Flint and Odger

[2020] FamCA 2

FAMILY COURT OF AUSTRALIA

FLINT & ODGER [2020] FamCA 2

FAMILY LAW – CHILDREN –where the mother has sole responsibility and the child lives with the mother – where ordered that the child not spend time with the father.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Mulvany & Lane [2009] FLC 93-404 FamCAFC 76

APPLICANT: Mr Flint

RESPONDENT: Ms Odger

INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

FILE NUMBER: MLC 1394 of 2016

DATE DELIVERED: 8 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 October 2019

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Ms Pearson

SOLICITOR FOR THE RESPONDENT: Nevett Wilkinson Frawley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tesoriero  

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Heinz Partners

Orders

1. That the mother have sole parental responsibility for the child X (‘the child’) born … 2014.

2. The child live with the mother.

3. The child not spend time with the father.

4. All extant applications for final orders be otherwise dismissed and removed from the list of cases awaiting hearing.

5. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1394 of 2016

Mr Flint

Applicant

And

Ms Odger

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 28 August 2019, I made orders in chambers listing the parenting proceedings for a trial management hearing on 23 September 2019. I also made orders requiring the father, who is the applicant, to file and serve an Amended Initiating Application by 6 September 2019 and the mother to file and serve an Amended Response to Initiating Application by 13 September 2019.

2. Although the mother filed an Amended Response on 13 September 2019, the father did not comply with my order and, at the hearing before me on 7 October 2019, had still not done so. The father wrote to the Court seeking an adjournment of the trial management hearing and did not appear at that hearing, although he had been advised that it remained listed.

3. On 23 September 2019, in circumstances where the father had not filed an Amended Initiating Application as ordered and had not appeared or been represented at the hearing, I made orders requiring the father to appear or be represented at the further hearing of the matter before me on 7 October 2019 and granted liberty to the mother to apply to proceed with her application on an undefended basis on that date. I also made orders requiring the mother to serve a sealed copy of the orders made that day upon the father by prepaid post addressed to him at his last known address and by email addressed to his sister’s email address …. I am satisfied that the documents were served upon the father. This is evidenced by the fact that he again requested that the matter be adjourned. 

4. On Friday 4 October 2019, the father again contacted the Court seeking an adjournment of the hearing on 7 October 2019 and was again advised that the matter remained listed.

5. On Monday 7 October 2019, the father appeared and made an oral application to have the matter adjourned. That application was dismissed.

6. The mother then sought leave to proceed on an undefended basis. Almost immediately after her counsel commenced her submissions the father became agitated and started to move towards the door of the courtroom. The father’s sister, who had accompanied him to Court, whilst initially demanding that the father remain for the hearing eventually also left, verbally abusing the mother in the process. The mother was extremely distressed and was accompanied by security to the Court’s secure room where she remained until after the luncheon adjournment. The father was called when the hearing resumed after the luncheon adjournment but did not appear.

7. The mother in her Amended Response sought orders dismissing the father’s application, that she have sole parental responsibility for the child, that the child live with her and that the questions of the child’s time and communication with the father be reserved. Counsel for the mother submitted at the conclusion of the case that an order should be made that the child not spend any time with the father.

Background

1. In her Affidavit filed 30 September 2019, the mother set out a detailed history of her relationship with the father, the child’s health, her health, and some of the history of the proceedings. She also relied on the Affidavits of her mental health support worker Ms B and the child’s family therapist Ms C.

2. The mother is 30 years of age. In 2015 the mother was diagnosed with cancer. She is currently in remission but still has check-ups at the D Centre, the demands of caring for the child permitting.

3. The father is 43 years of age. The mother deposes that he has Hepatitis C and it is her evidence that he has a history of using illegal drugs.

4. The father and mother commenced cohabitation in March 2014 and separated in February 2015. There is one child of their relationship X (“the child”) born in 2014 and currently five years of age.

5. The mother deposes that the child was referred to “E Group” for a psychological assessment with regard to his behaviour and social difficulties. The opinion of the psychologist who carried out that assessment was that the child has autism spectrum disorder. The child has been diagnosed as having level 3 autism, which is the most severe autism diagnosis requiring very substantial support. The mother deposed at paragraph 8 of her Affidavit filed 30 September 2019 as follows:

   At level 3, sufferers have inflexibility of behaviour, extreme difficulty coping with change or other restricted/repetitive behaviour which markedly interfere with functioning in all spheres. There is great distress or difficulty changing focus or action. There is also severe deficits in verbal and non-verbal social communication skills causing severe impairments in functioning. X requires constant monitoring as he will try to harm himself when he is frustrated. X is unable to verbalise but I understand his cues for attention.

