Hopkins and Radcliffe and Anor

[2016] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOPKINS & RADCLIFFE & ANOR [2016] FCCA 229

Catchwords:
FAMILY LAW – Parenting orders – request for written reasons almost one year after matter dealt with essentially on an undefended basis – Father did not file any material in the two years prior to the trial – best interests of the child where he had been exposed to very significant family violence which led to significant behavioural and learning issues – intervention by Director-General.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1)(a) & (b), 60CA, 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(ca), (d), (j)

Federal Circuit Court Rules 2001 (Cth), Division 13.1A

Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113

Applicant: MS HOPKINS

Respondent: MR RADCLIFFE

Intervenor: ACT DIRECTOR-GENERAL

File Number: CAC 36 of 2010

Judgment of: Judge Neville

Hearing date: 1 September 2014

Date of Last Submission: 1 September 2014

Delivered at: Canberra

Oral reasons delivered on: 1 September 2014

Written reasons delivered on: 15 February 2016 (after Father requested written reasons in August 2015)

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: In Person

Solicitor/advocate for the Independent Children’s Lawyer: Mr M Kamarul

Solicitors for the Independent Children’s Lawyer: Legal Aid ACT

Counsel for Intervenor: Mr K Archer

Solicitor for Intervenor: ACT Government Solicitor

ORDERS

1. The Mother have sole parental responsibility for the child, X (born (omitted) 2005);

2. The child live with the Mother;

3. The child spend time with the Father on one weekend per month, for 2-3 hours at Marymead (or another professional supervision agency agreed between the parents) with the costs of the supervision to be borne by the Father;

4. The Father is not to consume alcohol or be under the influence of alcohol while spending time with the child;

5. Both parents are restrained from saying unkind or unpleasant things about the other to the children, in their presence, or allowing any other person to do so;

6. The child be permitted access to a phone and internet for communication with the Father;

7. The child be permitted to spend time with members of the paternal family as agreed between the paternal family members and the Mother, with the paternal family to ensure these visits take place in the absence of the Father;

8. In three years from the date of this order, upon application by the Father, the head of the Family Consultants at the Canberra Registry of the Court may review the notes from the contact centre and following that, make a recommendation as to whether the Father should be permitted to spend unsupervised time with the child and/or whether the matter should be relisted;

9. The matter is now finalised and will be immediately removed from the docket.

IT IS NOTED that publication of this judgment under the pseudonym Hopkins & Radcliffe & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 36 of 2010

MS HOPKINS

Applicant

And

MR RADCLIFFE

Respondent

And

ACT DIRECTOR-GENERAL

Intervenor

REASONS FOR JUDGMENT

Introduction

1. On 1^st September 2014, the Court made final parenting orders in relation to X (born (omitted) 2005). Both parties were present (both as self-represented litigants), as well as the Independent Children’s Lawyer (“the ICL”), and Counsel for the ACT Director-General. Brief reasons were delivered at that time.

2. Almost one year later in August 2015, the Father requested that written reasons be provided.  These are those reasons, revised from the transcript.

3. This is a long-running parenting matter that began its life in 2010.  It had stopped and started and spluttered a number of times, even to the point where the parties were able to reach interim consent orders in June of 2012.

4. While at different times there has been the prospect of resolution of the parenting contest, and where X has sometimes resided with his Father but more often than not with his Mother, the sad reality is that there is substantial independent evidence before the Court, which not only tells a sorry tale but which makes orders as sought by the Mother (which are largely supported by the ICL and the Director-General) as being in X’s best interests.

5. There are critical reports before the Court, which are as follows:

   (a)The most recent family report, this time from Ms F, dated 29^th August 2014 (Exhibit A);

   (b)A short report in the form of a letter from the (omitted) and (omitted) , dated 11^th February 2014 (Exhibit B); and

   (c)A Child Protection Assessment Report, dated 16^th September 2013 (Exhibit C) 

6. Each report in its own way confirmed the utterly hostile and fraught parenting relationship between the parties.  Indeed, Mr Radcliffe’s brief comments in the course of the attenuated hearing further confirmed the caustic relationship between X’s parents.  Any number of other adjectives is also apposite:  acrimonious, bitter, acidic, dysfunctional.

