LIETZAU and LIETZAU
[2024] FCWA 11
•23 JANUARY 2024
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LIETZAU and LIETZAU [2024] FCWA 11
CORAM: BERRY J
HEARD: 9-10, 13-15 FEBRUARY 2023
DELIVERED : 23 JANUARY 2024
FILE NO/S: 1898 of 2017
BETWEEN: MS LIETZAU
Applicant
AND
MR LIETZAU
Respondent
Catchwords:
PARENTING - Where both parties seek sole parental responsibility - Where mother and Independent Children's Lawyer seek children live with mother and spend time with father in accordance with their wishes and as agreed between parties - Where mother currently primary full-time carer for children and father has not spent time with children since September 2021 - Where parties entered into consent orders in July 2017 for father to spend supervised time with children - Where father alleges he was coerced by Independent Children's Lawyer into agreeing to orders - Where consent orders discharged at request of father in October 2017 - Where father has spent limited supervised time with children between July 2017 and September 2021 and refuses to attend mediation - Where father alleges mother suffers from undiagnosed borderline personality disorder and has kidnapped and unlawfully detained children - Where father disputes credibility of mother as witness - Where mother not candid in Court documents as to alcohol consumption in 2016 and hospitalisation in 2017 due to depressive illness - Where father challenges admissibility of Single Expert Witness evidence in respect of mother - Where Court satisfied Single Expert Witness evidence based upon facts established by other evidence - Where parties are [professionals in the same field] - Where father has made complaints about mother [to the Professional Disciplinary Body A] and [about] her legal practitioners to the Legal Profession Complaints Committee - Where father has made complaints about mother's treating medical practitioners to the Australian Health Practitioners Regulation Authority - Court satisfied that father has engaged in family violence against mother - Where children have expressed considered views to family therapist and Family Consultant to which significant weight should be attached - Where mother obtained interim Family Violence Restraining Order against father following trial - Where additional evidence and submissions received following trial pursuant to orders made in September 2023 - Orders made for mother to have sole parental responsibility and for children to live with mother and spend time with father in accordance with their wishes and as agreed between parties - Case turns on its own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms A |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Ms R Milton |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Baily Family Law |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Carter & Wilson (2023) FLC 94-129
Champness & Hanson (2009) FLC 93-407
DL v The Queen (2018) 266 CLR 1
Eastley & Eastley (2022) FLC 94-094
Godfrey & Sanders (2007) 208 FLR 287
Isles & Nelissen (2022) FLC 94-092
J v Lieschke (1987) 162 CLR 447
Jones v Dunkel (1959) 101 CLR 298
Keighly & Keighly (2023) FedCFamC1A 146
Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361
L v P [2022] WASCA 40
Lietzau & Lietzau [2022] FCWA 202
Lietzau & Lietzau [2023] FCWA 263
Lietzau & Lietzau [2023] FCWA 283
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Purnell & Purnell [2011] FamCA 329
Re F Litigants in Person Guidelines (2001) FLC 93-072
Sigley v Evor (2011) 44 Fam LR 439
Wainohu v New South Wales (2011) 243 CLR 181
Whisprun & Dixon (2003) 77 ALJR 1598
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau and Lietzau has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
BERRY J:
Introduction
1The parties are experienced professionals in the same field. Since September 2019, the Respondent father, [Mr Lietzau] (''the father''), has been unemployed.
2The Applicant mother, [Ms Lietzau] (''the mother''), and the father are unable to agree the terms of orders which are in the best interests of their children, [Child A] born [in] September 2009 (''[Child A]''), [Child B] born [in] January 2011 (''[Child B]''), and [Child C] born [in] February 2014 (''[Child C]'') (collectively referred to as ''the children'').
3The children have lived with the mother since the parties separated in July 2016. The only time that the father has spent with the children since separation has either been supervised (on six occasions between July 2017 and October 2017) or in the presence, and with the assistance, of the family therapist appointed by the consent of the parties (on four occasions between July and September 2021).
4At the father's request, the parties entered into consent orders on 6 October 2017, discharging the Consent Orders made on 19 July 2017 for the father to spend supervised time with the children. The father made no subsequent interim application to spend time with the children. In March 2017, the father refused to attend mediation. At no time did the father advance proposals about spending regular time with the children.
