Finch & Shibo (No 3)
[2016] FamCAFC 109
•24 June 2016
FAMILY COURT OF AUSTRALIA
| FINCH & SHIBO (NO. 3) | [2016] FamCAFC 109 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – With whom a child spends time – The trial judge did not err in ordering that the mother have sole parental responsibility given the expert evidence about the father’s behaviour – The trial judge did not err in ordering that the father only spend time with the child during school holidays; that the father’s time with the child be cancelled if he fails to collect the child within 30 minutes of the designated time; or that the mother have liberty to apply if the father misses two consecutive visits – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) – s 65DAA |
| APPELLANT: | Mr Finch |
| RESPONDENT: | Ms Shibo |
| INDEPENDENT CHILDREN’S LAWYER: | Bruce Scott |
| FILE NUMBER: | BRC | 2788 | of | 2009 |
| APPEAL NUMBER: | NA NA | 56 85 | of of | 2015 2015 |
| DATE DELIVERED: | 24 June 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 7 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 August 2015 16 November 2015 |
| LOWER COURT MNC: | [2015] FamCA 690 [2015] FamCA 1059 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Mr White |
| SOLICITOR FOR THE RESPONDENT: | Suncoast Community Legal Centre |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Shoebridge |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Parker Family Law |
Orders
The appeal NA 56 of 2015 be dismissed.
The appeal NA 85 of 2015 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 56 & 85 of 2015
File Number: BRC 2788 of 2009
| Mr Finch |
Appellant
And
| Ms Shibo |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Mr Finch (“the father”) has appealed orders of Forrest J made on 21 August 2015. Ms Shibo (“the mother”) and the Independent Children’s Lawyer seek that the appeal be dismissed.
The primary complaints relate to parental responsibility and the time the father is permitted to spend with K, the parties’ eight-year-old daughter (“the child”).
Background
In November 2011, the father and mother consented to orders about the child. These provided for equal shared parental responsibility, and for the child to live with the mother and spend alternate weekends with the father.
Problems arose soon after the orders were made, as the father wanted to change the specified place of handover. The proposed change was based on issues associated with the father’s mental health.
In March 2013, an order was made restraining the father from commencing further proceedings without leave. He persisted in making applications until he was eventually given leave to agitate issues concerning:
a)the location of handovers;
b)telephone communication; and
c)the mother’s overseas travel with the child.
In response, the mother sought sole parental responsibility. Although the trial judge said at [7] of his reasons that this was the only change the mother sought to the consent orders, she also proposed other orders including a different handover arrangement.
On 28 October 2014, Forrest J made interim orders for the father to spend alternate weekends with the child, with handovers to occur at her school. The father elected not to take up any of this time prior to the trial in August 2015, as he objected to the place of handover specified in the orders.
Although the interim orders made no provision for school holidays, arrangements were made for the father to spend 20 days with the child over the January and Easter school holidays in 2015, which he did take up.
Following the trial, at which both parties were unrepresented, his Honour ordered that the mother have sole parental responsibility. He also made orders allowing the father to spend time with the child for four nights during each of the term school holidays and for two periods of four nights in the Christmas holidays. In addition, the father was permitted telephone contact each week.
The grounds of appeal
The father drafted the original grounds of appeal which were, with respect to him as an unrepresented litigant, scandalous and vexatious. Fortunately, he was able to obtain pro bono representation, and we are now able to address the four more conventional grounds contained in his amended Notice of Appeal.
Ground 1 – Parental responsibility
Ground 1 concerns the order for the mother to have sole parental responsibility. The trial judge gave these reasons for making that order:
33.The mother deposed in her affidavit evidence to suffering anxiety as a consequence of the father’s behaviour. I accept that the mother’s personality is such that she struggles to deal with the father’s behaviour and that having to deal with him on an ongoing basis could readily compromise her parenting capacity. Doctor [Q’s] opinions support such a finding.
