Federal Circuit and Family Court of Australia
(DIVISION 1)
Doherty & Stacey [2022] FedCFamC1F 428
File number(s): NCC 4100 of 2020 Judgment of: SMITH J Date of judgment: 3 June 2022 Catchwords: FAMILY LAW - Children –father did not wish to continue defending proceedings – undefended hearing – ex tempore decision - single expert’s evidence of father’s dysregulated behaviour and negative impacts on children based on expert’s own observations as well as history – children’s views – unacceptable risk of harm – risk outweighs benefits of meaningful relationship – other s60CC factors not significant. Orders – No time – No communication – s68B injunction. Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 64B, 65AA, 65D, 68B Cases cited: B & B [1993] FLC 297-357
Bank & Banks [2015] FamCAFC 36
M & M [1998] 166 CLR 69
Mazorski & Albright [2007] FamCA 520
Stott & Holgar [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 3 June 2022 Place: Sydney Solicitor for the Applicant: NLS Law Solicitor for the Respondent: Did not participate ORDERS
NCC 4100 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DOHERTY
Applicant
AND: MR STACEY
Respondent
order made by:
SMITH J
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The Orders dated 29 April 2016 be discharged.
2.The Applicant Mother Ms Doherty born 1972 (“the mother”) has sole parental responsibility for X born 20l0 and Y born 2012 (“the children”).
3.The children live with the mother.
4.The Respondent Father Mr Stacey born 1970 (“the father”) spend no time with and have no communication with the children.
5.Pursuant to section 68B of the Family Law Act 1975, for the protection of the children, the father is restrained and an injunction is granted restraining him from:
(a)Removing the children from any school, extra-curricular activity or from the care of any person in whose care the Mother has placed the children; and
(b)Attending within 200 metres of the children's school, the children's residence or any residence the children may attend from time to time.
6.The mother is to serve on the father a copy of these orders and Order 5 will not take effect until the mother has effected service.
7.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
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…
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- Doherty & Stacey [2022] FedCFamC1F 428
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- [2022] FedCFamC1F 428
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CaseChat Overview and Summary
The case of Doherty & Stacey involved a dispute between the parties regarding parenting arrangements for their two children. The mother alleged a history of family violence and the father was said to have issues with mental health and alcohol abuse. The children, X and Y, were born in 2010 and 2012 respectively. The matter was heard by the Family Court of Australia. The primary legal issue was whether the father's difficulties in regulating his emotions and conduct posed an unacceptable risk to the children. The court considered the evidence provided, including an expert report by a clinical psychologist, which was given significant weight. The mother alleged instances of family violence, including an incident where the father allegedly physically assaulted X.
The court evaluated the father's capacity to parent and the risk he posed to the children. The court found that the father had difficulties with emotional regulation, impulse control, and understanding the impact of his behaviours on others. The court was particularly concerned about the father's willingness to express frustration and anger towards an expert, which did not lead to any modification of his behaviour. This indicated a true inability to control his behaviours. The court determined that there was a real risk of psychological harm to the children from being exposed to the father's erratic and dysregulated behaviours and negative attitudes towards the mother and their brother. The court concluded that the father's behaviour posed an unacceptable risk to the children and ordered that the children should not spend time with the father without supervision.
The court evaluated the father's capacity to parent and the risk he posed to the children. The court found that the father had difficulties with emotional regulation, impulse control, and understanding the impact of his behaviours on others. The court was particularly concerned about the father's willingness to express frustration and anger towards an expert, which did not lead to any modification of his behaviour. This indicated a true inability to control his behaviours. The court determined that there was a real risk of psychological harm to the children from being exposed to the father's erratic and dysregulated behaviours and negative attitudes towards the mother and their brother. The court concluded that the father's behaviour posed an unacceptable risk to the children and ordered that the children should not spend time with the father without supervision.
Orders
Orders of the court
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Background
Background to the litigation
I therefore listed the matter for undefended hearing now, this afternoon.Background The very short facts are as follows. The applicant mother, Ms Doherty, was born in 1972 and is 50. The respondent father, Mr Stacey, was born in 1970 and is 52. The parties commenced cohabitation in about October 2007, married in 2009 and separated on 26 August 2013. There are two children from the relationship who are the subject of these proceedings. They are X (“X”) born in 2010, now almost 12, and her younger sister, Y (“Y”) born in 2012, now 10 (“the children”). The mother also has an adult child from a prior relationship, Mr B. Although, mentioned in the evidence, Mr B is not significant to this determination. The mother alleges a history of family violence and further that the father has a history of mental health issues and alcohol abuse. On the issue of the father’s mental health, in addition to the observations of the expert there is evidence before me of the father reporting despair and depression to an allied health practitioner on 10 July 2019. The parties entered into final consent orders on 29 April 2016, with the children living with the mother and spending alternate weekends with the father. Those orders broke down on or about 12 September 2020 when the children returned home and disclosed an incident in which it was alleged that the father had physically assaulted X by tackling her onto a lounge and then onto the floor. He allegedly held her down, pinning her wrists down on either side of her head and yelling at her. I will come back to that when I consider the expert’s opinion.Material Relied Upon I have read the material in the mother’s Court Book which was filed for the final hearing. The Issues The major issues are the father’s parenting capacity and whether or not his difficulties, which arise from his difficulty regulating his emotions and conduct, mean that he is an unacceptable risk to the children. The Evidence The mother’s evidence is largely covered by the single expert. I also give considerable weight to the expert’s own direct observations of the father in assessment process. The single expert report is dated 6 July 2021 (“the expert report”) and prepared by Dr C (‘[Dr C]’ [DC] or ‘the expert’). The expert is a clinical psychologist. Her report is untested. Nevertheless, given her expertise and given that the father indicates that he no longer wishes to contest the matter, I give the expert report significant weight. There is a history of alleged family violence set out from [69] of the expert report. The mother stated at that “there were no incidences of physical violence” [DC 69] but that the father was verbally abusive. She said “that she was always walking on eggshells” [DC 30]. She did, however, say that there was an event when Y was about three weeks old, when the father was yelling at Y and Y was being held up to the father’s face with the father shaking Y and shouting at her. There is also evidence of the father sending a substantial number of abusive emails and messages to the mother. The father at [76] of the expert report told the expert “that he should not have sent the emails”. He then went on to say that he should not have sent them because he should not have put them in writing to be used against him, not because it was inappropriate to speak to the co-parent of his children in an abusive fashion.