5The parties were divorced [in] May 2018. The father contends that the divorce order is not a final order and creates no estoppel because at the ''ex parte hearing'', the mother did not advise the Registrar of the father's contention that she had kidnapped the children and was holding them hostage, and so proper arrangements could not properly be found to be made for the children.[1]
[1] Written Closing Submissions of the Respondent father filed on 15 February 2023, electronic pages 19-20 of 48, [Issue 9] (''Husband's Closing Submissions'').
6Family therapy was terminated at the request of the children in 2021, following their reaction to the father's behaviour.
7The mother is seeking orders including for sole parental responsibility, that the children live with her, and that the children spend time with the father in accordance with their wishes and as agreed between the parties.[2] The Independent Children's Lawyer also seeks orders, including these orders.[3] The father is seeking orders including for sole parental responsibility, that the children live with him, and that the children spend time with the mother, for 12 months, from 5:00pm on Friday until 5:00pm on Sunday each alternate week, and after 12 months, such time be expanded to include school holiday periods as defined.[4]
[2] Minute of Final Orders Sought filed by the Applicant mother on 28 October 2022 (''Mother's Minute of Final Orders Sought'').
[3] Exhibit 12, ''Independent Children's Lawyer's Amended Minute of Proposed Orders on a Final Basis dated 14 February 2023'' (''Exhibit 12'').
[4] Minute of Final Orders Proposed filed by the Respondent father on 3 August 2022 (''Father's Minute of Final Orders Sought'').
8For the reasons which follow, the Court finds that the father has engaged in significant (non-physical) family violence against the mother. He poses an unacceptable risk of emotional and psychological harm to the children. That risk of harm can only be ameliorated, in the circumstances of this case, by making orders substantially as sought by the mother and the Independent Children's Lawyer. Any communication between the father and the children must be subject to their wishes, and as agreed between the parties.
9The balance of these reasons are arranged as follows:
1.Issues for determination (page 7 [to 8]);
2.Specific additional issues raised by the father (pages [8] to 11);
3.Relevant case management prior to and during trial (pages 11 to 13);
4.Why the father's permission to rely upon certain categories of subpoenaed documents was revoked (pages [13] to 16);
5.Relevant case management following reservation of the Court's decision (pages [17] to 18);
6.Evidence permitted to be relied upon (pages 18 to 21);
7.Orders permitted to be sought by the parties and the Independent Children's Lawyer (page 21 [to 22]);
8.Observations of the parties (pages 22 to 29);
9.Observations of the professional witnesses and their evidence:
(1)[Dr C] (pages 29 to [35]);
(2)[Mr D] (pages 35 to [40]);
(3)[Family Consultant G] (pages [40] to 44);
10.Applicable legal principles (pages [44] to [47]);
11.Is the mother at risk of family violence by the father? (pages [47] to [58]);
12.Family Violence Restraining Orders (pages [58] to [60]);
13.Is the father at risk of family violence by the mother? (page [60]);
14.Does the mother pose an unacceptable risk of harm to the children? (page [60] to [61]);
15.Does the father pose an unacceptable risk of harm to the children? (page [61]);
16.May steps be taken to ameliorate or mitigate the risk the father poses to the children? (pages [62]);
17.What weight should be attached to the children's views? (page [62]);
18.Other relevant Section 60CC factors not earlier discussed:
(1)Primary considerations (page [62]);
(2)Additional considerations (pages [62] to [65]);
19.Conclusion and structure of the orders (page [65] to [66]); and
20.Proposed orders (pages [66] to [70]).
Issues for determination
10The parties and the Independent Children's Lawyer filed Papers for the Judicial Officer prior to trial.[5]
[5] Applicant mother's Papers for the Judicial Officer filed on 13 January 2023 (''Mother's Papers for the Judicial Officer''); Independent Children's Lawyer's Papers for the Judicial Officer filed on 23 January 2023 (''Independent Children's Lawyer's Papers for the Judicial Officer''); Respondent father's Papers for the Judicial Officer filed on 27 January 2023 (''Father's Papers for the Judicial Officer'').
11In his papers, the father adopted the statement of issues articulated by the Independent Children's Lawyer. Given the content of the mother's papers, the Court considers that this statement of issues accurately reflects the matters which the Court must determine, as follows:[6]
[6] Independent Children's Lawyer's Papers for the Judicial Officer, electronic page 2 of 10.
