Doherty & Stacey
[2022] FedCFamC1F 428
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 in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doherty & Stacey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for decision in an undefended final hearing of an application for parenting orders pursuant to the Family Law Act 1975 (“the Act”).
The matter was listed before me this morning for the purpose of a final compliance check, as the matter is listed for a final defended hearing on 4 July 2022. The father appeared for himself, his previous lawyers having recently gone off the record. The father advised the Court he did not wish to continue defending the proceeding. This was in the context of his having received certain advice from his lawyers, in particular about the likely impact of the single expert report upon the proceedings, and as to the likely outcome.
Having reviewed that single expert report prior to the mention, I considered that advice unsurprising.
As the father no longer wished to contest the matter, which is his right, and weighing the fact that whilst he may be influenced in taking that decision by certain difficulties he clearly has, but then also weighing the likely impact of those difficulties upon the children as discussed in the expert report, which I will discuss at some length later, it seemed to me that the father was entitled to withdraw, that it was not necessary to appoint an Independent Children’s Lawyer to assist the Court further, and that it was appropriate to move to an undefended hearing today.
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.
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.
I give weight to Dr E’s opinion.
The mother has had some mental health problems and doubtless they have been exacerbated by this court case and some of the father’s behaviour, which I will come to, but I’m satisfied that she is seeking appropriate treatment. I note that the single expert did not consider that the mother had any lack of parenting capacity.
I find that whilst the mother has had difficulties with her mental health she does seek treatment as appropriate and is likely to continue to do so. I find that her parenting capacity is not relevantly impaired.
In terms of the father Dr C at [DC 92] noted that she considered there were:
…significant issues related to the father’s abuse and intimidating communication style and limited adherence to appropriate social boundaries.
I will not detail all of the material in the expert report, but I think it is worthwhile setting out some of Dr C’s observations and perceptions of the father and his behaviour, which appear to be consistent with the mother’s reports.
I give significant weight to Dr C’s own observations as independent observations of the father’s presentation and conduct.
Starting at [121] of the expert report, it was noted that the father had arrived at the family assessment interviews approximately two and a half hours early. The expert described him as “unusually loud and expressive in his communication gestures” when told he was early.
The father turned up with “a large shopping trolley” in which he had presents for the children, including a large painting and other items. These were left in the expert’s front office. Dr C noted that [DC 121]:
…The father appeared to be unaware of the turmoil his presence had caused, not just with regard to the mother, however also to other staff and clients who were present and had turned their attention to see what the commotion was.
Later Dr C said [DC 122] that the father had asked about seeing the children and was told that the children would not be seeing him and there would not be an observation as the children had “demonstrated distress related to it and indicated that they would not participate.”
Dr C noted [DC 123] that:
…The father’s disappointment and frustration were expressed as anger directed to the report writer for interfering in the reconciliation that he had been planning.
She talks about the interview, which the father participated in, but noted [DC 125] that:
The father remained disappointed however he agreed to proceed with the interview although it is noted that he returned to this topic numerous times to express how frustrated he was.
And subsequently [DC 126]:
It is further noted that after the interview had concluded the father followed up with a phone call and subsequent emails in which he criticised the assessment process and the report writer for not being more skilled at persuading the children to participate. He asked for a partial refund given that part of the assessment did not occur, and he later asked for the report to be cancelled and a full refund provided. It is noted that the report writer did not respond to these emails however did contact the father’s solicitor and ask that he discuss the issue with his client and request that the father stop contacting the report writer. It was noted that a responsibility of a Single Expert Report is for correspondence to be transmitted via solicitors only.
While the father’s solicitor had confirmed that he told the father not to continue contacting her, Dr C says that the father continued to contact her, and [DC 127]:
In total the report writer received approximately 12 emails from the father between the 06/06/21 – 14/06/21. These emails spoke primarily of his anger and disappointment at the family assessment.
Dr C also noted that whilst the father relaxed at some stages during the interview [DC 129]:
…He did become angry again towards the end of the assessment interview when topics were raised that he did not like.
The father’s presentation was also said by Dr C to be unusual in a number of fashions. He spoke about his interest in design and architecture at length. She said her perception of him was that [DC 137]:
…It is noted that the father went off on a highly detailed and difficult to follow tangent.
She noted at [138] that the father stated “that he now designs women’s fashion and has been offered a job in Sydney” and that he stated that he has big plans to become a world-known successful fashion designer.