6. The child has significant difficulty swallowing, has sleep apnoea and constantly wakes during the night. He has also been diagnosed with Post Traumatic Stress Disorder, Attention Deficit Hyperactive Disorder and Judgement Disorder. The mother also says that he has symptoms consistent with an early presentation of potentially serious disordered attachment. She describes his behaviour as volatile, impulsive and constant with episodes occurring through the day and lasting for anywhere between 10 minutes to several hours.

7. Notwithstanding that the proceedings have been on foot since 2016, for a variety of reasons, the father has not spent any time with the child since the parties separated.

8. The mother makes serious allegations of family violence and there is a current intervention order which was made on 30 August 2017 naming the mother and the child as aggrieved family members.  

Leave To Proceed Undefended  

1. Pursuant to Rule 11.02 (2) of the Family Law Rules 2004 (Cth) (“the Rules”) the Court may dismiss all or part of a case and/or determine a case as if it were undefended if a party does not comply with the Rules, the Regulations or a procedural order.

2. The father in this case did not comply with my orders made 28 August 2019 and although those orders were not made all that long before the hearing before me, he has also not complied with the Independent Children’s Lawyers (“ICL”) requests that he undertake drug testing pursuant to orders of Judge Riethmuller made by consent on 2 December 2016. In my view of even greater significance, relevant for the purposes of both his adjournment application and the mother’s application to proceed undefended, is that when he did appear his explanation for not having complied with the orders requiring him to file an Amended Application was firstly that he had not received a copy of the order, which I am satisfied is not the case, had difficulty with the Commonwealth Courts Portal and had not had time to prepare his case. Whilst this may have explained why he might not have filed an Amended Application prior to the hearing on 23 September 2019, it did not explain why he had not filed that application by the 7 October 2019. The father also said by way of explanation for not having undertaken the drug testing as requested by the ICL that he had “complied with everything I needed to do until last year, until like basically I just kept getting kicked on the ground and it was like even if I do produce these clean urines I mean I’m still not going to be able to get to see him…”.

3. In my view of even greater significance was the fact that the father could not really articulate what he would be seeking if the Court did not accede to the mother’s application to proceed on an undefended basis and the matter had been adjourned. Doing the best I can, the father’s case seemed to be that he would be able to see the child as long as the mother co-operated. He also said in support of his application for an adjournment that  “I want to be cross-examined, I want my sister to be cross-examined, I want [the child’s] mother to be cross-examined, and I want [the mother’s] dad to be cross-examined also, and the truth needs to come out once and for all… they’re all just lies and manipulation, skills [sic] have brought this to where it is at the moment and at the end of the day the truth needs to come out for [the child’s] sake.” In my view the father’s case totally ignored the needs of this child and the history of the matter.

4. Notwithstanding that the proceedings have been on foot since 2016, the child has not spent any time with the father since the father and mother separated and given the particular needs of the child, any reintroduction of the father to the child would have to be carefully managed. In the family report prepared by Dr F and dated 7 May 2017, he opined at paragraph 54 that “...despite [the father’s] professed increased understanding of autism afforded him by purportedly doing several autism courses in talking to him about the way autism affects behaviour and development the writer was left with the impression that the father still lacked awareness of the complexities of autism and especially the nature of the everyday difficulties presented by the child to his carers.” This is consistent with the father’s case that all that was needed was for the mother to co-operate. 

5. With a view no doubt to addressing these concerns, Dr F recommended that the father’s parenting capacity and in particular his capacity to parent a severely disabled child, be assessed as part of the M Centre 10 day live in program. It was further recommended that upon completion of the M Centre program, time with the father be gradually introduced and carefully monitored. Dr F suggested that “…initially he should undertake five if not 10 sessions at the Town G Contact Service and that agency should assess the precise type of conditions that should apply to his future spend time with the child. Dr F at paragraph 62 of his report also said that “…[b]ecause of the seemingly extreme nature of the child’s disability it is likely that for some considerable time the father’s spend time with the child will need to be supervised and in the company of the mother for a significant amount of such time so as to maintain the child’s everyday world of consistency, predictability, sameness and stability.”