Evidence
Evidence Before The Court
The major issues are the father’s parenting capacity and whether or not his difficulties, which arise from his difficulty regulating his emotions and conduct, mean that he is an unacceptable risk to the children. The Evidence The mother’s evidence is largely covered by the single expert. I also give considerable weight to the expert’s own direct observations of the father in assessment process. The single expert report is dated 6 July 2021 (“the expert report”) and prepared by Dr C (‘[Dr C]’ [DC] or ‘the expert’). The expert is a clinical psychologist. Her report is untested. Nevertheless, given her expertise and given that the father indicates that he no longer wishes to contest the matter, I give the expert report significant weight. There is a history of alleged family violence set out from [69] of the expert report. The mother stated at that “there were no incidences of physical violence” [DC 69] but that the father was verbally abusive. She said “that she was always walking on eggshells” [DC 30]. She did, however, say that there was an event when Y was about three weeks old, when the father was yelling at Y and Y was being held up to the father’s face with the father shaking Y and shouting at her. There is also evidence of the father sending a substantial number of abusive emails and messages to the mother. The father at [76] of the expert report told the expert “that he should not have sent the emails”. He then went on to say that he should not have sent them because he should not have put them in writing to be used against him, not because it was inappropriate to speak to the co-parent of his children in an abusive fashion. I note that the mother reported, candidly, that she has struggled with her mental health, as set out from [87] of the expert report. She said she seeks treatment. She has included at page 118 of her court book a report from a Ms D, psychologist, dated 5 March 2021. Ms D seems to have a reasonable and candid history from the mother. Ms D has been treating the mother. She gives the opinion:I wish to comment in this report, in all the years I have consulted with [Ms Doherty] with her own health problems, I have mentioned, [Ms Doherty] remains a caring, responsible and loving mother towards the girls. She is a well-informed and wise mother. She is always there for her girls and takes them to all their school, hobbies and sports activities. She continues later:In summing up my report, I wish to emphasise the competence of [Ms Doherty] as a caring and responsible mother, and to express a view that her ex-husband remains an unstable man capable of continued abuse and unpredictable behaviour. I do not give any weight to the last part of the last sentence from “and to express”. This psychologist has not dealt with the father directly. I do give weight to Ms D’s assessment of the mother’s capacity. That opinion is also supported by a report and opinion from Dr E of 3 March 2021 at page 117 of the mother’s court book. He notes the history of an Adjustment Disorder following the death of the mother’s father and back surgery, and that this evolved into a Major Depressive Disorder. He said that:Currently her main issues are related to anxiety which is a consequence of the very severe stress she was experiencing as a result of the court cases surrounding her children and their father.
Decision
Reasons for decision
In the context of the event with the photographs and also of the father’s apparent emotional dysregulation and his difficulties with impulse control, she also seeks an order pursuant to section 68B of the Family Law Act 1975. Decision The mother seeks parenting orders as defined in Part VII, Division 5 and I note section 64B and the Court’s power to make such orders (see section 65D). The paramount consideration is, of course, the best interests of the children (see section 60CA and 65AA). The primary considerations when determining the best interests of the children are set out in section 60CC. First and foremost is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and second is the benefit to the children of a meaningful relationship with both parents. Greater weight is to be given, as between those two primary considerations, to the protective factor over the benefits of a meaningful relationship. Those are the twin pillars in Mazorski & Albright [2007] FamCA 520, Brown J, at [3]. I note there is an extensive range of additional considerations. I have turned my mind to them. I note what was said in Bank & Banks [2015] FamCAFC 36, at [48] to [50]. I note, of course, this is an undefended hearing but I still have considered these other matters and in particular the children’s views. The real issue here is risk. There is a real risk of psychological harm to the children from being exposed to the father’s erratic and dysregulated behaviours and to his negative attitudes to the mother and their brother. The fact that he physically restrained X in the manner she described is also of significant concern. The children are young but I take their views into account more as evidence of the fact that they have observed the father’s dysregulated behaviour. That they have suffered from, as children, his uncontrolled expression of anger towards them. There is no medical diagnosis and the father has not been psychologically assessed, but there are clearly real difficulties with frustration and impulse control and with the capacity to understand the impact of his behaviours on other people. The fact that he was willing to express his frustration and his anger towards an expert, in the context of litigation where he knew that the expert was there to assess him and his behaviours, and the fact that this did not appear to cause him to modify his expressions of anger is particularly concerning. That suggests a true inability to control his behaviours. The question of whether it is appropriate to go so far as to have a no-time order involves the assessment of risk. I note what was said in M & M [1998] 166 CLR 69 at [78]. Although that was about sexual abuse, the same principles apply:In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Ratio Decidendi
Legal Principle Established
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