Dr C, who went through all the various things he said about fashion, noted that [DC 138]:
…The report writer notes that it was a very unusual turn in this conversation.
The father then pulled a large art folder from the trolley he brought, placed it on the floor and started going through the drawings. Dr C noted that whilst the father appeared to be “clearly skilled” in drawing, that [DC 139]:
…The father engaged in an unusual and long-winded monologue in which he described his skill and talent. His tone and pace of speech also altered, and he spoke very fast in an unusually excited way. The father’s description of his skill was irrelevant to the child dispute matter, and the report writer attempted numerous times to interrupt him and return the conversation to a child-focus. The father responded to these attempts by speaking louder and over the top of the report writer, in a way that indicated that he was frustrated by being interrupted and was not going to accept the interruption. Eventually the father reached the end of his art book, and he closed the folder.
The father was asked about circumstances in which he watched the house, when he saw the mother and children leave and put some photographs under their door. Dr C says [DC 151]:
151. The report writer queried whether the father could conceive that this could have felt to the mother and children a little bit scary, given that he admitted to watching their home and waiting till they had left. It was suggested that when they returned home and found those photos, that they would have been aware that he had been there, and given their clear communication that this was unwelcome, could it be perceived as intimidating? The father stated that this idea was rubbish. He stated that he did not harm anyone and was trying to communicate to the children. The father stated "boo-hoo, poor woman (referring to the mother)", the father stated that he has no sympathy for her what so ever.
I note that Dr C’s observations occurred in a context where the father knew he was being observed for the purposes of the preparation of an expert report. Even in that context he appeared to have significant difficulty in controlling his emotions and conduct.
The children are young, but their views are relevant. Further, the views that the children express about the father appear to be based upon their genuine subjective experiences of him.
X said that [DC 163] “her mother was very kind and looks after her and her sister well.” X, when asked to describe her father, said “he can be fun and sometimes he is very mean.” X said that sometimes her “father can be crazy in a good way” such as when he is rollerblading, however that Dr C reports that X said [DC 166-168]:
166. However, she also stated that he can also be bad crazy. She stated that once he wanted her and her sister to sit on his lap while he was driving the car. She stated that they did not want to do it because it was against the law, however he told them that they could and so they did. [X] stated that it was fun because she got to drive the car. However, she also knew that it was the wrong thing to do and she felt scared.
167. [X] stated that she does not want to have time with her dad anymore. She stated that when he held her down, he hurt her and he yelled at her and she was really scared. She stated that he also calls [Y] names and yells at her and he called her the B word. [X] stated that one time he was saying it over and over and [Y] was crying and asking him to stop and he said "your just like your mother". [X] stated that he also always says mean and awful things about their mother and their brother. She stated that they have tried to tell him that they love their mother and brother and don't want to hear awful things about them, however he will not listen.
168. [X] stated that she knows her dad can be fun, however she also does not want to have any more time with him. She stated that he is scary, and does the wrong thing, and she wants to stay away from him.
Y was also asked about her parents. Dr C reports [DC 178-183]:
178. [Y] was encouraged to describe the mother and she stated that she is kind, fun and likes to go to the beach and play board games, card games, and watch movies.
179. [Y] was encouraged to describe the father and she stated that she does not like him. She stated that he is mean, he calls her names and he scares [X]. [Y].stated that she asks him to stop calling her names however he keeps doing it all the time. [Y] stated that he says "I'm just like my mum, but in a mean way". She noted that he does not say this to [X].
180. [Y] stated that he does not listen to her. She reported that if she says that she does not want something, he says "the whole world doesn't revolve around you".
181. She stated that he is also mean to her mum. He calls her a grumpy bum and the B word. And says that she is mean for not letting the girls stay with him overnight. [Y] stated that he won't listen when they tell him that they don't want to stay overnight.
182. [Y] stated that she does not want ever stay overnight because he scares her. She stated that when he is angry, he yells and spit comes out and he has a mean look on his face.
183. [Y] stated that when they were at netball once, [X] ran off twice and when they were back at his home, he yelled at [X] and she was crying and telling him to stop and he wouldn't. [Y] stated that he held her down and yelled in her face and they were both scared. [Y] stated that after it, it was like nothing had happened, but they were still really upset. She stated that he scared them.