(1)parental responsibility (whether the mother or the father should have sole parental responsibility);
(2)with whom the children live and in which residence;
(3)what time the children spend with the other parent and under what conditions;
(4)whether the children are at risk in the care of either parent, the nature of the risk and any mechanisms to mitigate risk;
(5)whether either party is at risk of family violence perpetrated by the other party and the nature of that violence and the risk; and
(6)in relation to the children's views, whether those views represent the genuine views of the children or a reflection of the mother's views, and what weight should be placed on those wishes.
Specific additional issues raised by the father
12In his Papers for the Judicial Officer, the father identified 13 specific issues, with particulars, which he asserted required resolution. The father filed comprehensive written closing submissions, in which he specifically addresses these issues.[7]
[7] Written Closing Submissions of the Respondent father filed on 15 February 2023 (''Father's Closing Submissions'') (on electronic page 22 of 48, the father mistakenly refers to Issue 12 as ''Issue 11'', and on electronic page 23 of 48, the father mistakenly refers to Issue 13 as ''Issue 12'').
13Those issues may be identified as follows (without reference to particulars), adopting the father's own sub-headings:
Procedural fairness issue
(1)Procedural fairness issue as to ''how the father and his children'' can have a fair trial.[8]
[8] Ibid electronic pages 2-3 of 48.
Evidentiary issues
(2)Whether the mother is a dishonest witness who lacks credibility.[9]
[9] Ibid electronic pages 3-11 of 48.
(3)Whether the father is an honest and credible witness.[10]
[10] Ibid electronic pages 11-13 of 48.
(4)Whether the Court should draw a Jones v Dunkel inference[11] that any evidence given by 13 specific witnesses, which the mother failed to call, would not advance her case.[12]
[11] Jones v Dunkel (1959) 101 CLR 298.
[12] Father's Closing Submissions, electronic pages 14-15 of 48.
(5)Whether [Dr E] is a dishonest witness.[13]
[13] Ibid electronic pages 15-16 of 48.
(6)Whether the Affidavit of [Dr F] made on 12 May 2017 be held to be inadmissible as evidence in support of the opinion that it expresses.[14]
[14] Ibid electronic pages 16-17 of 48.
(7)Whether the medical report of [Dr C] be held to be inadmissible as evidence in support of the opinion that it expresses.[15]
[15] Ibid electronic pages 17-18 of 48.
(8)Whether Annexure I to the affidavit of the mother made on 21 December 2022 [the letter from the [Professional Regulator A] to the mother dated 15 December 2022] ''generate[s] any issue estoppel that might affect these proceedings, bearing in mind in particular that the determination it evidences is not a final determination''.[16]
(9)Whether the [divorce] order of the Court made on 20 May 2018 [28 May 2018] ''generate[s] any issue estoppel that might affect these proceedings, bearing in mind in particular that the order is not a final order, as it was made at the hearing that proceeded ex parte in circumstances where the mother did not inform the Registrar of the father's position that she had kidnapped the children and was holding them hostage, and is therefore liable to be set aside''.[17]
Substantive issues
(10)What factual findings should be made, bearing in mind in particular the evidentiary issues listed above, and the parties' respective cases in relation to Sections 60CC, 61DA and 65DAA of the Family Law Act 1975 (''the Act'') (see below).[18]
(11)The father adopts the list of ''issues for determination'' set out in the Independent Children's Lawyer's Papers for the Judicial Officer lodged on 23 January 2023 (but not the Independent Children's Lawyer's case in relation to those issues).[19]
(12)Whether the Court should make the orders sought by the mother.[20]
(13)Whether the Court should make the orders sought by the father.[21]
[16] Ibid electronic page 19 of 48.
[17] Ibid electronic pages 19-20 of 48.
[18] Ibid electronic pages 20-22 and 24-29 of 48.
[19] Ibid electronic page 22 of 48 (Issue 11 is mistakenly labelled 'Issue 10'; not specifically addressed as a discrete issue, but rather addressed by the entirety of the father's Papers for the Judicial Officer).
[20] Ibid electronic pages 22-23 of 48 (Issue 12 is mistakenly labelled 'Issue 11').
[21] Ibid electronic page 23 of 48 (Issue 13 is mistakenly labelled 'Issue 12').
14The father's written closing submissions also covered the following issues:
(a)case law and written law;[22]
(b)evidence given by the three professional witnesses who gave oral evidence;[23]
(c)what the father describes as ''[Child B's] Rules'' [for contact between her and the father];[24]
(d)family violence;[25] and
(e)child support.[26]
[22] Ibid electronic pages 30-31 of 48.