6. Through no fault of the father’s, he did not qualify for the M Centre program.  Even if he had qualified and had been assessed as having the capacity to care for the child, the Town G Contact Service advised the ICL by letter dated 30 April 2018 that having attended at the mother’s home on 23 April 2018 they had concluded that the service was unable to guarantee the safety of all family members and in particular those listed on the intervention order and did not propose to proceed with the application to use the centre. Although the allegations of family violence are denied by the father, there is what Town G Contact Service describe as a lifelong intervention order. The behaviour of the father and his sister at Court on the day of the hearing also lends weight to the allegations of family violence and force to the validity of the mother’s concerns about the father’s behaviour. It is difficult to see how in these circumstances the mother could be expected to supervise the child’s time with the father or provide the necessary environment the child requires as suggested by Dr F.

7. The father made no proposal which would offer a way forward and in these circumstances there is in my view little utility in the proceedings from his point of view. Even if as he submitted the allegations of family violence were found to be untrue, the problems with respect to the father’s capacity to care for the child, given his particular requirements, are ongoing and unresolved. There is also the added problem with respect to the father’s drug use and his failure to undertake the requested tests, which he did not in my view adequately address.

8. Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) sets out the principles for conducting child related proceedings. Relevantly for the purposes of the decision the Court must make in this case they require consideration of the needs of the child and the impact of the proceedings on the child in determining how the proceedings are to be conducted, that the Court actively direct, control and manage the proceedings, that the proceedings are to be conducted in a way that will safeguard the parties or the child from being subjected to or exposed to family violence and that the proceedings are conducted without undue delay and with as little formality and legal technicality and form as possible. In a similar vein as this last principle, the main purpose of the Rules is to “…ensure that each case is resolved in a just and timely manner as at cost to the parties and the court that is reasonable in the circumstances of the case,” pursuant to Rule 1.04 of the Rules. In all of the circumstances, I am satisfied that the appropriate course is for these proceedings to be heard and determined on an undefended basis. The mother is the child’s sole carer and in my view is entitled to have these proceedings concluded so that she can focus on the substantial care this child requires.

Legal Principles

1. The objects underlying the provisions of Part VII of the Act for the purposes of ensuring that the best interests of the children the subject of proceeding are met are set out in s 60B(1) of the Act as follows:

   The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s 60B(2) of the Act. They are that unless it would be contrary to the best interests of a child:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. When the court makes parenting orders it is the best interests of the child the subject of the proceedings that are paramount (s60CA of the Act). In determining what orders will be in the child’s best interests the Court must consider the matters in ss 60CC(2) and (3) of the Act. In applying the considerations in s 60CC(2) of the Act the court must give greater weight to the second of those considerations, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

4. In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76] – [77] as follows:

   It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.

   It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

   (Original emphasis)

5. When making parenting orders the court must apply the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child the subject of the proceedings or another child who was a member of that parent’s household at the time or that there has been family violence. The father said before he left the courtroom that the allegations of family violence and inappropriate care of the child made by the mother were untrue. Although the allegations the mother makes, including that the father received a good behaviour bond for breaching the intervention order at Court have not been tested, in my view they are serious and the Court should act cautiously. The mother’s evidence about the father breaching the intervention order was also consistent with what I observed of the father’s behaviour and the behaviour of his sister in Court. In all of the circumstances, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence and in these circumstances the presumption does not apply.

The Evidence  

1. The mother as ordered had filed what was in effect an Affidavit of evidence in chief, which sets out some of the background and history of the matter and detailed the particular and significant needs of the child. The mother also relied upon the report prepared by Dr F. Although that report was prepared some time ago, in circumstances where the father has not undertaken the recommended assessment of his parenting capacity and the child has not spent any time with him since that report was released, it was still of significant assistance to me. As previously referred to, the father had not filed any material.

2. The child’s disabilities as reported to Dr F by the various professionals engaged with the mother and the child at that time and as described by Ms C and Ms B who have involvement with and who have observed both the mother and the child, are profound. The child requires 24/7 care and supervision. Dr F reported that the mother had been described by Dr H, Registrar for Infant Mental Health at the Hospital J as “..very caring…” and by Ms K of L Group as “..a capable parent who at all times cared well for the child…” and was “…highly committed to the special needs of the child and there were no concerns for the child in her care.”  

