CHADSEY & CHADSEY

[2019] FCCA 112

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADSEY & CHADSEY [2019] FCCA 112

Catchwords:
FAMILY LAW – Rice & Asplund – whether significant change of circumstances had occurred – effect of order for leave to bring application – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR CHADSEY

Respondent: MS CHADSEY

File Number: BRC 1618 of 2012

Judgment of: Judge Vasta

Hearing date: 17 January 2019

Date of Last Submission: 17 January 2019

Delivered at: Brisbane

Delivered on: 17 January 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Hodgson Lawyers

Solicitors for the Independent Children’s Lawyer: C M Bint Lawyers

ORDERS

1. That the Application filed 3 August 2018 is dismissed.

2. That the final Orders made by consent on 14 March 2018 remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Chadsey & Chadsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1618 of 2012

MR CHADSEY

Applicant

And

MS CHADSEY

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 March 2018, I made orders, by consent, regarding the living arrangements of the three children, X, born in 2011, Y, born in 2010 and Z, born in 2014. 

2. Those orders were made by consent on the second day of a trial.  At the time that the matter was stood down, the father was still in the witness box being cross-examined by the other parties, Mr O’Meara, on behalf of the mother, and Mr Andrew, on behalf of the Independent Children’s Lawyer.

3. The orders relevantly specified that the mother have sole parental responsibility and that the children spend time with the father supervised, at a contact centre.  

4. Order 6 of those orders read as follows:

   That the Father has leave until 13 March 2019 to bring an Application to the Court to change the frequency of time and/or the nature of his time with the children having regard to the psychiatric or psychological counselling and/or intervention that the Father has undertaken.

5. After the orders were made, the father, on the evidence, went to his general practitioner and was referred to a psychologist, Dr B.  The father had his 10 sessions with Dr B.  Almost as soon as those 10 sessions were completed, the father filed an initiating application in this Court on 3 August, 2018. 

6. That initiating application sought, as final orders, that the children live with both parents on a shared care basis, that is, seven days with the father, seven days with the mother and that the parents have equal shared parental responsibility.

7. Therefore, the initiating application was seeking a radical departure from the orders that I had made. 

8. The evidence that the father has given, in the three affidavits that he has filed, are a report from the psychologist and reports from the contact centre. 

9. One would say with regard to the reports from the contact centre that illustrate that the visits are very good and very appropriate.  The father is engaging with the children, and the children are engaging with him.

10. According to those reports, there have been occasions when at least one of the children have said to the father that they did not want to leave when it was time to leave the contact centre and that they wanted to stay with him; and on one occasion, that they wanted to go back to the father’s home.  One of the children drew a picture of herself with a sad face with words “sad forever” which was, it could be inferred, an exclamation as to their emotional state at the fact that they are not going home with the father or spending time with the father other than at the contact centre.

11. As far as the psychological or psychiatric counselling and/or intervention was concerned, the report of Dr B, the psychologist, is a one-page report that says very little.  Relevantly, it says this:

    … Mr Chadsey was required to attend anger management as part of his divorce and child access proceedings.

12. Even though the psychiatrist stated the above as if it were fact, there was no order that he undergo such treatment.  The order was simply that, if the father chose to undergo psychiatric or psychological treatment, the fact that he had done so would be looked at by the Court.  So there was, to start with, a misunderstanding as to why it was that the father was engaging in treatment.  There is nothing in my order that talks about anger management.

13. In any event, the report continues:

    …In the clinical interview he reported a somewhat taxing context of his divorce, preceded by a volatile marriage.  Taking his assertion at face value, then it would appear that the communication in the relationship between him and his ex-partner was somewhat disjointed and far of than optimal for the raising of children.  He acknowledged the emotional impact on him but attributed fault to his partner. Having said that, the dynamic of his past relationship made any kind of clinical assumption irrelevant and non-objective in the sense of that the power and control circle has a starting point and will continue with the proxy of the court.  Current paradigm suggests most commonly males as perpetrator.  I am not at liberty to challenge that paradigm which is statistically speaking, most likely correct, however the interaction of non-compatible personalities escalated in my estimation the domestic situation of [Mr Chadsey]…

14. The report further said:

    …In treatment we focused on general anger management principles (work book provided), future partner choices, dealing with perceived provocation, dealing with court proceedings and managing the ambiguity of court order implementation which was sighted by the treatment provider on request of [Mr Chadsey]. 

