CHADWICK & CHADWICK

[2014] FamCA 767

FAMILY COURT OF AUSTRALIA

CHADWICK & CHADWICK [2014] FamCA 767

FAMILY LAW – CHILDREN – where interim consent orders were made – where father has complied with orders for only a limited time – where father now does not wish to pursue time with the children – where application brought for final orders for no time between father and children – where father does not appear – where orders made in his absence.

Family Law Act 1975 (Cth) ss 61DA, 65 DAB, 106B.

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Ms Chadwick

RESPONDENT: Mr Chadwick

INDEPENDENT CHILDREN’S LAWYER: Colville Johnstone Lawyers

FILE NUMBER: BRC 7858 of 2009

DATE DELIVERED: 11 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Little

RESPONDENT: In person – no appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Cherry

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children B, born … 2005, and C, born … 2007.

3. The mother and father keep the other parent informed at all times of their email address and notify the other parent at least seven (7) days prior to any change of the same.

4. The mother inform the father by email as soon as reasonably practicable of any serious medical condition, health issue, injury or illness suffered by the respective children.

5. The children live with the mother.

6. Other than by the written agreement of the parties, the children shall spend no time with the father.

7. The mother is permitted to travel internationally with the children for the purpose of holidays.

8. The father be restrained and an injunction issue restraining him from:

   a.going within 500 metres of, entering or remaining in a place of residence or education of the children;

   b.going to within 500 metres of, entering or remaining in a place of residence or employment of the mother;

   c.contacting, following or approaching, or going within 500 metres of the children and mother, except to provide the mother with his email address pursuant to Order 3.

9. If the father fails to sign any document necessary to facilitate an application that any of the children be issued with an Australian passport or that an existing passport is renewed, then a Registrar of the Court is appointed pursuant to s106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7858 of 2009

Ms Chadwick

Applicant

And

Mr Chadwick

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter proceeded to trial before me in July 2013.  After three days of evidence, the parties were able to arrive at a set of consent orders save for a number of matters in respect of which I was asked to make a determination – a perusal of the record and the reasons delivered in the course of that process will illuminate the matters with which I was asked to deal.  The parties reached that agreement against a background where the children, the subject of the proceedings, B born in 2005 and C born in 2007 had not seen their father since about March 2011. 

2. It is clear from a consideration of the evidence before the Court at the time the parties agreed to the making of interim orders that there had been significant difficulties in the father’s mental health and in his presentation - either associated with a deterioration of his mental health or otherwise.  It is pertinent to note, at this juncture, that the father has not filed any affidavit material since about June 2013: that is, the material relied on by him when the matter was before me in July of last year. 

3. A perusal of the terms of the interim order made largely by consent in July 2013 reveals that the parties - no doubt with some reticence, particularly on the part of the mother, and some understandable concern - had arrived at a method by which it was intended the children be reintroduced to the father in a safe and protected environment. 

4. Integral to the orders made in July 2013 were those provisions which placed upon the father the understandably onerous obligation to ensure that the mother was provided with information about the manner in which he had continued to address the very significant mental health issues that had become apparent prior to the party’s separation and which were the subject of significant evidence and consideration before me during the course of the trial last year. 

5. The matter returned before me in June of this year. On 17 June 2014, I adjourned it to today.  The father did not appear. I ordered that the parties have leave to file any updated affidavit material and any applications or amended applications or response documents outlining the orders intended to be sought today.  I also requested the Independent Children’s Lawyer provide to the parties a summary of the matters discussed during the course of that mention.  Consistent with the obligation imposed on her by me, Ms Cherry wrote to the parties outlining and summarising the matters that were discussed. 

6. Annexure “KC01” to Ms Cherry’s affidavit filed 8 August 2014 establishes that the father was informed that Ms Chadwick was then reluctant to facilitate time between the children and the father as a consequence of the father’s determination in relation to J (the child who is the subject of the proceedings in Chadwick & Lacy) and his non-provision of medical information since October 2013. 

