that the power in s 114 takes the court to the “matrimonial cause” definition.  The only possible power lies in the fact that it is something arising out of the marital relationship.  If the order proposed had been directed towards the protection of the father, one might think that it was appropriate but here, the proposed order relates to the child.

6. There is a specific provision in s 68B of the Act relating to the protection of children. On the discussion that has taken place, the father now makes an oral application for that provision to be applied. To the extent that the mother is not here and was not aware that that particular order was going to be sought, I see prejudice to her because the orders originally proposed were of the same nature. They were under the wrong section and so there is no disadvantage to her.

7. The application for that order is made because of an experience that the father has had in the local Magistrates Court. Initially there was an intervention order made against the mother from having any contact, which was breached, but that expired in 2017. The father is concerned that if he made another such application, he may be unsuccessful. On that basis, it seems more logical to call upon s 68B of the Act. If he considers it necessary, he can apply for an intervention order which would not be affected by the Commonwealth exercise of power.

8. The application also sought a specific order that if the father did seek an intervention order, either personally or through a police officer, he be at liberty to provide to the presiding magistrate a raft of documents that go back mostly to 2016 and 2017.  No real indication was given in the outline as to why that power should be exercised other than the fact that the solicitor said that the father was advised at a defended intervention order proceedings in November 2017 that he was not at liberty to use them, and, indeed, as a matter of law, that is correct.  No application has been made previously for them to be used.

9. Having regard to the timing of those reports and affidavits, any Magistrates Court might be better equipped to deal with the background of this matter by these reasons for judgment and the orders that I propose to make.  Accordingly, I propose to make orders which are a compromise of both the father’s application and those orders proposed by the independent children’s lawyer.

10. The child is the only child of these parties.  She turned 13 years of age in March of this year.  Unfortunately, she has had a very disturbed childhood and early teen years.  These proceedings need to resolve all of that so that she can get on with her life.  The evidence the father relies upon is that he was born in 1966 and enjoys good health.  He drives local transports for a living.  He has commenced a de facto relationship.  His de facto partner has a child who is about six years of age with whom the child has a close relationship.

11. The husband and wife, as they then were, married in 2002.  By background, the mother was born in Country D, and obtained Australian citizenship after the marriage, and then they commenced living in Australia.  The final separation of the parties occurred as long ago as 2006.  It will be self-evident, therefore, that the child was only nine months of age when the parties’ relationship came to an end.  For a number of years after the separation, the child remained in the care of her mother.

12. Final parenting and property orders were made in 2007, and those were said to finalise the relationship between the parents and the child until she turned 18 years of age.  The only basis to reopen those orders would be if something had occurred that gave rise to a change of circumstances.  Around 2015, the father observed that the child was parenting her mother.  He said that the child told him that her mother slept a lot of the time, and at night was spending significant periods on a computer.

13. In August 2015 the child called him and told him that her mother had become enraged over a relatively innocuous event and had struck her.  That apparently led to police intervention because someone at the school had reported the incident to the police.  As best the father could ascertain, the mother was spoken to by the police and received a warning.  In the meantime, the child continued to live with her mother but began to express fear of her mother becoming angry.

14. The father has a sister, Ms E, and between he and his sister, the child began to require assistance in situations where her mother became a danger.  From time to time when a problem arose, the father was required to intervene.  In September 2015 one such event occurred.  The child described her mother had twisted her wrist, hit her with a shoe and injured her.  That led to police intervention.  The child stayed with the father immediately after the event but complained that the pain in her wrist was getting worse.

15. The father’s sister took the child to hospital on the following Sunday night.  A doctor advised that the child had sustained ligament damage.  The wrist was x-rayed and a bandage applied.  The child originally told the doctor that she had fallen over but that clearly was not what occurred.  When she was pressed, she told the doctor about what her mother had done to her.

16. That led to the mandatory reporting to the Department of Health and Human Services, who in turn contacted the police.  The child was then interviewed, and she told the police about the violence by her mother.  The consequence of that interview was that the police issued an application for an intervention order.  A court made an order.  At that stage the 2007 family law orders were in place, and the magistrate was sufficiently concerned about what had happened to suspend them. 