7. In what follows, I set out briefly the procedural history of the matter, then the primary recommendations from the Reports already noted, which ultimately formed the basis for the final Orders.

Brief Procedural History

1. On 18^th February 2014, the Court made orders fixing the matter for trial, commencing on 1^st September.  Those orders also provided for a timetable for the filing of material which included the provision of a case outline setting out the final orders sought and a summary of the issues in dispute.  All parties were present at the directions hearing on 22^nd August 2014.  It was confirmed on that occasion that the trial was to proceed on 1^st September 2014.

2. The Court was provided with an abbreviated chronology by the ICL.  For current purposes, and omitting dates for the birth of the Father’s children from other relationships, it is sufficient to note the following from it:[1]

   [1] A significantly more detailed chronology is set out in the Child Protection Assessment Report (Exhibit C) at pp.3 – 14.

   i.The relationship of the parties commenced in 2003, with co-habitation commencing in 2005.  X was born in (omitted) 2005; the parties married in (omitted) 2007.

   ii.In 2008 the parties separated.  In the same year, the Mother commenced a relationship with Mr P.

   iii.In approximately May 2009, X began a week about living arrangement with his parents.

   iv.In September 2009, there was an incident which led to an interim domestic violence order being made in the Mother’s favour.

   v.Between September and December 2009 the Mother ended the week about arrangement; she alleged, and the Father denied, that he had a drinking problem.

   vi.Interim orders were made in January for X to live with his Mother and spend time with his Father in a 9/5 arrangement.

   vii.In March 2010 the first family report was released by Mr W in which she recommended that the Father’s time with X be reduced to alternate weekends “due to the hostile and unco-operative relationship between the parents.”

   viii.Each parent filed parenting Applications with the Court in July and August 2010.  Interim orders were made by consent in August 2010 for X to live with the Mother and spend time with the Father.  X was enrolled in (omitted) Primary School in (omitted).

   ix.In November 2010, the Father commenced a relationship with Ms A.

   x.Mother’s daughter, Y, born in (omitted) 2010.

   xi.X’s time with his Father was reduced to 3 nights per fortnight in accordance with the August 2010 orders, following X commencing school.

   xii.A second family report (this time from Ms D) was released in August 2011, which recommended limited time between X and his Father, from Thursday until Monday.

   xiii.In August 2011, the Mother filed an Application in a Case seeking orders to suspend the Father’s time with X because of alleged sexual abuse of him by his older brother, Z (who is one of the Father’s children from a previous relationship).

   xiv.Orders were made in August 2011 for the Father to spend 4 nights per fortnight with X.

   xv.In (omitted) 2011, the Mother’s daughter W is born.

   xvi.In March 2012, there were allegations against the Father that he had assaulted his son Z.

   xvii.Also in March 2012, both of Mr Radcliffe’s sons, V and Z, move to Sydney to live with their Mother.

   xviii.Ms A ended her relationship with Mr Radcliffe.

   xix.A third report (from Ms B) was released in May 2012, which recommended that X live with his Mother and spend each alternate weekend with his Father.

   xx.In May 2012, the Mother separated from Mr P after a significant history of domestic violence.

   xxi.The first final hearing scheduled for June 2012 was vacated and orders made for X to live with his Mother and spend alternate weekends with his Father.  Also in June 2012, X commenced paediatric assessment with Dr B.

   xxii.In May 2013, following a family dispute resolution conference, the parties agreed to vary parenting orders for X to revert to a week about arrangement.

   xxiii.Dr B reported that X’s learning and behavioural issues related not to his ADHD but to his exposure to “a concerning level of conflict and … family conflict and violence.”

   xxiv.In June 2013, X attempted to self-harm while at school.

   xxv.Also in June 2013, the Director-General was asked to intervene in the proceedings.

   xxvi.X attended only 3 days of school in term 3 in 2013.

   xxvii.Father’s Day 2013 was the only and last time that X and his Father spent time together until interviews for the family report in August 2014.

   xxviii.In February 2014, orders were made for X to attend (omitted) Primary School.