7. It is pertinent to note that the correspondence sent by Ms Cherry to the father outlines her understanding of the position of each of the mothers: relevantly, that the legal representatives for Ms Chadwick would be filing an application to have the order made on 12 July 2013 discharged and would seek that there be no time between the father and the children. 

8. In Annexure “KC02” to Ms Cherry’s affidavit - an email ostensibly dated 7 January 2001 but received by the Independent Children’s Lawyer on 23 June 2014 – the father told the Independent Children’s Lawyer that he had:

   Reluctantly decided not to pursue orders for visitation with [B], [C] and [J] and thus will not be attending the matter before her Honour on Monday, 11 August 2014.

9. True to his word as conveyed in that email, the father did not appear when the matter was called this morning. The Amended Initiating Application filed on the mother’s behalf on 8 August 2014 did not specifically refer to her position of seeking an order that there be no time or communication between the children and the father. However, I granted the mother’s legal representative leave to amend that Application to include an order in those terms. 

10. Given the contents of the correspondence forwarded by Ms Cherry to the father and his response to it, I am satisfied he was aware, prior to today, that it was the mother’s intention to advance a position that he have no time or communication with the children when the matter came before me today. 

11. In Allesch v Maunz, a decision of the High Court reported 203 CLR 172, Kirby J noted particularly at paragraph 38 of his Honour’s reasons for judgment the following:

    Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions a party may not take advantage of the opportunity to be heard although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

12. In circumstances where, as here, a person’s rights may be adversely affected by a Court’s decision, that person must be afforded the opportunity to place before the Court evidence, information or submissions: what is required is that the party have the opportunity to do so and not that the party take advantage or seize that opportunity. 

13. The combination of the contents of the correspondence forwarded by Ms Cherry to the father, his response to the same and the email correspondence sent by the mother’s legal representatives on 8 August 2014 satisfies me that the father is aware of the terms of the order sought and has been afforded the opportunity to be heard in respect of the same.  He has had the opportunity, since Ms Cherry’s correspondence on about 19 June of this year, to file any further additional affidavit material. 

14. He has been made well aware, I am satisfied, of the opportunity to appear today and be heard in opposition to the orders sought by Ms Chadwick.  Consistent as I have said with the contents of his response email received by Ms Cherry on 23 June 2014 he has determined not to take that course. 

15. I am well satisfied, in the circumstances, therefore, that the obligation of the Court to afford to the father procedural fairness and natural justice has been satisfied.  I am also well persuaded that it is in the children’s best interests that I proceed to finalise this matter which has been the subject of litigation for a not insignificant period of time. 

16. As these proceedings are proceedings for parenting orders in relation to the children subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act I may make such parenting order as I deem proper.  In doing this I must have regard to the objects of Part VII of the Act and the principles which underpin those objects.  It is, without doubt, established on the evidence that the children should continue to live with their mother and have their primary needs met by her. 

17. This is acknowledged in the father’s email (received 23 June 2014) the contents of which simply inform that he does not intend to seek “visitation” with any of the children. Whilst in such circumstances it may be thought appropriate, simply, to limit the terms of the Reasons provided in support of the orders made, it seems to me to be more appropriate and proper in these circumstances - where the matter has proceeded to trial - to at least make some findings, albeit in summary form. 

18. I do so cognisant of the reality that, like in any matter involving orders in relation to the children, there is always a possibility in the future that the father may depart from his expressed intention and move the Court at some later stage to consider an application for parenting orders.

19. Given this, I consider it appropriate that the Court considering such an application has the benefit (albeit in short form) of the findings I consider appropriate and proper on the evidence before me. 

20. As already outlined the proceedings concern B born in 2005 and C born in 2007.  Their parents commenced a relationship in 1995 and married in November 2000.  They separated on 14 July 2008 at which time the children remained living with their mother - they last saw their father in about March 2011. 

21. The intention of the parties, as evidenced in the Order made 12 July 2013, was to manage the children’s reintroduction to their father in a safe environment and to provide to their mother the confidence that would follow from her being provided information by the father that he had addressed, and was continuing to address, in an appropriate manner the very significant mental health issues revealed on the evidence.