34.I am readily satisfied in this case that the presumption that it is in a child’s best interests for her parents to have equal shared parental responsibility is displaced by the evidence. I do not consider it is in the child’s best interests to put in place an Order that obliges her mother to have to negotiate and agree upon decisions about major long-term issues in respect of the child with the father. That would just be a disaster for the child, in my judgment. There is no evidence that the equal shared parental responsibility Order has been of any benefit to the child in the past. …
The father asserts by this ground that the trial judge erred in ordering that the mother have sole parental responsibility in that he:
(a)Made such order apparently to avoid a consideration of the factors in section 65DAA of the Family Law Act;
(b)Made such order in circumstances where there was no evidence before him of an inability of the parties to reach agreement concerning the major long term matters concerning the child; and
(c)Failed to consider additional orders that might assist the parties to communicate and reach agreement whilst maintaining the orders for equal shared parental responsibility to which they had earlier consented.
The first part of this complaint finds no basis in any of the material before us. The trial judge set out at [27] to [32] the relevant principles to be applied, including those in s 65DAA of the Family Law Act 1975 (Cth). His Honour correctly said that if an order was made for equal shared parental responsibility, he would be obliged to consider the equal time and substantial and significant time scenarios in s 65DAA. For the reasons he later gave, equal shared parental responsibility was not ordered, and hence s 65DAA was not engaged.
In any event, consideration of s 65DAA would clearly have led to the same result, given that his Honour had said earlier in his reasons:
11.The father, unhappy with my restriction of the trial to the determination of those disputes, tried, unsuccessfully, to get me to reconsider the question of the child’s placement in her mother’s principal care. I was not persuaded of any need to reopen the question of her day to day care, particularly having regard to the report of Dr [Q] which I will refer to.
Dr Q’s evidence assumes particular importance in disposing of the second part of Ground 1. His psychiatric report was commissioned after the father claimed that his mental health was such that he was unable to drive a car to collect the child. The report was also ordered in light of the father’s conduct in court, which his Honour described in these terms in his reasons:
13.… the father’s presentation and behaviour has itself always been a cause for concern about the state of his mental health. He is usually always loud, argumentative, obstreperous and disrespectful when he appears in Court. He demonstrates a complete lack of insight as to how his behaviour actually impacts upon his interests.
The father told Dr Q that he has Bipolar Affective Disorder, PTSD and agoraphobia, and suffers from “pretty bad” panic attacks at least once a week. He also advised Dr Q that although he had been prescribed medication, he did not take it, and consumed Valium and alcohol instead.
His Honour found (relevantly to the question of shared parental responsibility):
17.… Dr [Q] acknowledged that the diagnostic issues with respect to the father are complex. The doctor expressed the view that the father has a paranoid stance towards the mother, the Court and others that appears to have arisen more from his underlying character pathology rather than being evidence of any underlying psychotic illness. Dr [Q] said that he could not fully exclude the presence of a delusional disorder…
...
20.… [Dr [Q]] went on to say that the father has clear Cluster B personality traits (eg narcissism, antisocial personality) as well as paranoid traits. He pointed out the father’s obvious difficulties in appropriately managing his emotions within his intimate relationships and his relationships with professional third parties…
21.As to the mother, [Doctor [Q]] referred to her description of having ongoing issues with anxiety, but acknowledged that being involved in the Court process and the high emotional conflict with the father contributes to this. …
22.… The doctor also recommended the father would benefit from engagement with a psychologist for some therapy to address his “high degree of emotional valence towards the mother and the Court which appears to have done the father a major disservice in seeking a relationship with the child”. The doctor also suggested an anger management course be undertaken by the father.
…
24.The doctor also recommended that the Court continue to minimise the ability of the father to contact the mother, either face to face or via electronic means, and that all communications between the parties should occur between a third party as ongoing contact between the parties is likely to cause considerable distress to the mother (unless the father’s behaviour towards the mother improves).