The Trial

1. As earlier noted, orders were made in February 2014 fixing the matter for final hearing.  Those orders included directions for the filing of material in preparation for the trial.  A directions hearing was held on 22^nd August 2014, at which all parties were present; it was confirmed that the trial was to proceed.

2. At the date of the trial, in view of the Father not having filed anything, indeed nothing had been filed by the Father since 2012, I was tempted to allow a limited form of trial.  The Father attended the trial but no relevant explanation for the non-filing of material was provided.

3. Initially, there was a discussion as to whether there should be a limited form of trial with the Father being able to provide brief oral evidence.  Both the ICL and the Director-General opposed such courses.  The ICL and the Director-General said that in view of the Father’s non-compliance with orders, the matter should proceed as if on an undefended basis.[2]  Ultimately, I acceded to this course, with the Father being able to make brief oral submissions, which really came in response to various questions from the Bench.

   [2] Among other places, see Federal Circuit Court Rules 2001, Division 13.1A.

The Reports

1. I note the following, as summarily as possible, from the Reports to which I have referred.

2. It is important, in my view, to set out in full, the evaluation section of Ms F's Family Report, dated 29^th August 2014 (Exhibit A), and the recommendations that flowed from it.  Those parts of the Report stated (beginning at par.70):

   [70] The current dispute revolves around X who is now 8 years of age and with which parent he should reside, and when and how he spends time with the other parent. The matter has a long history in the Court commencing in 2010 and X has experienced many changes in his care arrangements. Central to this dispute are the allegations of family violence and the negative and hostile relationship between the parents. The information available from a wide range of sources indicates that X has been exposed to and experienced family violence, first between his mother and father and then between his mother and her subsequent partner, Mr P.

   [71] The information available suggests that X has experienced multiple risk factors when his care is shared by the parents such as exposure to ongoing parental conflict and family violence, alcohol misuse by the father, inappropriate discipline by the father, allegations by CPS regarding inadequate and inappropriate care of the two older children by the father and alleged inappropriate behaviour from Z. The traumatising effects of these risk factors on X is reported to be evident X’s affect and behaviour, documented by previous Family Reports, OCYFS and previous school records. For example, X’s presentation and history of behaviours while at (omitted) Primary School in (omitted) as documented in the letter from the (omitted).

   [72] X will need stability in his home and school environments to begin to redress the detrimental effects of his early childhood experiences. This cannot be achieved if he is required to move between his parents’ homes and he needs to live with one parent only. The parents in high conflict are unable to communicate or cooperate effectively enough to support a shared care arrangement that is in the best interests of the child. The mother’s report suggests that X is benefiting from a change of school which is supportive and conveniently located close to the mother’s residence.

   [73] The mother appears to be aware of her shortcomings as a parent, at times not exercising sufficient boundaries and guidance, and is working cooperatively with the school and CPS to support X’s particular needs and facilitate his healthy development. Her comments demonstrate an insight into X’s challenging behaviours and her approach appears appropriate for X’s needs. X’s comments and observations of him for this assessment suggest he has a positive relationship with his mother and he feels secure in her care.

   [74] The father’s history of parenting Z and V as detailed in AFP and CPS records is of concern. It is concerning that the father accepts no responsibility for the harm X has suffered and seeks to blame the mother and CPS for failing in their duty of care. His unwillingness to accept responsibility suggests the father is unlikely to have changed his behaviours of the past in relation to his alleged excessive consumption of alcohol, his care of the children and his approach to discipline.