17. The Department of Health and Human Services were also concerned about what had happened to the child to indicate to the father that she was not to be returned to her mother’s care.  That was three years ago, and the child has stayed in the father’s care ever since.  More importantly, despite the effluxion of time, the child continues to express fear of returning to the care of her mother.  She repeatedly uses the word “frightened” when discussions about her mother arise.  I am told that the geographical distance between the mother and the father is about a 12 minute drive and the father says that the child is hyper‑vigilant and whenever she sees a car of a particular colour, becomes frightened.

18. Proceedings were then instituted in this court to alter the original orders.  The application first came before the Federal Circuit Court.  A report was sought from a family consultant looking at how the child was coping with the dispute between her parents.  The report of the family consultant was that the child was unequivocal in her views about not wanting to spend time with her mother.  That was two years ago, and not much has changed since then.

19. The Federal Circuit Court judge was concerned about the way the mother was dealing with matters and ordered she undergo a psychiatric assessment.  Dr F was the psychiatrist, and his evidence is relied upon by the independent children’s lawyer.  Absent the mother’s objection, that evidence can be used to assist.  What Dr F said in November 2016 was that there were allegations about the mother’s mental health, but he was hamstrung because of the lack of evidence from medical practitioners and other professionals. 

20. He said that he could not be definitive, but what he observed was the mother displaying a degree of delusional thinking and thought disorder, which gave credence to the theory that she had had a psychotic disorder.  He was unable to go further in terms of an opinion but hypothesised that it might represent schizophrenic illness or delusional disorder.  He thought that the mother needed further assessment through a psychiatrist and some antipsychotic medication.  Nothing of that nature has occurred thereafter.

21. When the matter eventually came back before the Federal Circuit Court, for reasons that remain obscure, the learned Federal Circuit Court judge decided that it was not able to be accommodated on the circuit and transferred it to this court.  It is unnecessary for me to deal with what happened in the intervening period, including all of the various consultations with experts because, as I earlier mentioned at a directions hearing, I indicated what the issues were to be determined, and the parties were to file specific evidence‑in‑chief for that hearing.  The mother has failed to do so.

22. The intervention order made by the Magistrates Court expired in April 2017, predominantly because the father did not understand that he had to re-attend the court if he wanted it extended.  On the very day that the intervention order expired in 2017, the mother attended the child’s school to demand to see her daughter.  Curiously, with the absence of the intervention order, it seems that the mother understood that the orders of the Federal Circuit Court applied. 

23. For reasons that remain obscure, the parties had agreed to an order that “Contact is reserved.”  I am not sure what that means, other than obviously no order for contact was made, and someone, presumably the mother, had the right to make an application to reopen that particular situation and apply it to specific time with the child.  She had not done so.  It seems that the state of her entitlement to any time with the child was, therefore, in a state of flux.  I raise that because the issue could very well arise again today if I did not make specific orders so that it is very clear what she can and cannot do.

24. During the period of time prior to the expiration of the intervention order, it is the father’s evidence that the mother was on two occasions charged with breaching the order by being within five metres of the child’s school.  I am told today that the mother was released on a good-behaviour bond.  All of that is very unsettling and unsatisfactory.  The child is frightened of her mother, and I find with reasonable foundation, having regard to what happened as long ago as 2015.

25. In April 2017, the mother’s attendance at the school, exacerbated the child’s problems.  The manifestation of those problems is said to be that the child did not want to go to school, her anxiety was heightened, and she developed stomach cramps and became sick.  That in due course led to her attendances on a psychologist, Dr G.  That began in September 2017.  That has been successful because Dr G now is of the view that the child has most things under control and counselling will be ongoing on a needs-basis only.

26. Originally the independent children’s lawyer sought an order that I direct the father to continue that professional relationship, but sensibly, it is now conceded it is unnecessary, because I am satisfied that the father knows what is good for the child. 