Dr Q’s evidence provided ample basis for his Honour’s findings that the mother struggles with the father’s behaviour and that her parenting capacity could be readily compromised in having to deal with him on an ongoing basis. It was therefore open to his Honour to find, as he did, that the making of an order obliging the mother to negotiate and agree with the father about major long-term issues “would just be a disaster for the child”.
While it may be the case, as is asserted in the second part of Ground 1, that there was no evidence of any long-term issue about which the parties had been unable to reach agreement, conversely we were not taken to any evidence suggesting that any long-term issue had arisen, and been resolved, in the time since the making of the order for equal shared parental responsibility.
Although not specifically referred to in his Honour’s reasons, the father’s trial affidavit provides further evidence to support the decision that the parents should not have equal shared parental responsibility. The father’s affidavit contained a range of extraordinary claims about the mother, including her having threatened to kill him, or have him killed, which had led to the father installing more than 16 CCTV cameras in his home.
The father also said in his affidavit that he was (errors in original):
subjected to a Cambodian National [i.e. the mother] that is over the top and extremely impossible to deal with that has fabricated a whole host of Untruths and has fabricated allegations that are not of a factual and or a truthful nature and has memorized individual’s with her “being the Poor Old Victim Syndrome histrionics”…
In our view, the evidence was such that it was inevitable that the trial judge would determine that the parent who primarily had the child in their care would have sole responsibility for making long-term decisions for the child. The second part of Ground 1 therefore lacks merit.
The third part of Ground 1 must also fail, since we were not told of any proposals put to the trial judge that “might assist the parties to communicate and reach agreement whilst maintaining the orders for equal shared parental responsibility”, nor can we conceive how any such proposals could address the difficulties arising from the father’s mental health or personality issues.
Although not related to any ground of appeal, it was also said on behalf of the father that parental responsibility “was not an issue contained within the orders that provided leave [to the] appellant to litigate”. This proposition is misconceived, since it was the mother who raised the issue, and she was not subject to any restriction such as that which had been imposed on the father.
In his oral submissions in reply, counsel for the father also submitted that the father had not had an opportunity to give evidence in his affidavit relating to parental responsibility because an order had been made restricting each party to one affidavit at trial. That order was made on 28 April 2015; some six months after the mother sought sole parental responsibility. The father therefore had the opportunity to address in his affidavit any matters relating to that issue.
Ground 1 therefore fails.
Ground 2 – Time with the father
This ground relates to the decision to restrict the father’s time with the child to periods of four consecutive nights during the school holidays.
The father complains that in making this order his Honour:
(a)Failed to consider the nature of the relationship between the child and her father;
(b)Failed to make orders in the best interest of the child;
(c)Made such restrictive orders in the absence of any evidence which supported such orders;
(d)Had no or selective regard to the evidence of [Dr Q].
The first part of this complaint lacks substance, since the trial judge not only accepted at [13] that “the father’s love of his daughter is beyond dispute”, but went on to say (emphasis added):
37.The father agreed in his oral evidence that the holiday time he has spent with [the child] coupled with the telephone conversations he has with her each week has enabled him to maintain a meaningful relationship with her…
…
42.Considering the evidence of the father’s extreme difficulties in driving, the mother’s strident distrust of the father and absolute determination not to have to come into contact with him, the father’s current wife’s difficulties in being able to provide assistance in the driving on a Friday afternoon, the father’s concession that his relationship with [the child] is a good one despite there having been no mid-term weekend contact at any time this year and the father’s ultimate concession on the point, in addition to the evidence of Dr [Q], I am satisfied that the proper parenting Order in this case need only provide for the child to spend some time with the father during her school holidays and that school term weekend visits should be forgone.
It therefore cannot properly be argued that the trial judge failed to consider the relationship between father and child, nor were we told of any other aspect of the evidence which his Honour overlooked in dealing with this issue. The first part of this ground therefore lacks merit.
We agree with the submission of the Independent Children’s Lawyer that the second part of the ground is not a ground of appeal at all.