   [75] The father appears to lack insight into how his actions as a parent have contributed to the difficulties faced by X. This lack of understanding of X’s needs means that X will likely continue to be at risk in the father’s care. His lack of understanding of X’s [needs] was demonstrated during interviews for this assessment when the father believed it appropriate that Z should spend time with X.

   [76] In the circumstances, the mother seems best able to meet X’s needs and he should live primarily with her. Given the safety concerns for X in the care of the father any time spent with the father should be supervised. Due to the parents’ hostile relationship and the mother’s apparent agitation when the father is present, changeovers should happen in a prescribed manner. Contact of any kind between the parents will be destabilising for X and his development.

   [77] X appears to have a positive relationship with his two younger sisters, [and] A and V. Reports of the mother suggest that in the past X has imitated Z’s behaviours, such as self-harming and disruptive behaviours in school. Z has a history of troubled and disruptive behaviour and by reports of the father his negative and inappropriate behaviours are the reason Z now resides with him rather than with his mother in Sydney. Z has allegedly behaved in a threatening manner towards X and X’s comments indicate that he is concerned for his safety in the presence of Z. For these reasons, it is recommended that X spend no time with Z.

   RECOMMENDATIONS

   [78] That X lives with the mother.

   [79] That X spends supervised time with the father and V of 2-3 hours once a month on the weekend that V spends time with the father, as can be arranged with the Marymead Contact Centre.

   [80] That X has no contact with Z.

3. In the letter from the (omitted), dated 11^th February 2014 (Exhibit B), relevantly stated:[3]

   … the school does harbour some concern that having X in proximity to his father may not be in the best interests of the child.  On at least one occasion last year, X’s father demonstrated aggressive tendencies that frightened the staff at (omitted) School.  X’s father has asked the school to cease communication with him.  The school has respected the father’s request….

   [3] See also the discussion about this letter, in the light of the Father’s persistent claims during the trial about the Mother’s [alleged] lies to the Court and to all others, which (in the Father’s view) consistently resulted in adverse consequences for X’s relationship with his Father, at Transcript (1^st September 2014) pp.10-12.

4. From the earlier Child Protection Assessment Report, dated 11^th September 2013 (Exhibit C), the following should be noted. 

5. First, after recording the problems regarding X’s education (at pp.15-16), and his emotional and behavioural development (at pp.16-17), the Report concluded (emphasis added):[4]

   It is highly unlikely to be coincidence that Mr Radcliffe’s relationships with three women have all ended due to alleged violence.  It is recommended that Mr Radcliffe seek some support around relationship skills and gain insight into domestically violent relationships.  Mr Radcliffe would benefit from some anger management strategies and impulse control.

   It is the view of Care and Protection at this time that X would be better suited to reside in the primary care of his Ms Hopkins who as previously remarked is the better of X’s parents to meet his ongoing needs.

   In summary it is the Director-General’s view that X reside in the primary care of his Mother, as she has been assessed as capable of meeting X’s ongoing needs.  In no circumstances does the Director-General feel that the Father is appropriate to be X’s primary carer and does not support any order that has X residing with Mr Radcliffe.  Should the Director-General learn that X has been placed in the care of Mr Radcliffe, or that Ms Hopkins is not meeting X’s ongoing needs the Director-General will intervene and seek to place X in out-of-home care through orders made in the Children’s Court.

   [4] Child Protection Assessment Report, Section 28: pp.29 – 30.

Consideration & Disposition

1. Even in circumstances where, as here, the Court proposes to deal with a matter effectively on an undefended basis, the primacy of the child’s best interests remains critical.[5] In determining what orders are in X’s best interests, the Court must, to the degree that it can in the circumstances, including the state of the evidence, have due regard to the prescriptions in Part VII of the Act.

   [5] See Family Law Act 1975 (“the Act”) s.60CA.