Dr C also recorded [DC 192]:
Children's Views as Noted in Subpoenaed Material
192. There have been consistent references in subpoenaed information, to the children independently expressing that they are not comfortable with the father and do not like him. The children have stated repeatedly to a range of services that they do not want to have time with him and that he does not listen to them. It is noted that these comments were made prior and post the watch incident. It is further noted that a comment made by a clinical psychologist with a substantial history of working with the girls indicated that, despite the children's assertive declarations, the mother has attempted to encourage their relationship with the father and continued facilitating his time with them.
I am satisfied that I should accept the mother’s evidence, which was not overstated but which indicated that the father has difficulties in controlling himself, difficulty with emotional regulation and difficulties understanding the impact he has on those around him, including, unfortunately, the children.
Orders Sought
The mother seeks a no-time and no-communication order. I note that Dr C set out in some detail in the expert report the significant negatives for the children of losing contact with their father.
She says [DC 237]:
237. It is a poor outcome for the children if a no-time order is made. The loss of the father in their lives will likely have some long-term negative implications for the children. However, the negative impacts of this must be weighed against the risk of the emotional and psychological manipulation that will occur if the children are to maintain time with the father.
As Dr C says, the job for the Court is to weigh the negative of the loss of the father in the children’s lives against the negative of having the father in their lives.
Dr C’s opinion was [DC 268-273]:
268. It is recommended that the children live with the mother and that the mother maintain sole parental responsibility.
269. It is recommended that the children do not participate in an equal shared care arrangement.
270. It is recommended that the Court further consider whether the children should have time with the father or not.
271. If the Court finds that it is in the children's best interest to have time with the father, then it is recommended that this time commence slowly in a supervised capacity at a child-friendly location such as a park. It is recommended that this time gradually increase to an unsupervised arrangement that initially only includes one day per weekend, and gradually progresses to two days per alternative weekend.
272. It is suggested that the mother identify if and when the children are confident and willing enough to spend overnight time with the father.
273. It is suggested that the father explore further, courses related to attuning and parenting assertive teenagers.
Dr C’s report provides a good summary of the material before me.
The mother’s proposal, as set out in her proposed minute of order, is that the orders of 29 April 2016 be discharged, she have sole parental responsibility, the children live with her, and that the father spend no time and have no communication with the children.
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.
I note what was said in B & B [1993] FLC 297-357, at 79,778:
…the standard used by the Family Court 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”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
I note Stott & Holgar [2017] FamCAFC 152, at [37], citing a former judge of this Court saying:
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
While I give considerable weight to the likely significant loss that the children will suffer, particularly in the long run, from having no contact with their father, in my view his clear emotional dysregulation and inability to control his conduct, and the fact that the children express fear of him, I find that the risks to the children’s psychological well-being are so great that it is not appropriate for the children to spend any time with the father nor to have any communication with him.
Again, I emphasise that this is a significant order to make even in the context of the father saying he no longer wished to defend the matter. Nevertheless, the weight of the material is such that this outcome did seem the most likely outcome of a contested final hearing and I had that in mind before I determined that I would proceed on an undefended basis.
The single expert was satisfied, as am I, that the mother has good parenting capacity and addresses her mental health problems so that they do not appear to have had any adverse impact on the children.
I find that because of the father’s inability to regulate his emotions and behaviour, he poses an unacceptable risk to the children of spending time with them or of communicating with them.
This is consistent with the children’s views and the other s60CC(3) factors do not require detailed consideration, noting that the father’s parenting capacity and ability to focus on the children’s needs is significantly impaired.
Applying the principles I am required to apply, I make orders in accordance with the five orders proposed by the mother.
The father’s behaviour gives rise to a real concern that, although he has said he does not wish to defend the proceedings, he may seek to breach the Court’s orders. Given that, and particularly noting the event where the father slipped something under the door, and the fact that I accept the mother feels genuine fear and the children have genuine fear, , I will make the section 68B order,
I will add a sixth order that the mother is to effect service on the father of these orders within 28 days, and that the section 68B order will not take effect until the father is served so that he is not in a position where he breaches the law because he is not aware that there is a 68B order.
If the father is able to engage with counselling or successfully address his dysregulated behaviours it may be open to him, and in the children’s best interests, for time and communication to commence at some future time. That will be a matter for the father to address and, if he does, may be for this Court to re-consider at a future time.
Those are my reasons.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 21 June 2022
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