Golds and Hicks
[2016] FCCA 1535
•24 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOLDS & HICKS | [2016] FCCA 1535 |
| Catchwords: FAMILY LAW − Whether children should spend overnight time with father − whether time should be supervised or with substantial attendance − whether parents able to cooperate in making major long-term decisions. |
| Legislation: Family Law Act1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Applicant: | MR GOLDS |
| Respondent: | MS HICKS |
| File Number: | DGC 2265 of 2014 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 15, 16 & 23 March 2016 |
| Date of Last Submission: | 23 March 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 24 June 2016 |
REPRESENTATION
| The Applicant: | Appearing on their own behalf |
| Solicitor for the Respondent: | Mr Weerappah |
| Solicitors for the Respondent: | Bayside Solicitors | ||
| Ms O’Connell McCormack & Co |
ORDERS
That all previous orders are discharged.
That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2011.
That the children live with the mother.
That the children spend time with the father each alternate Saturday from 10.00am to 4.00pm commencing 2 July 2016.
That the children’s time with the father referred to in the preceding paragraph be exercised with the substantial attendance of any of the following: Ms A, Mr R, Mr A, Mr G and Ms H; on condition that any such person has entered into a signed undertaking to the court that he or she should be in substantial attendance.
That changeover for the purpose of the children’s time with the father take place at the maternal grandparents’ residence.
That the parties utilise a Communication Book for the purposes of informing the other parent of matters concerning the children.
That each party is restrained by injunction:
(a)From denigrating the other party to or in the presence of the children or from permitting any other person to do so;
(b)Discussing family law proceedings with the children.
That the order appointing the Independent Children’s Lawyer is discharged.
That otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Golds & Hicks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2265 of 2014
| MR GOLDS |
Applicant
And
| MS HICKS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant mother and respondent father have two children X born (omitted) 2010 and Y born (omitted) 2011. They are aged six and five. X commenced school this year in preparatory class and Y attends four-year-old kindergarten three days a week. The children live with their mother.
The issues are:
a)Parental responsibility;
b)The father’s time with the children;
c)Risks to the children in the father’s care;
d)The father’s mental health.
The father proposes that the parents have equal shared parental responsibility and that the children spend equal time with each parent from 3.30pm Friday to the following Friday at 3.30pm with arrangements for special occasions.
The mother proposes that the parties have equal shared parental responsibility for the children’s names and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent but that for the other major long-term matters, education, religious and cultural upbringing and children’s health she have sole parental responsibility subject to her consulting the father, both parents making a genuine effort to come to a joint decision and if they cannot the mother have responsibility to make the decision and advise the father. She proposes that the children live with her and spend time with the father each alternate weekend from 10.00am to 4.00pm on either Saturday or Sunday with that time to be supervised by the father’s partner or by paternal grandparents.
The Independent Children’s Lawyer proposes that the parents have equal shared parental responsibility, that the children live with the mother and they spend time with the father as follows:
a)Each alternate Saturday from 10.00am to 4.00pm, and on the completion of six occasions the time shall be extended to 12 noon Sunday on the seventh occasion and every third occasion thereafter, on condition that a person referred to in the following paragraph is present in the same residence as the children between 7.00pm and 7.00am;
b)The children’s time with the father referred to in the preceding paragraph be exercised with the substantial attendance of any of the following: Ms A, Mr R, Mr A, Mr G and Ms H; on condition that any such person has entered into a signed undertaking to the court that he or she should be in substantial attendance.
Ms A is the father’s partner and the others are the grandparents and their partners.
The Family Consultant Ms K recommends the children spend time with the father from 10.00am to 4.00pm each alternate weekend on a Saturday or Sunday with a responsible adult in substantial attendance.
Children’s provisions
Children’s provisions are in Part VII of the Family Law Act1975 (Cth). Section 60B contains the objects and principles. Section 60CA provides that in making a parenting order the best interests of the child is the paramount consideration. Section 60CC has the provisions which the Court must take into account in considering a child’s best interests.
Section 61DA contains a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence or if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. Section 65DAA provides that if there is an order for shared parental responsibility the court must consider whether equal time is in the best interests of the child and reasonably practicable and if not equal time substantial and significant time.
History
The father was born on (omitted) 1975 and the mother on (omitted) 1974. The parties commenced their relationship in about mid-2009. They give different times, the mother 17 August 2009, the father earlier that year. They separated in April 2012 after the father had commenced his relationship with Ms A. They attempted reconciliation later that year and then finally separated in August 2012. Since then, except for a period at the commencement of 2015, the father has lived with Ms A.
The father is a (occupation omitted) and was on restricted duties because of his mental health during the relationship. Currently, he is suspended from duty and receiving a sickness benefit pension. He has an older daughter, A aged 14, who spent time with the father only occasionally during the parties’ relationship and now does not see her father.