2. In this regard, the Court must be guided by what is contained in the Reports that have been admitted into evidence.  From them, and in particular those sections recorded in these reasons, the Court may note that the following matters are of particular concern or relevance:

   (a)The need to protect the child from family violence, of which there is a significant history (s.60CC(2)(b) and (2A));

   (b)The benefit to the child of having a meaningful relationship with both parents, while ensuring the proper protection of the child, and to the degree that such parenting orders are in the child’s best interests (ss.60B(1)(a) & (b), 60B(2)(a) & (b), 60CC(2)(a) & (b));

   (c)The importance of X’s relationships with his siblings – on his Father’s side and on his Mother’s side of the family (s.60CC(3)(d));

   (d)The Father’s inability or refusal to engage properly or appropriately in the court process by his failure to file material, including a minute of orders sought, and filing nothing since 2012, as well as his failure to engage with X’s school (s.60CC(3)(ca));

   (e)The history of family violence referred to in the affidavit material before the Court but especially in the Reports – Exhibits A & C (s.60CC(3)(j)).

1. In the circumstances set out in these reasons, in my view, it is/was appropriate to deal with the matter on an undefended basis. 

2. I accepted the submissions that were made by the ICL, and also by Mr Archer, Counsel on behalf of the Director-General, to the effect that the matter needed to be finalised rather than to drag on endlessly, as it had done for many years.  It needed finality, and the child (as well as the parties) needed certainty and a degree of stability about parenting orders.  As well, both the ICL and the Director-General submitted that Mr Radcliffe had had more than ample opportunity to file material, he had not done so over a significant period of time, and thereby he had forfeited any further indulgence from the Court. 

3. In all of the circumstances, in accordance with s.60CA of the Act, the Court obviously must make orders that it considers to be in X’s best interests. Because part of those orders provides for sole parental responsibility to repose with the Mother, it is unnecessary to consider any other parts or sections of the Act.

4. One of many tragedies that attend this matter is the fact that in the Family Report of 2014, the Family Consultant records the warm interaction between X and his Father when they met at the Court, having not seen each other for many months.  It would seem – I do not make any formal finding about it – that perhaps the bitterness that Mr Radcliffe feels towards Ms Hopkins, and/or perhaps also by the protracted proceedings, have not only coloured his judgment and assessments, but also made it impossible for him properly to engage in the process required by the Court, which has been obviously to his disadvantage if not detriment.  Among other things, apart from his constant allegation that the Mother has lied and by implication manipulated all evidence before the Court, there was simply no assistance from Mr Radcliffe in terms of (a) any relevant evidence, and (b) any orders sought provided by him – other than for X to live with him. 

5. In the light of the very strong comments by the Director-General in the 2013 Report (Exhibit C) warning that, if X went to live with his Father, the child would be removed from that situation and placed in care, and the other recommendations before the Court (especially from the family consultant, Ms F in her most recent report – Exhibit A), the Court simply had no relevant material from the Father.

6. Further, in my view, it would clearly not be in X’s best interests to be placed in care.

7. All of what has been recounted is a tragedy both for Mr Radcliffe, but it is particularly a tragedy for X.

8. In all of the circumstances, given that the ICL supports them, as does the Director-General, I propose making orders as sought by the Mother, save for the additional requirements (as sought by the Director-General) that the notes from the contact centre are to be reviewed by the head of the Family Consultants at the Court in three years’ time.  Subject to any recommendations that the head of the Family Consultants makes, an Application may then be made by the Father, but with the added proviso that the leave of the Court would still be required for that Application to proceed.

9. One final comment is apposite in the circumstances here where there has been a very significant level of very acrimonious litigation over a significant period of time.

10. In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[6]

    There are few greater evils in family law than recurring litigation about custody and access.  It is detrimental to the child, particularly so if [she] is old enough to appreciate that [her] parents are in legal conflict.  It saps the mental, emotional and financial resources of the parties.  It taxes the resources of the court and of the community.

    [6] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.

11. One might hope (reasonably so is another question) that the parents might cease their protracted and bitter contest in the best interests of their son who has been caught in the middle of this rancorous and caustic contest for far too long.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:     15 February 2016