    It was observed in treatment that [Mr Chadsey] is seeking a dialogue with his ex-partner but feels rejected on an emotional level.  He utilises external resources such as psychological therapy (to deal with his emotional response and to acquire parenting and conflict resolution skills post-divorce), his mother and others to deal with that situation in a mature and child centred way.

15. The psychologist concludes that:

    ...I have no reservation to recommend a review of his MHCP at earliest convenience.

16. Whilst that report may talk about anger management, anger management was really not the main issue here at all. 

17. The main issue was that the father had absolutely no insight into the power imbalance that existed between him and his wife; the father being a teacher at the school of the mother. I did not made any finding on the issue of how the relationship began, because of the curtailing of the trial, but, even on the best case for the father, he began a sexual relationship with the mother when she had just turned 16; notwithstanding that she had been a student at the school at which he was teaching. 

18. The father has failed to grasp the absolute impropriety of such conduct and in all of the affidavits simply ignores that aspect.

19. Instead, the father speaks of the mother making vexatious and unproven complaints and that the complaints have all been dismissed.  When one gets to the truth of the matter, they have not really even been investigated. 

20. There is nothing from the Teacher’s Registration Board or equivalent authority to say that they know of all of the circumstances of Mr Chadsey and find that he is still a fit and proper person to teach in this country’s schools.  That is the sort of evidence I would expect to justify what the father says when he says that he has been cleared of all these allegations.

21. The father talks of the Queensland Police Service clearing him, but it would seem that all the Queensland Police Service could investigate was an allegation of unlawful carnal knowledge that occurred quite a number of years ago.  It would seem to me that, notwithstanding that they may look at the matter, it would be very difficult to find that the prosecution of the matter was in the public interest.

22. Nevertheless, that does not diminish the seriousness of the impropriety that has occurred.  What it shows is that the Applicant father does not understand boundaries.  That “not understanding boundaries” is why it is that the Court has ensured that the contact that he has with children is supervised.

23. In all of the interventions that the Applicant father has undergone since I made the orders in March 2018, he has done absolutely nothing to confront that particular issue and really has come before this Court today totally ignoring that situation. 

24. There has been nothing of any “psychiatric or psychological intervention undertaken by the father” that would show that any application of which the father has leave to pursue has any merit whatsoever. 

25. The father did make a verbal submission that I should change the nature of the contact so as to allow his mother, that is, the paternal grandmother, to come to the contact centre with him. 

26. It was then explained to me, by the solicitor for the mother, that the maternal grandfather, whom I perceive is not still in a relationship with the paternal grandmother, has contact with the children. This has been arranged by the mother.  The mother has made no such arrangement for the paternal grandmother and does not wish to start now.

27. The affidavit of the mother reiterates an allegation that was not fully tested in the trial because of the parties agreeing to consent orders.  At paragraph 17 of that affidavit, the mother says:

    I recall on the first occasion that [Mr Chadsey] taught my class, I saw him write notes to another female student.  I then wrote him a note saying “hello”, as I thought this was just a thing he was doing as part of his teaching.  After a couple of innocent notes, [Mr Chadsey] asked me words to the effect of, “Do you have any boyfriends or girlfriends?”

    She then talks of the contact then that the Applicant father had with her and how their relationship began.

28. At paragraph 28, she talks about moving into the house of the Applicant father in or around 2008.  At paragraph 28, she said this:

    After we moved to [Suburb C], [Mr Chadsey] and I first had sexual intercourse.  This was the first time I had ever done anything like this.  Whilst I was still 15 I had a pregnancy scare after I was a few weeks late for my period and as we had been having unprotected sex.  Ms E came over to the house and forced me to take a morning after pill as well as try to force me to have a period with what I was told was a ‘douche kit’.  After this Ms E made us use condoms and I was taking the pill which was done in my sister-in-law’s name.

29. Having regard to all of the matters that were litigated, I am inclined to accept that evidence of the mother as contained in her affidavit. Therefore, I would find that it is simply not appropriate for the paternal grandmother to have any contact with these children, and I would not allow any change to the orders I have made in regard to that matter. 

30. Having regard to everything that I have said, it seems to me that, notwithstanding that order 6 allowed for the father to have leave to bring this application, this application has no prospects of any success.

31. It would be deleterious to the overall best interests of the children for the Court to allow such litigation to continue, and so I therefore find that there has been no substantial change of circumstances as that term is understood in Rice & Asplund (1979) FLC 90-725.

32. I dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  13 February 2019