The mother is a (occupation omitted). Since separation she has resumed working part-time so that she is absent for three nights at a time on (employer omitted) to and from (country omitted) and is away 12 days in every 56. While she is away the children are cared for by her parents.
The children have lived with the mother since separation. The father saw the children sporadically following separation. The mother became concerned about the father’s behaviour towards her, consulted police who applied for an intervention order naming her and the children. This was made on 20 June 2013. It was unopposed by the father. There has been a history of intervention order applications since, including by the father and Ms A. Currently there is an intervention order naming the mother and both children as the affected persons made on 9 February 2015 and which expires on 8 February 2017.
The father commenced this application on 29 July 2014. Orders made by consent on 8 October 2014 provide for the parents to have equal shared parental responsibility, for the children to live with the mother and for the children to spend time with the father each alternate weekend from 3.30pm Friday until 5.00pm Sunday and each alternate Wednesday from 4.30pm until 7.30pm. The order made provision for Christmas Day and birthdays and for telephone time between 6.30pm and 7.00pm each Tuesday. It provided for the parties to use a communication book.
The application was then adjourned until 12 February 2015 which would follow a child inclusive conference with a family consultant pursuant to s.11F of the Family Law Act 1975 (Cth). The Family Consultant recommended that the time remained as in the 8 October 2014 order. On 12 February 2015 the father did not appear and the mother appeared in person. The application was adjourned until 21 May 2015 with no alteration to the existing order.
In January 2015, the father and Ms A separated. On 2 March 2015 the father attempted suicide. He took sleeping tablets and vodka. He was admitted to (omitted) Hospital early on 3 March 2015. He left the hospital later that day, was found by Ms A and returned by police to the hospital. He remained there for a number of days.
The mother filed an Application in a Case on 10 March 2015 applying to suspend the father’s time with the children and on 17 March 2015 I made an order to that effect and an order appointing an independent children’s lawyer.
On 21 May 2015 I made an order that the parties make arrangements for the father to spend supervised time with the children at a Family Life Supervised Contact Centre and that the time be as nominated by the Centre not less than two hours a fortnight. I ordered that the father undertake a psychiatric report. The report has not been done because the father says he cannot afford it. The order on 24 July 2015 discharged the order for a psychiatric report, fixed the matter for final hearing and provided for the making of a family report.
On 23 March 2016, at the conclusion of the final hearing, I reserved my decision and made an interim order that the children spend time with the father each alternate Saturday from 10.00am to 4.00pm supervised by one of Ms A, Mr A or Mr R with changeover at the home of the maternal grandmother. This was the orders proposed by the mother as a final order.
Supervised time at the (omitted) Children's Contact Service commenced on 24 October 2015. A detailed report from the coordinator shows that the father’s time was, as the Family Consultant says, positive and engaging.
Family violence
Each party alleges the other was aggressive. The mother alleges two specific incidents. She says that when she was about seven weeks pregnant with Y the father and she had an argument one morning in their bedroom about the unplanned pregnancy. She says the father was lying in bed and she was standing close to him. She says the father was ignoring what she was saying and she threw her mobile telephone at him. She says the father kicked her in the abdomen with such force that he pushed her into the wall and she fell to the ground. She says he then got out of bed, grabbed her by the hair and pushed her head once into the wall. He went back into bed to sleep. She suffered a bump and bruises.
She says the father was easily angered and would snap at times which was scary. She says when she was 37 weeks pregnant with Y, their son X would not sleep one night and both parents got up. The father became so angry that he punched a hole in the pantry door.
The father says of the first of these incidents that the mother did throw her mobile phone but he did not kick her or push her against the wall. Of the other incident, he says he slammed the pantry door but did not make a hole.
Hospital records provide corroboration of the mother’s allegations. The (omitted) Hospital records for the father’s admission after a suicide attempt in July 2008 records that he says he has anger management issues and smashes things. He did not hit people. The records for his most recent admission in March 2015 describe him as angry.
The mother’s descriptions of the father’s behaviour and the particular two incidents are convincing. The mother’s throwing of her mobile phone may come within the definition of family violence but the father’s response was completely out of proportion and was family violence. The father’s behaviour on the second occasion in punching a hole in the pantry door is family violence.
The father and Ms A allege aggressive behaviour on other occasions by the mother. In particular the mother found the father and Ms A together in the car park of a McDonald’s restaurant in early 2012. Both the father and Ms A got out of the car and there was an altercation. Ms A alleges that the mother hit her. The mother denies hitting Ms A but admits that she was “verbal” because she had found that the man she loved and the father of her children was having an affair with a 19-year-old. Perhaps the mother’s behaviour, even on her own description, comes within the definition of family violence.
However, the mother’s behaviour is defined, the father’s behaviour on occasions does provide reasonable grounds for believing that he has engaged in family violence and so the presumption of equal shared parental responsibility is rebutted.