[23] Ibid electronic pages 32-33 of 48.
[24] Ibid electronic pages 34-35 of 48.
[25] Ibid electronic pages 36-42 of 48.
[26] Ibid electronic pages 43-48 of 48.
15The content and detail of reasons will vary according to the nature of the jurisdiction which the Court is exercising and the particular subject matter of the decision.[27] Relevantly, this case is concerned with parenting proceedings under Part VII of the Act.
[27] DL v The Queen (2018) 266 CLR 1 at 12, [32] (''DL v The Queen''), citing Wainohu v New South Wales (2011) 243 CLR 181 at 215, [56].
16The Court is obliged, among other things:
(a)to actively direct, control and manage the conduct of the proceedings;
(b)decide which issues require full investigation and hearing, and which may be disposed of summarily;
(c)to consider, before or when making final orders, if it may assist in the determination of the dispute, to make a finding of fact, to determine a matter or to make an order in relation to an issue arising out of the proceedings; and
(d)to consider whether to give directions or make orders about the matters in relation to which the parties are to present evidence.
17The balance of these reasons will address the father's specific additional issues, only to the extent that such is required to explain a conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.[28]
[28] DL v The Queen at 13, [33]; Whisprun & Dixon (2003) 77 ALJR 1598 at 1610, [62].
18The Court has considered, but will not adjudicate on, every issue and every particular put forward by the father, not because these have been overlooked, but because such adjudication is not necessary to make orders in the best interests of the children.[29]
[29] Banks & Banks (2015) FLC 93-637; L v P [2022] WASCA 40 at [14] and [61]-[62].
19The father's focus on the generic issue of the mother's credit (which occupied nine pages of his closing submissions) did not require the degree of attention that he submitted, because of other findings of fact which the Court has made on key issues. The Court is entitled to accept some and reject other parts of a witness's evidence. So the Court has done, in respect of the mother's evidence.
20The Court intends to provide reasons which deal with the six issues identified by the Independent Children's Lawyer and adopted by the father.
Relevant case management prior to and during trial
21Extensive case management orders were made prior to trial to ensure, so far as possible, that the trial could proceed on 9 February 2023.[30] The trials that were previously listed in these proceedings were vacated by the Orders made on 8 January 2020 and 10 August 2022.
[30] See the Orders made on 7 October 2022, 25 November 2022, 23 January 2023, 24 January 2023, 27 January 2023, 31 January 2023, and 7 February 2023.
22The Court made trial directions and other orders on 7 October 2022, and published its reasons.[31]
[31] See Lietzau & Lietzau [2022] FCWA 202.
23An oral application by the father to adjourn the trial, including on the basis that he was without legal representation following the Court making a Section 102NA order on 7 October 2022, and could not personally cross-examine the mother, was dismissed for reasons given on the first morning of trial.[32]
[32] See paragraph [2] of the Orders made on 9 February 2023; Transcript of proceedings dated 9 February 2023, 17 line 30 to 19 line 35 (''Transcript, 9 February 2023'').
24A separate oral application by the father to adjourn the trial, on the basis of the Court's pre-trial rulings on the admissibility of parts of the father's 987-page trial affidavit, was also dismissed for reasons given on the first morning of trial.[33] The effect of the ruling was to permit the father to rely upon 94 pages of the trial affidavit.[34] The Court is satisfied that the father was not prejudiced by not being permitted to rely upon the material which was struck out.
[33] Transcript, 9 February 2023, 19 line 45 to 22 line 10.
[34] See the Orders made on 7 February 2023.
25The mother's oral application to dismiss aspects of the Minute of Final Orders sought by the father was also determined on the first morning of trial and was partially successful.[35]
[35] See paragraph [1] of the Orders made on 9 February 2023; Transcript, 9 February 2023, 41 line 20 to 42 line 45.
26The Court is satisfied that the father, an experienced [professional], was afforded procedural fairness as an unrepresented litigant throughout the proceedings.[36]
[36] Re F: Litigants in Person Guidelines (2001) FLC 93-072.
27During the trial, the Court made further orders controlling the material which the father was given permission to rely upon, in particular subpoenaed documents.[37] Reasons for revoking the father's permission to rely upon particular subpoenaed documents are given in the next section of this judgment.[38]
[37] See paragraph [1] of the Orders made on 10 February 2023, and paragraphs [1]-[2] of the Orders made on 14 February 2023. The context in which paragraph [2] of the Orders made on 10 February 2023 arose was questions asked during the father's cross-examination, which enlivened his right to re-examine himself about these emails. The father was given an opportunity to gather these emails over the weekend, and they ultimately comprised a set of emails found elsewhere in the evidence, including in Exhibit 8.