22. The context in which the July 2013 Order was made is that the father had previously made very significant threats of very significant and serious harm toward the mother and the children, the impacts of which cannot be, and is not, underestimated.

23. I accept the evidence of the Family Report Writer of her assessment of the mother’s fears and concerns flowing from her knowledge of those very serious and significant threats of very serious and significant harm. I accept the mother’s concerns are genuine, reasonable and understandable.  Given this, I am well persuaded that the mother’s decision to enter into the July 2013 Orders was, very much, a leap of faith undertaken with the genuine hope that, if implementation of the terms occurred, she could have - with assistance and time and the provision of the appropriate information and the knowledge that the children’s time with the father was, at that stage, being undertaken on a supervised basis and in a safe environment - commenced a contemplation, perhaps, of the children’s time with the father continuing on that basis and, perhaps over time, moving toward unsupervised time.

24. Despite the terms of the July 2013 Order, I accept the father ceased to provide the mother with the information required after about three months.  Despite the terms of the July 2013 Order, the children have not spent time with the father in the manner envisaged by those terms, or at all.

25. I accept the mother’s evidence that, once she became aware - in about September of 2013 - that the father’s position in relation to J (Ms Lacy’s child with him) had changed such that he no longer intended to pursue a relationship with him, her concerns about his functioning were increased. I am persuaded that those concerns continued to increase in the absence of the father’s provision of the information he had agreed, as outlined in the terms of the July 2013 Order, to provide to her.

26. I am persuaded, that the orders sought by the mother as outlined in the Amended Amended Initiating Application filed 8 August 2014, and as further amended by leave this morning, are those which are, in the circumstances of this matter, in the children’s best interests. 

27. I arrive at that determination for the following reasons.

28. There is no evidence before me at present upon which I could be satisfied that the father does not pose an unacceptable risk to the children and to the mother, the children’s uncontested primary care provider.  That is the situation despite the fact that the father has had the opportunity in the period from July 2013 to the present, to provide the Court with further updating material addressing this concern.

29. There is no evidence the father has demonstrated a commitment to the children and to the rebuilding and re-establishment of his relationship with them.

30. The father has outlined, in the email correspondence received by the Independent Children’s Lawyer on 23 June 2014, a clear position that he does not seek time with the children.

31. There is significant concern about the impact on the mother’s capacity to parent the children in the absence of the father’s compliance with the agreed terms of the July 2013 Order - without his compliance with such terms, it is difficult in the circumstances of this case to contemplate the mother being in a position to support the children’s relationship with the father.

32. It is impossible to assess whether the children would obtain benefit from a meaningful relationship with the father in the current circumstances because the Court is unable, as a consequence of the father’s non-compliance with the terms of the July 2013 Order, to assess his current mental health functioning. 

33. This assessment is made more important in this particular case given the significant potential risks to both the mother (the uncontested primary care provider for these children) and, potentially, the children as a consequence of their likely presence with her. This is so given the evidence of Dr A - who provided reports for the Court’s assistance - and the evidence of the Family Report Writer who expressed, albeit in January 2012, a significant view and significant concerns about the stability or otherwise of the father’s mental health. 

34. It is clear the Family Report Writer’s evidence, which I accept, is to the effect that a determination about the father spending time with the children could and should only occur when he has a psychiatric assessment which states that his mental health was stable and that he is no longer a risk to either the mother or the children.

35. In a report dated 30 January 2012, Dr A expresses agreement with a diagnosis that the father suffers from bipolar disorder.  I accept his evidence that the father’s condition resulted, at least for a period in time, in a paranoid psychosis: a severe alteration of mental functioning in which there was irrational thinking, bizarre false beliefs, during which the father’s thought process and method of thinking was out of touch with reality.

36. I accept Dr A’s evidence that, at such times, there was a total and severe impact on the father’s parenting ability.  That was evidenced and apparent in the presence of his mood disturbance, elevated or depressed mood.  I also accept Dr A’s evidence that the risk posed by the father to the children is severe if he is unwell with his depressed, elevated or unstable mood.  I accept Dr A’s evidence that, at such times, the father could behave in an irrational, dangerous manner which posed an extreme risk of harm to the children.