27. The discharge of the intervention order led to a further application in the Magistrates Court.  For reasons that remain obscure, when the matter was listed as a contested hearing, the magistrate declined to make the order, and counsel then appearing for the father gave him advice that he could not use documents from this court.  Whilst it is true that he could not use documents without permission of the court, the more important question was that relating to whether those documents would provide any assistance.  It is for that reason that I am setting out the basis behind the need for the orders that I propose to make.

28. In December 2017, the police from Town H attended at the father’s house at 9.30 pm to check on the child.  This was euphemistically called a welfare check.  The police were in the invidious position of having to attend, because of a complaint that a child was not being cared for in the other parent’s possession.  The police were in an invidious position because they had better things to do than attend at night and drag a child out of bed.  That too needs to be taken into account in relation to the orders that I propose to make.  It is improper for the mother, in the circumstances that she was in in December 2017, to demand the police take the action that they did.

29. In any event, some three days later, the Department of Health and Human Services contacted the father to indicate that they had concerns about the mother and her unpredictable behaviour, and warned him to provide whatever protection he could to the child.  All of these problems indicate that there were, and are, ongoing difficulties.  The mother is unpredictable because of what Dr F said about her mental health.

30. The encouraging news is that the mother has not attended the new school, and, therefore, the school has not had to take action.  I want to make clear that this court does not tell schools what to do.  However, if the school was to be aware of the orders that I propose to make and the reasons for them, it would be well within its rights to exclude the mother entirely from the school grounds, including that she would be a trespasser if she persisted.

31. I also take into account that, notwithstanding the mother has not endeavoured to approach the school, she has approached the father’s home and left messages for him, but the tenor of those has been about her complaints that she has done nothing wrong.  All of that ignores the fact that she has had the opportunity to attend here today and indicate why it would be in the child’s best interests for her to have a relationship with her.  It seems to me that the only proper approach here is to make an order restraining her from having any contact with the child, including attending at the child’s house or school.

32. The sorts of parenting orders that the father seeks are found in Part VII of the Family Law Act. Section 65D of the Act gives the court power to make orders if it considers that they are proper. Section 60CA of the Act provides that a court shall not make an order unless it is in the best interests of the child. The best-interests principles are determined by the matters set out in section 60CC, so far as they are relevant. They are mandatory considerations.

33. The child is 13 years of age, and I do not have any evidence as to her current state of maturity, but I think I can draw the conclusion that she does not want to have a relationship with her mother at this time.  That has not altered since 2015, as was evident from the report that was provided to the Federal Circuit Court.  I think it is important, having regard to her age, that weight is given to her views.

34. It is important to deal with the issue of decision-making and parental responsibility. Section 61DA of the Act provides that in parenting proceedings, the court must apply a presumption that it is in the best interests of a child that the parents have equal-shared parental responsibility. There are two situations in which that presumption is rebutted. The first relates to violence towards a child. A finding that the child has been assaulted brings about a mandatory removal of the presumption.

35. The second is that if the court considered it is not in the best interests of a child for the parents to have that responsibility, the court can deem the presumption rebutted. Here both apply. There is sufficient evidence here, unchallenged by the mother, that she assaulted the child. There is sufficient evidence here that the mother and the father cannot communicate, and there is little prospect of any decision being made in the child’s best interests for the future. On that basis, section 61DA does not apply. There is no application by the mother for participation in parental responsibility and I can conclude that for almost the last three years, the father has been exclusively making decisions. The absence of evidence by the mother indicates that she does not seem to have any trouble about the decisions that he has made. On that basis, it is in the child’s best interests that her father have the sole responsibility for decision-making.

1. Turning, then, back to section 60CC, the two primary considerations relate to the benefit of the child having a meaningful relationship with both parents.  Having regard to her age and her resistance to having any relationship at all with her mother, I cannot find on the evidence that there is any benefit to the child in the court endeavouring to foster or create a relationship of a meaningful nature with her mother.  She clearly has a good relationship and a meaningful one with her father.

2. The second limb of the primary considerations relates to the need to protect the child from physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence.  In this case, the unchallenged evidence that she was not only assaulted, but that she has been harassed by her mother at school.  The court must step in to prevent that continuing.