Father’s mental health
The father has a history of suicidality. The first recorded is in July 2008 where he had two suicide attempts in seven days. He drank excessive amounts of alcohol and took his girlfriend’s OxyContin. He had further attempts in 2012 and 2014 and then in March 2015. Each was in the context of relationship difficulties and each was by excessive alcohol consumption and drug overdose. In cross examination he said there were more.
The father accepts that he suffers from depression and he has Borderline Personality Disorder. In his affidavit of 15 May 2015 the father says that after he was discharged from hospital in March 2015 he saw Psychiatrist Dr D and Clinical Psychologist Ms M. The father says that with Ms M she diagnosed him with Borderline Personality Disorder and he engaged in a 12 week Dialectic Behaviour Therapy program in addition to 1:1 treatment with Ms M.
The father says that he stopped attending Dr D and subsequently Ms M. He had his files transferred to his general practitioner who has continued to prescribe his medication. He is on Lexapro (40 mg per day) and Valproate (400 mg per day). He ceased therapy with Ms M as he could no longer afford the cost.
Having obtained the consent of the father, Ms K spoke by telephone with Ms M. Ms K reports on her discussion with Ms M as follows:
Ms M confirmed that Mr Golds first attended an intake appointment with her 19th January 2015 and approximately eighteen 1:1 sessions in total, the last being on 24th June 2015. Mr Golds participated in the first of three twelve week modules of Dialectical Behaviour Therapy (DBT) and his last appointment with her was the day following his completion of the first module.
Ms M said she did not formally diagnose Mr Golds with Borderline Personality Disorder (BPD) however she was aware he had been told previously that he had traits of BPD and they discussed the diagnostic criteria which Mr Golds identified with. If he was to be formally diagnosed she considered he would meet the criteria. Ms M explained the (omitted) DBT Centre recommend individuals engaged in DBT for two years, she said this recommendation is based on studies that have evidenced that amount of time is necessary for the therapy to be successful in addressing dysfunctional behaviours. She did not recommend Mr Golds cease his therapy and during their last appointment he did not convey he was not going to continue. She said he would benefit from continuing 1:1 therapy including completing a further two modules. Ms M noted that significant time has passed since she met with Mr Golds however she recalled that he did not show sufficient insight into his BPD related behaviours. Ms M was aware Mr Golds found the cost of the therapy difficult to meet. She had texted him details of the subsequent modules since he stopped attending treatment.
Ms K commented on Borderline Personality Disorder. When challenged in cross examination by the father about her ability to comment she said that she had had much experience with people with Borderline Personality Disorder. In her report she says this:
Borderline Personality Disorder is a disorder characterised by emotional dysregulation, suicidality, self-harm and impulsivity. Psychotherapeutic treatment specifically tailored to meet BDP has been shown to relieve the acute symptoms. It is recommended treatment for BPD is received for at least a 12 month period. The untreated symptoms of BPD and depression are similar in that they can hinder the individual’s ability to parent effectively and therefore hinder the children’s healthy emotional and social development.
Ms K goes on to say:
Contradictions, embellishments and omissions in Mr Golds’ narrative indicate he may not be a reliable historian. If this is found then it would support Ms Hicks’s claims that Mr Golds is untrustworthy and unreliable. It should be noted that despite some concerns at the Child Dispute Conference Ms Hicks had anticipated the parties could secure Final Orders and while she currently continues to struggle to trust Mr Golds she presents as attempting to progress the situation.
Ms K conducted the Child Dispute Conference on 15 January 2015. At that conference the father denied to Ms K that he had a history of suicidality. The father does not accept that he needs further treatment. He says that he knows when he is depressed or down and so can protect the children from his condition. The evidence shows that Ms K’s assessment about contradictions, embellishments and omissions is correct.
The father has not obtained reports from Dr D or Ms M. His explanation is that they will not give reports. That seems unlikely. More likely explanations are that either the father is unwilling to pay for the reports or that he knows that they will not be favourable to his case. Whether either of those is correct Ms K’s report of her discussion with Ms M and Ms K’s assessment of the effect of the fathers Borderline Personality Disorder is not challenged except by the father.
Best interests
The relevant best interest considerations are firstly both the primary considerations, the benefit to the child of a meaningful relationship with each parent and the need to protect the child from harm. The additional considerations relevant are the child’s relationship with each parent, the ability of each parent to provide for the child’s needs including emotional and intellectual needs and the attitude of a parent to parenting.
The mother acknowledges that the children should have a relationship with the father. The father is critical of her for the limited time he had with the children prior to the proceeding commencing. The mother consented to alternate weekend time, including overnight time, early in the process. The reduction came about after a suicide attempt by the father in March 2015. The mother’s concern about the safety of the children with the father is justified.