[38] See paragraph [2] of the Orders made on 14 February 2023.
28The father was given permission to rely upon a written closing submission.[39]
Why the father's permission to rely upon certain categories of subpoenaed documents was revoked
[39] See the Orders made on 15 February 2023.
29In his Papers for the Judicial Officer, the father included a section entitled, ''Documents produced in response to subpoenas (to be tendered by the [f]ather)''. The following 17 categories of documents were identified (albeit Items 6 and 8 were not sought to be relied upon):[40]
[40] Father's Papers for the Judicial Officer, electronic pages 28-30 of 30.
1.[Medical Centre B]:
Referral letter [from] [Dr H] to [Dr I] dated 9 March 2017.
Report from [Dr I] to [Dr H] dated 1 May 2017.
2.[Dr J]:
Handwritten notes ([two] pages) dated 13 July 2017.
3.[General Practice C]:
[Hospital M] Discharge Documentation ([Child B]) (whole document).
4.[Medical Centre D]:
(The [f]ather will not be tendering the handwritten notes because he considers them to be essentially illegible.)[sic]
Letters [from] [Dr E]Dr E to [Dr K] dated 27 June [2017], 10 May [2017], 20 March [2017], 3 March 2017 (two different letters dated 3 March 2017 – to tender both), [and] 15 February 2017.
Letter [from] [Dr K] to [Dr E] dated 7 June 2016.
Letters from [Dr E] to [Dr K] dated 1 February [2016], 7 November [2016], 20 July 2016 [sic – probably 30 July 2016].
[Hospital E] Emergency Summary dated 27 July 2016.
[Hospital E] Service Triage document – all four pages (including addendum).
Handwritten undated letter from the [m]other to [Dr K] commencing ''Hi [Dr K's first name]'' (two sides of one piece of paper).
Letter [from] [Ms L] to [Dr K] dated 10 May 2016.
Letter [from] [Dr M] to [Dr K] dated 19 February 2014.
5.Department of Human Services:
Evidence of [m]other's ovum donation made without consultation with local medical providers.
6. [not relied upon]
7. [Dr I]:
Handwritten notes headed ''[Mr Lietzau]''.
8. [not relied upon]
9.[General Practice F]:
Progress notes dated Wednesday [9 August 2017], Friday, [18 November 2016] and Thursday, [17 November 2016].
The whole entry relating to [Child C]'s fall out of a tree.
10. Department of Education:
Student enrolment form dated 12 August 2013 for [Child B].
[Ms N]'s Psychometric Assessment Report of [Child B] dated 19 October 2012.
All school reports for both [Child B] and [Child C].
11.[Ms L]:
Handwritten notes (to the extent that they do not duplicate the handwritten notes produced in response to a later subpoena – see Item 16 below).
12.[Dr E]:
All letters and certificates, especially the letter from [Dr E] to [Dr K] dated 20 July 2016 [sic – probably 30 July 2016].
All Consultation Records[.]
All emails from and to the [m]other (including copies of emails to and from persons other than [Dr E])
(Excluding the affidavits and copy letter from [Law Firm C]).
13.[Agency G]
Handwritten notes from both sessions and covering ''with compliments'' slip.
[Item number missing; next Item after 13 is 15]
15.[Medical Centre D]:
(The father will not be tendering the handwritten notes, because he considers them to be essentially illegible.)[sic]
Letters between [Dr K] and [Dr E].
[Hospital E] Emergency Medicine Summary dated 24 January 2018[sic]
(burn injury and treatment).
[Hospital H] Emergency Department Continuation Notes dated 11 August 2018 (fall down a step).
16. [Ms L]:
Whole file of documents produced - handwritten notes, letters, emails, etc.
17.[Dr F]:
Handwritten notes of (obviously incomplete, and therefore misleading) medical history given by the [m]other to [Dr F]for the purpose of his second opinion.