37. It is in that context – and against that background – that the imperative of the father complying with the terms of the July 2013 Order must be assessed. 

38. I accept Dr A’s evidence that he accepted the risk assessment recounted by Dr M in his report dated 14 April 2011 to the general effect that those at greatest risk of violence in the event of the father’s ill health were his ex-wife, Ms Chadwick, his ex-de facto, Ms Lacy, and the children.

39. In general, I accept Dr A’s evidence as set out in the reports he has provided to the Court. I conclude, given my acceptance of his evidence, that before there is any further consideration of any time the children may spend with the father in the future it is imperative that the father is in a position to establish a longstanding period of compliance with appropriate mental health treatment, supported by a report from the treating psychiatrist to evidence compliance and stability of mood. This is so the very significant risk identified by Dr A and accepted by this Court could be considered sufficiently ameliorated as to permit the Court to embark upon the process of balancing the children’s right to have a future ongoing relationship with the father, with the appropriate assessment and consideration of the imperative to protect them from harm - not only directly, but from indirect harm which may be caused to them by any injury received by their primary care provider.

40. It is not remotely disputed that the mother has provided for and met all of the children’s emotional and physical needs post-separation. I conclude she has done so in very difficult and trying circumstances. 

41. I accept Dr A’s evidence that the opinion of any treating consultant psychiatrist engaged by the father would be of great importance in determining, in the future, whether the father is mentally well, whether his condition is stable, and whether there are no doubts about his compliance with treatment so that any future process of re-establishing the relationship between the children and the father could safely recommence.

42. I also accept Dr A’s evidence that, in a state of acute mental illness, the father could well present with a severe impairment of functional capacity, consequent upon his likely severe depression at such time: psychotic processes producing symptoms which are likely to result in altered behaviour, concentration, judgment, a lack of attention and awareness may result.

43. I take into account and accept the comments made by the mother to Dr A when she spoke with him in the course of the preparation of the January 2012 report: that is, that she had lost trust and faith in the father. 

44. The father’s non-compliance with the agreed terms of the July 2013 Order, his change of position in relation to J and his determination not to pursue time with J - expressed in about September 2013 after engaging in a three-day trial in July 2013 in which he sought such time - can have done nothing to rebuild her shattered faith and trust. 

45. I conclude that the understandable and reasonable position of the mother in relation to that fractured trust and faith is a very significant factor which would require further consideration should the father, in the future, commence proceedings seeking to spend time with the children.

1. There is no evidence of compliance by the father with any terms of the order for any period of any greater than about three months. I am not persuaded that there is a benefit to the children to afford them an opportunity to spend time or communicate with the father.  I am not persuaded that any such benefit which may exist is greater than the risk that the father may pose to the children at this point in time.

2. I accept the evidence given of the Family Report Writer that the mother has well and truly demonstrated she is capable of providing for the needs of the children.  I accept she is committed to ensuring that the children are kept safe from any harm.  I also accept the evidence of the Family Report Writer’s observations of the children’s interaction with their mother and that the same demonstrated their close bond and her capacity to meet their physical and protective needs.

3. I accept that, despite the very significant threats and the very significant impact upon her personally of the knowledge of such threats, the mother has demonstrated the ability to act to ensure that the children have a basic understanding that their father has been unwell or ill.  I accept the mother, through her determination to act in such a manner, has demonstrated a significant capacity to be able to shield the children from information which may not have been and may not be, unless received in an appropriate manner, at an appropriate time, beneficial for them to receive.

4. I accept the actions of the mother in determining that the children’s opportunity to spend time with the father occur only within a safe environment, have been actions which have demonstrated significant child focus and significant parental capacity.

5. I also accept that the mother’s parenting of the children, has been significantly responsible for the Family Report Writer’s observations of them as happy and stable.

6. It could not be thought, on the evidence in this particular matter, that the mother has, in any way, overreacted or acted unreasonably in the face of the very significant threats to kill and harm her. The impact on her of those threats and her knowledge of those threats having been made in the detail with which they were made, should not, in any way be underestimated.