There is also no merit in the third part of the ground, since there was an abundance of evidence to support, first, the decision not to permit time during school term, and secondly, to restrict the holiday visits to four nights at a time.
His Honour recorded at [37] that while the father maintained that he wanted to have time with the child each second weekend, he was “insistent” that this was dependent upon the mother bringing the child to his home or to a roadhouse nominated by him and collecting her at the end of the weekends. The trial judge found that the handover point would not be as the father proposed and, in those circumstances, his Honour was entitled to assume that the father would continue to refuse to have weekend time as he had done since the interim orders were made.
A further reason for not ordering weekend time appears from this paragraph of his Honour’s reasons:
38.Oddly though, having regard to the father’s stated position, the father asserted during his evidence that he was now working as a … prospector and that this work would likely take him out of Brisbane into remote areas for weeks on end, sometimes potentially for a month to two months. This expressed intention was completely inconsistent with a desire to continue to have [the child] spend each second weekend in his care.
Even more importantly, his Honour recorded that:
41.Then, in yet another extraordinary turn of events in this matter, even though the father’s current wife had given evidence that she would be prepared to drive to the proposed roadhouse handover location by herself to collect the child from the mother and return her to the mother at the end of weekends in her father’s care (subject to having difficulties doing that on a Friday afternoon), during his final submissions the father informed the Court that he had changed his position and offered as the solution the proposal that he only have [the child] spend time with him during school holidays as opposed to weekend time during school term. That truly appeared consistent with what the mother had said was what she believed he really wanted, especially coming as it did after the ICL had submitted that the child should spend alternate weekends with the father.
In these circumstances, it is now not open to the father to complain about his time being restricted to holidays. The only issue is whether his Honour erred in deciding that the visits during holidays should be restricted to just four nights.
Again, the evidence of Dr Q provides support for the decision to limit the father’s time. At [23], the trial judge recorded Dr Q’s opinion that:
If the father was engaged with a suitably qualified psychiatrist and was adhering to medications as prescribed and was showing significant stability in his mental state as well as within his emotions more generally and was able to protect the child from his own negative views with respect to the mother and was not exposing the child to domestic violence, physical or otherwise within his current relationship or with others, I would have no concern the child would be at risk of significant harm in the care of the father.
The trial judge could not make a finding that all these conditions would be satisfied. Nevertheless, his Honour also recorded at [26] Dr Q’s view that “he ultimately had no significant fear that the father would be a cause of physical or emotional harm to the child”. While this may be so, the matters causing concern to Dr Q were clearly matters that entitled his Honour to arrive at his decision, which was explained in these paragraphs:
43.In respect of school holiday time, the mother told the Court that she had felt pressured by the father into agreeing to that holiday time that the child had spent with him this year. I have some understanding of her position, but nevertheless she let the child go to spend up to twenty days with the father when she could have legitimately relied on the fact that there is no provision for holiday visits in the existing parenting Order. Although the mother also told the Court that [the child] was not happy going on holidays to her father’s place and that when she came home she was out of sorts and misbehaved for a time, the fact that the mother still let her go, particularly on the second occasion, fortifies me in my finding that the mother herself must consider that [the child] should spend some time with her father despite what she says about it. Indeed, in her affidavit she still said “two to three nights per fortnight work fine for [the child]” and in her oral evidence and submissions she said that any holiday time that [the child] spends with her father should be limited to a couple of days and nights at a time, rather than saying that she should not go and spend any time with him at all.
44.The father robustly submitted at the end of the trial that the child should spend all of the school holidays with him. I do not accept that is in her best interests. Having considered the evidence, particularly the evidence of Dr [Q], I remain concerned about the father’s capacity and commitment to continue to properly engage with his psychiatrist, to appropriately maintain a prescribed medication regime and to take up therapy with a psychologist, and therefore, I am not inclined to make an Order that [the child] spends a lot of time in the holidays with her father.