(As per original)
30In light of the submissions that the father made about why these documents were relevant, and in light of the evidence heard by the Court at that point of the proceedings, the Court formed the view that the documents were not shown to be either relevant or sufficiently relevant, or probative, to justify their reception into evidence, for the following reasons:
(a)the father provided no cogent reasons as to why that material was sufficiently relevant to the determination of the current parenting orders which would now be in the best interests of the children;[41]
(b)subject to the specific observations which follow, the historicity of the documents;
(c)even if the school reports for Child C from Semester One in 2016 until 2021 [when the child was five to 10 years of age] show a decline in her performance (as contended by the father), this does not materially impact on the terms of the parenting orders which are currently in her best interests;
(d)even if the medical notes do not disclose the mother reporting the extent of her alcohol use to treating practitioners in and before 2018 (as contended by the father), the mother gave evidence about this use at trial;
(e)none of the medical practitioners (including Dr E) were subpoenaed to give evidence about their notes by the father, and the weight to be attached to the notes would be affected by such absence, especially given the following concession by the father;
(f)the father acknowledged that the material that he seeks to rely upon ''is so vague that it would not be of much assistance to them'' [the medical professionals who have given evidence];[42] and
(g)the wife's ''honesty and integrity'', whatever the father submits about it, does not undermine the observations made by Mr D and Family Consultant G about the children.
[41] Transcript of proceedings dated 14 February 2023, 3 line 40 to 25 line 45 (''Transcript, 14 February 2023'').
[42] Transcript, 14 February 2023, 22 line 30.
31At the time that this ruling was made, the parties had been cross‑examined (in the case of the mother, only by the Independent Children's Lawyer) and Dr C and Mr D had been cross-examined. Family Consultant G gave his oral evidence and was cross‑examined immediately after this ruling was made. Family Consultant G was the final witness required for cross‑examination in this case.
Relevant case management following reservation of the Court's decision
32The Court reserved its decision on 15 February 2023.[43]
[43] See paragraph [4] of the Orders made on 15 February 2023.
33Arising from an interim Family Violence Restraining Order obtained by the mother against the father on 29 May 2023, the father filed an application on 27 June 2023, which was heard and determined by the Court on 28 September 2023, with reasons published on 10 November 2023, on which date further orders were made.[44]
[44] See Lietzau & Lietzau [2023] FCWA 263.
34On 16 October 2023, the father applied, among other things, to discharge the Independent Children's Lawyer, and to seek leave to file written submissions about the relevance of the further evidence permitted to be taken into account by the trial Judge pursuant to the Orders made on 28 September 2023.
35On 29 November 2023, the father applied for the trial Judge to recuse himself (having foreshadowed the application in written submissions filed on 23 November 2023). The Court heard and determined this application, and the father's application to discharge the Independent Children's Lawyer, on 4 December 2023. The ex tempore reasons were published to the parties on 11 December 2023.[45]
[45] See Lietzau & Lietzau [2023] FCWA 283.
36Under cross‑examination at trial, the father acknowledged that he had foreshadowed an application for the trial Judge to recuse himself for apprehended bias if the trial was not vacated, and he elected not to pursue the application.[46]
[46] Transcript of the cross-examination of the Respondent father (10 February 2023) 70 lines 15-20 (''Transcript, Father's Cross-Examination, 10 February 2023'').
37The father filed written submissions on 11 December 2023, addressing the relevance of the further evidence permitted to be taken into account by the trial Judge pursuant to the Orders made on 28 September 2023.[47]
[47] As permitted by paragraph [2] of the Orders made on 4 December 2023.
38To the extent that the father seeks to agitate another ''informal'' application for recusal of the trial Judge in those submissions, the Court has considered the submissions.[48] The ''informal'' application is devoid of merit for the following reasons:
[48] Written Submissions filed by the Respondent father on 11 December 2023, [1]-[34] (''Father's December 2023 Written Submissions'').
(a)the applicable principles are summarised in the Court's earlier decision;[49]
(b)the mere fact that the Court has made several interlocutory rulings in this case that are inconsistent with the father's submissions does not activate the ''double might'' test;
(c)the father's complaints about the Court making procedural orders in Chambers or otherwise without notice to the parties is entirely appropriate and permissible, having regard to the powers reposed in the Court by Division 12A of Part VII of the Act;
(d)there is no logical connection drawn between any facts or matters which might be said to lead the Judge to decide the case other than on its legal and factual merits, and the feared departure from the Judge deciding the case on its merits; and
(e)the question that the trial Judge is required to decide is what parenting orders should be made in the best interests of the children, in respect of the trial conducted between the parties in February 2023 (as supplemented by the evidence and submissions permitted to be relied upon following the Orders made on 28 September 2023).