3. There are additional considerations that the court must also consider so long as they are relevant.  There is obviously a close relationship between the child and her father.  He is greatly assisted by his partner and his sister.  The fact that since 2015, the child has resisted time, with her mother indicates that she does not want to have a relationship with her mother.  That may change in the fullness of time but the mother will have to go about it in a different way.

4. In terms of wanting a relationship and the willingness and ability to participate in the child’s life, there is nothing in the mother’s material that I can find to indicate that she wants to have a close and continuing relationship with the child.  If it were otherwise, she would be here with material to indicate the nature of the relationship she wants with her daughter.

5. I am obliged to take into account the impact upon the child of any changes in her circumstances, including the effect of separation from her mother.  Three years is a long time in a child’s life.  When the orders were contemplated in 2015, the child was not a teenager.  She was then a child and terrified of her mother.  Nothing has changed, and yet now the child is entering into her teenage years and maintains her resistance to, if not fear, of her mother.  On that basis, there is an open finding that I can make that there is little impact on the child not having any time with her mother, let alone any relationship with her.

6. The capacity of each of the parents to provide for the needs of a child, including emotional and intellectual needs, is something that gives some guidance to the court as to the nature of the relationship.  When a parent assaults a child or the child has to complain about the absence of a parent, there is something lacking in the parental capacity of that parent.  In my view, there is no evidence here to indicate that the mother – as long ago as 2015 – was providing for the necessary needs of the child, and nothing has changed.  There is no evidence here to indicate that the father is not doing a good job, and I find he is providing all of the needs for the child.

7. The attitude to the child and the responsibilities of parenthood is another matter that the court is obliged to take into account.  That particular issue can only be assessed on the basis of the demonstration of each of the parents.  The father’s is that he gets the child to school at a secondary level and that she seems to be progressing well.  Her extracurricular activities include an outdoor sport, which is designed to cope with her stress.  It also no doubt assists in teaching her responsibilities.  Insofar as there are problems, they have been addressed by the attendance upon Dr G, the psychologist. 

8. All of that indicates to me that the father is a responsible parent.  The absence of evidence from the mother indicates that she does not want to tell the court what her views are at all.  The fact that she has not undertaken any of the things that were recommended by Dr F also indicates a lack of insight into her own capacity as a parent to assist in the child’s development.

9. The court is also obliged to contemplate family violence.  Family violence is insidious.  It impacts upon children particularly when they are unable to understand what is going on.  This is not just separational violence.  The husband and the wife, as they then were, had long been separated, and something happened of an innocuous nature – according to the child – that gave rise to her being assaulted.  The consequences of that were intervention order proceedings, but the mother did little to rectify the problems.  I am satisfied that the mother’s family violence has had an adverse impact on the child.

10. The absence of a family violence order here is only of concern because it seems that the Magistrates Court was not given enough material to justify making an order.  In my view, having regard to the evidence about the mother’s attendance at the father’s home, her lack of attendance to the issues raised by Dr F, her attendance upon the school immediately after the last intervention order expired, all indicate that this is a matter where the mother needs to be curtailed in her activities.

11. What was originally contemplated by the father was an injunction such that the police have power to enforce it.  It might be more sensible for that to be an issue under state law rather than the police have to try and interpret what the Commonwealth law is intended to mean.  In my view, this is a case where the litigation has been on foot for almost three years and it is time to bring it to an end. 

12. It is important that the orders I now make are seen to continue until the conclusion of the child X’s childhood. On that basis, I make orders under Part VII of the Family Law Act,

ORDERS DELIVERED

1. I will make the usual orders for section 62B and 65DA(2) to apply, the father having sole parental responsibility.  I will not make an order that he provide details to the mother of the child’s progress, because those are matters that the mother can make an application to the court about in the future if she so desires.

2. I discharge the Independent Children’s Lawyer.  I will otherwise dismiss the application otherwise.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 April 2018.

Associate: 

Date:  24 April 2018