7. It is clear, and I accept and find, that the threats as outlined in the material, were made by the father toward the mother and that those threats amounted to significant and serious threats to kill her and members of her family and to harm them.  In such circumstance, I am satisfied that the father has engaged in family violence and I am satisfied that the presumption of equal shared parental responsibility does not apply.

8. For the reasons I have expressed already in relation to the mother’s capacity, child focus and demonstrated ability to act protectively towards the children, I am well satisfied that it is in their best interests that an order be made for her to have sole parental responsibility for them.

9. I am also satisfied that it is in the children’s best interests that they be afforded an opportunity to travel overseas on holiday with their mother at indeterminate times in the future.  Such opportunity can only provide to them the benefits associated with travel.  I am also satisfied, in the particular circumstances of this case, that it is in the children’s best interests that the Court make orders that are most designed to ensure that any future necessity for the children’s passports to be applied for in the future occur without the necessity of communication between the mother and the father - for these reasons, orders will also issue in the manner discussed between myself and the mother’s legal representative in order to facilitate the mother obtaining any future passports for the children.

10. It is apparent from the Amended Amended Initiating Application filed 8 August 2014 that the mother continues to seek injunctive relief in the terms outlined within.  There are a number of difficulties associated with the making of such orders in such terms. It will be apparent from a perusal of the exchange between myself and Ms Little, the mother’s legal representative, that I held reservations about orders in such terms. 

11. However, I am persuaded in this case, as a consequence of the very significant threats and the very detailed manner in which those threats were conveyed - taken in conjunction with the evidence about the father’s employment and past employment - that the balance of the convenience and the children’s best interests favour the making of orders in those terms.

12. I arrive at this conclusion because:

    a)the evidence certainly establishes past serious risk of a severe nature; and

    b)as already outlined, I am not in possession, at this stage, of any information from the father, in compliance with the terms of the July 2014 Order, that would give me any comfort or ability to assess the likely risk at present or the likelihood or otherwise of any future actions by the father.

13. I take into account, also, as a third consideration, the submissions made by Ms Little as to the likely difficulty into the future of the mother continuing to obtain, at the end of the expiration of the existing Protection Order, a future Protection Order in circumstances where there is no evidence to suggest that the father has not complied with the terms of existing orders and orders that have previously been made.  Whilst those considerations are, of course, for the State Courts entrusted with the obligation of making orders pursuant to State legislation, I am persuaded that this Court should act cautiously in this matter.

14. I am also persuaded that it is beneficial for the children that the mother be in a position to provide to their schools, wherever they may be in the future, one document which clearly sets out the restrictions upon the father’s ability to come into contact with the children.  I also take into account, as a persuasive factor, the undesirability in this case of requiring the mother to continue, in the event that she seeks to obtain the benefit of a Protection Order after the expiration of the current Protection Order, to have to come into some form of contact with the father so as to prove service.

15. I also take into account what I consider to be a likely impost on the mother’s exercise of her significant parental capacity if she has to undertake the process of applying for a Protection Order after the expiration of the existing order.  Exposure of the children to the mother’s likely heightened anxiety at such times is not regarded by me to be in any way in their best interests.

16. In arriving at the decision that it is in the children’s best interests to make orders in the terms sought, I take into account the concession, quite properly made by Ms Little on behalf of the mother, that there is no evidence of non-compliance by the father with the terms of the existing Protection Order. It is and will be, of course, a matter for the mother, should there be inadvertent non-compliance by the father with the terms of the order, to determine whether she returns the matter to this Court to prosecute any such inadvertent non-compliance.

17. There will also be orders in terms that I have already discussed with Ms Little to facilitate the mother obtaining any future passports for the children, including an order pursuant to s 106B authorising a Registrar of the Court to sign any application for passports in the stead of the father - the intention of the Court is that the mother is able to obtain such replacement passports as may be required in the future without the necessity of obtaining the father’s signature.

I certify that the preceding sixty-to (62) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 11 August 2014.

Associate:                 

Date:    11 August 2014