3. This is a child who is described by the various experts as needing a consistent and predictable approach and a great deal of ongoing professional support. The father has no experience of caring for the child and even if he complied with orders and participated in the hearing, his capacity to care for the child is uncertain and untested. Dr F said commencing at paragraph 28 of his report as follows:

   28.The father continued to express in an almost naïve or over simplistic view that seemingly because of his autism courses undertaken he now understood autism therefore because of his strong commitment to the child and the grossly unfair way he had been thus far treated by the mother with respect to his right to spend time with the child the child’s best interests now dictated that he should be able to spend time with him as his father as soon as possible so that they could try to make up for the time they had already lost together.

   29.The father was also very upset that the mother had given him virtually no information about the child’s developmental progress in the past two years and requested that in line with Orders of December 2016 the mother had failed to give him such information and therefore was in breach of the orders.

   30.The writer in his professional capacity as a child psychologist who specializes in childhood disorders including autism next advised the father that the child’s diagnoses and current and seeming likely ongoing presentation as described by the various health care professionals, but also especially by the mother, suggested that there would need to be a very carefully structured introduction of him into the child’s. Hearing this the father appeared somewhat taken aback and seemed to not fully understand the gravity of the child’s situation in particular his difficulty with social situations and therefore for such a young child to meet the father almost as a stranger could be quite confronting to the child as such action could very easily violate the vital stability of his world and his constant need for consistency, sameness and predictability could very easily induce high anxiety and uncontrolled acting out aggressive behaviour in him as well.

   31.Again the father listened intently but again he seemed to not grasp the full implications of how the autistic mind may work in a seemingly so often so disturbed and still so young, immature, highly vulnerable and totally dependent child.

   32.However to his credit after the writer repeatedly told him about what he might expect from the emotional and cognitive capacity of a child diagnosed with severe autism as applied in this case the father next stated in a somewhat reluctant tone that he would be prepared to go as slowly as the child’s health care professionals advised with his reintroduction into the child’s life. He also commented that if the child did have such severe issues as stated by the mother then surely the best interests of the child would be for her to have the extra and guaranteed physical support that he and his sister and other family members could give her so that from time to time she herself could have a break from the arduous responsibilities of the child’s 24/7 care.

   33.Finally despite the direction of the overall discussion the father in a somewhat embittered manner still asserted that the mother had long-standing and untreated and unresolved mental health issues thereby to address his ongoing concerns about the mother’s instability and to protect the child’s best interest he wanted the mother to undergo a mental health assessment.

4. Dr F at paragraph 55 of his report also referred to the father still having a “...somewhat simplistic if not naïve type of understanding of what autism is and how it works and affects those afflicted by it,” notwithstanding the material attached to the mother’s Affidavit in relation to the complexity and severity of the child’s difficulties.  Notwithstanding that he had had Dr F’s report available to him some two years later, the father still seems to have a fundamental lack of understanding of the child’s issues and needs or chooses to disregard them.  

5. Although there is no way of knowing exactly what orders the father would have sought, it is clear that he was not suggesting that the child should live with him. In any event, I am satisfied that the mother has and has demonstrated the capacity to care for the child and I am satisfied that she will continue to do all she can to provide for his physical and emotional needs. 

6. Although the Act requires the court to consider the benefits of the child having a meaningful relationship with both of his parents, what might be considered to be a meaningful relationship for this child is shaped by his disabilities and their impact on his daily life. In my view, in these circumstances there can be no meaningful relationship with the father unless those needs are acknowledged, understood and addressed. The evidence does not suggest that the father acknowledges or understands the child’s disabilities and what his care requires. The father’s proposal that he needs to spend some time with the child and that can happen as long as the mother co-operates, confirms in my view that little has changed since Dr F prepared his report.

7. Dr F at paragraph 50 reported that the mother expressed “…extreme anxiety at the mere thought of seeing the father let alone possibly having to have some type of working relationship with him because of the child…” and it was my observation that she was extremely distressed during the hearing before me, and particularly so leading up to the father and his sister leaving the courtroom. Although the allegations of family violence have not been tested, I am satisfied that it would not be in the child’s best interests for the mother to have to supervise or even come into contact with the father for the purpose of the child spending time with him and it is difficult to see how the child would cope without the mother.

8. In all of these circumstances, I am satisfied that a relationship with the father is of little or no benefit to the child and in fact may be contrary to his best interests, particularly so given his reliance upon the mother. I propose to accede to make the orders the mother seeks including an order that the father not spend any time with the child. Reserving the question of the child’s time with the father leaves open the possibility of further proceedings, which I am satisfied would not be in the best interests of the mother, who is the child’s primary carer, or the child.  

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 January 2020.

Associate:

Date:  8 January 2020