The report from the Family Life Contact Centre and Ms K’s observations show that the children have a positive and established relationship with the father. The decision what is in the best interests of the children comes down to balancing the benefit to the children of the relationship with their father against the risk to them from the father’s mental condition. The latter includes the father’s ability to provide for the needs of the children and his attitude to parenting.
So far as attitude to parenting is concerned an observation of Ms K is relevant. The father’s suicide attempt in March 2015 was brought about by breakdown of his relationship with Ms A. Ms K observed that the father did not take into account that a consequence was that the children did not see him for some time and then saw them only in the restricted environment of a contact service. This demonstrates an unsatisfactory attitude to the responsibilities of parenting.
The father’s proposal for equal time shows his lack of understanding of the consequences of his mental condition on his relationship with the children. He does not accept that his mental condition does present a risk to the children. This in itself is a risk.
Ms K recommends daytime time only. While her report recommends supervised time she said in her oral evidence that she would accept substantial attendance. She recommended that the Independent Children’s Lawyer remain involved for a period of at least eight months at which point the ICL could obtain a report from the father’s treating mental health professionals regarding his treatment progress. She recommended that there be no increase in spend time until such time as the father has demonstrated that he has and continues to meaningfully engage in therapy to address his mental health concerns.
The application is at the stage where final orders need to be made. It will be up to the father to engage suitable mental health professionals and to obtain from them a report which satisfies the mother the time could be extended and that some form of supervision or substantial attendance is no longer needed.
The experienced Independent Children’s Lawyer recommends some overnight time. The experienced Family Consultant recommends against overnight time. Ms K’s experience includes 10 years in child protection services. Section 60CC(2A) of the Family Law Act 1975 (Cth) requires me to give greater weight to the second of the primary considerations, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence over the first of the primary considerations, the benefit to the child of having a meaningful relationship with both of the child’s parents.
The father’s suicide attempts have followed a relationship breakdown or have involved relationship stress. The hospital records show that the other elements including stresses at work, transfer at work without consultation and demotion. Nevertheless, relationship breakdown is a significant element. The hospital notes for one episode record that the father said he had two relationships, both volatile. At that time, the second of those relationships was the one with the mother.
The father and Ms A commenced their relationship in 2012. They separated for a time in January 2015. The evidence of the father and Ms A about why this happened is not extensive. What the evidence does show is that the father was suspicious, it seems unjustifiably so, of Ms A’s relationship with a fellow (employee omitted). This caused argument and separation.
Ms A gave evidence and impressed as sensible and stable. She is an important figure in managing the father’s relationship with the children. The relationship between the father and Ms A is strong but regrettably, given the fathers past history of relationship breakdown, there must be a risk to the current relationship. Since I am making final orders I have to take this into account. A breakdown in the relationship between the father and Ms A might precipitate another crisis in the father’s life and it would mean that the important presence of Ms A in the children’s life and in managing their relationship with their father would not be there.
In balancing the benefit to the children of their relationship with their father against the risk I must give greater weight to the risk. I accept that Ms K’s recommendation best balances the children’s relationship with the father against the risks associated with his mental health. The children’s best interests are met by having daytime time only with the father with the substantial attendance of a responsible adult. Ms A and the paternal grandparents and step grandparents are accepted by both the mother and the Independent Children’s Lawyer as suitable persons to undertake the task of substantial attendance.
Parental responsibility
An order for equal shared parental responsibility requires the parties to comply with the provisions of s.65DAC. The order requires parents to make a decision about major long-term matters jointly and to consult the other person in relation to the decision to be made about that issue; and to make a genuine effort to come to a joint decision about that issue.
A consideration is the first of the primary considerations, the benefit to the child of a meaningful relationship with each parent. Ms K sees both parents being involved in decisions about the children as an important part of the children’s relationship with the parent. This is a consideration which needs to be balanced against the risk of further litigation if the parents cannot reach agreement, a best interest consideration in itself.
The parents do not communicate directly. They use a communication book and sometimes text messages. The mother has made decisions about schooling and kindergarten without reference to the father. The father’s mental state, his attitude to the mother and his refusal to recognise what he needs to do to improve his mental state are considerations in assessing his ability to act co-operatively with the mother. He proposes equal shared parental responsibility and says that if the parties do not agree they can go to court. Again this does not indicate a cooperative attitude on the part of the father. The best interest consideration of an order that is least likely to lead to the further court proceedings is relevant.
The risk that the parents will not be able to cooperate in making major long-term decisions is not sufficient to take the serious step of removing the father from a role in the parental responsibility. There is no evidence which suggests there will be serious conflict about schooling and if there are major medical matters, both parties have the children’s interests at heart. While the presumption of equal shared parental responsibility is rebutted the children’s best interests are met by the parents having equal shared parental responsibility.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of Judge Phipps.
Date: 24 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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