45.Whilst the evidence of the father’s current wife gives me cause to accept that the father is not being abusive to her, her evidence that there are arguments between the father and her 15 year old son provides support for the mother’s evidence that the child tells her of arguments in the father’s household. The mother’s evidence that the child reports to her that the father still denigrates the mother to her is also concerning. The likely truth of that gains support from the father’s admissions that he taped a telephone conversation with the child in clear contravention of an existing order that he not do that and that he had also asked the child if her mother was still hitting her.
46.Ultimately, I am persuaded to the view that the child spending a few days at a time with her father in each of the school holidays is the proper order to make. Given that the father’s current wife works and is not around during the day on Mondays, Tuesdays, Thursdays or Fridays, it is best, in my view, to keep the periods the child spends with the father to a limited number of days and best to make those days include weekends during the holidays. I am satisfied with the father’s current wife’s evidence that she and the child have a reasonably close and trusting relationship and the child and her sons have reasonably good relationships. I consider that the child’s step-mother will watch out for the child’s wellbeing when she is staying in their home. The father’s wife gave evidence that she goes on holidays to the Philippines, her own country of origin, for four weeks each December, including over Christmas. Accordingly, the holiday time I provide for in the annual Summer holidays will be in January each year as I consider it best that she is around when [the child] visits her father’s home.
These reasons are more than adequate to explain the decision. No error has been demonstrated in the reasoning process. The reasons also expose the fallacy in the fourth part of this ground, since it can be seen that Dr Q’s evidence was crucial in reaching the ultimate decision. As to the complaint that Dr Q’s evidence was used “selectively”, we were not directed to any other part of his evidence that might have led to a different result.
Ground 2 therefore fails.
Ground 3 – Provision if the father is late for visits
This ground asserts that:
in making orders which had the effect of terminating the particular period of time spent in the event that the father failed to collect the child within 30 minutes from the start of the time the trial judge erred in that he failed to make any provision for the provision of notice by the father to the mother explaining the expected delay in collection.
This complaint concerns Order 5(iii), which provides that:
should the father fail to collect the child within 30 minutes from the start of the time, the mother may collect the child and take her home again without any obligation to hand the child over to the father again to spend time with him before the start of the next visit…
We accept the submission of counsel for the mother that the making of the order was not so unreasonable or plainly unjust that we should interfere with the exercise of the trial judge’s discretion. As counsel submitted, any delay in collection of the child by the father could give rise to the parents having to come into contact, which is a scenario his Honour expressly sought to avoid.
Ground 4 – Provision if the father missed two visits
By this ground it was asserted:
That in making the order providing that in the event of a failure to collect the child for two consecutive visits or upon the failure of the father to return the child the mother might relist the matter for the purposes of seeking a discharge of paragraph 4 of the order the trial judge erred in that he made no provision for an application by either party to seek alternative orders such as compensatory time on such application.
We see no merit in this complaint, as the order which is the subject of this ground merely permitted the mother to make an application which she would have been able to make in any event. In our view, the order served the useful purpose of drawing the father’s attention to the fact that if he failed to avail himself of the time (as he had done with the interim order), then he faced the prospect of an application being made to discharge the order. The granting of liberty to the mother to make such an application would not prevent the father from opposing the relief sought (for example by explaining the failure to take up the time), nor would it prevent either him or the mother from seeking some alternative order apart from the discharge of the contact order.
The outcome and costs
There being no merit in any of the grounds of appeal, the appeal against the parenting orders (NA 56 of 2015) will be dismissed.
An appeal by the father against an interlocutory order (NA 85 of 2016) was not pressed, and it too will be dismissed.
Senior counsel for the father and counsel for the mother both appeared pro bono. We were advised by counsel for the mother and by the Independent Children’s Lawyer that no order for costs would be sought in the event the appeal was dismissed. There will therefore be no order as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Ryan JJ) delivered on 24 June 2016.
Associate:
Date: 24 June 2016
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