Evidence permitted to be relied upon
[49] Lietzau & Lietzau [2023] FCWA 283 at [13].
39The mother relied upon her trial affidavit filed on 28 October 2022, and her response to the father's trial affidavit, filed on 22 December 2022.[50] The mother was cross-examined by the Independent Children's Lawyer. Further to the Orders made on 28 September 2023, the Court has received the affidavit of the mother filed on 18 August 2023 (and written submissions filed on 11 September 2023 about the relevance of evidence received by the Court pursuant to those orders).
[50] Mother's Papers for the Judicial Officer, electronic page 2 of 16.
40The father invites the Court to infer, according to the principles in Jones v Dunkel,[51] that any evidence given by the following witnesses would not advance the mother's case: the maternal grandmother, the mother's stepmother, the maternal grandfather, the mother's uncle, the mother's psychiatrist, Dr E, the psychiatrist, Dr F, the mother's psychologist, Ms L, any psychologist who may have treated either Child B or Child C, the Principal of School A, [Mr O], any representative of [School B] (which is alleged by the father to have refused to communicate with him about his daughter, Child B, the mother's former lawyer ([Ms P])), the mother's former barrister (who allegedly appeared for her before the Magistrates Court), and the mother's former lawyer, [Ms Q].[52]
[51] Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321.
[52] Father's Closing Submissions, electronic page 14 of 48.
41The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted that party's case. The failure to call a witness may also permit the Court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in position to cast light on whether the inference should be drawn.[53]
[53] Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361 at 384, [63].
42The Court declines to draw any such inference from the mother's failure to call any of these witnesses. The Court infers that the mother's explanation for not calling these witnesses is that they are not relevant to the resolution of the key issues in the proceedings. The Court agrees.
43The mother's failure to call any of these witnesses does not strengthen any inferences that the father may seek to draw, in light of the evidence which the Court accepts in these proceedings. A litigant has no duty to call particular witnesses, or to procure that any witnesses called by that litigant are asked particular questions.[54] A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.[55]
[54] Ibid at 385, [64].
[55] Ibid.
44The father raises as an issue in these proceedings whether the affidavit of Dr F made on 12 May 2017 be held to be inadmissible as evidence in support of the opinion it expresses. This issue does not arise at trial because the mother does not rely upon this affidavit. The father relies upon the affidavit not for its truth value, but to discredit the mother's case.[56]
[56] Father's Papers for the Judicial Officer, electronic pages 9 and 27 of 30.
45The father also raises as an issue in these proceedings whether Dr E is a dishonest witness. This issue also does not arise at trial, because the mother does not rely upon Dr E as a witness. The father relies upon the affidavit of Dr E filed on 22 May 2017 not for its truth value, but to discredit the mother's case.[57]
[57] Ibid electronic pages 8 and 27 of 30.
46The Court does not accept that affidavits filed by two psychiatrists in 2017, not relied upon by the mother, relevantly ''discredit'' the mother's case in respect of the parenting orders that she is seeking.
47Given the evidence before the Court for consideration, and the findings that the Court intends to make, the Court does not consider that making findings about the issues raised by the father regarding Dr F and Dr E is necessary to make orders in the best interests of the children.
48The father relied upon his trial affidavit filed 1 December 2022 (subject to the Court's ruling on parts of its admissibility) and the affidavit of his sister, [Ms P], sworn on 7 December 2017. The father relied upon other affidavits, identified in his Papers for the Judge, which he asserted were not necessarily truthful, but purportedly discredited the mother's case.[58]
[58] Ibid electronic page 27 of 30.
49The father was cross-examined by the mother's solicitor and the Independent Children's Lawyer. Ms P was not required for cross-examination. Further to the Orders made on 28 September 2023, the Court has received the affidavits of the father filed 27 June 2023 and 13 July 2023, as well as the annexure book filed with the latter affidavit (and written submissions about the relevance of evidence received by the Court pursuant to the Orders made on 28 September 2023).
50Under cross-examination, the Independent Children's Lawyer put to the father, and the father denied, that the reason that he has not filed a trial affidavit from either of his parents is because he knows that such evidence would not assist his case.[59] The Court declines to draw that inference.
[59] Transcript, Father's Cross-Examination, 10 February 2023, 115 lines 5-15.
51The Independent Children's Lawyer relied upon the reports of the following professional witnesses (in chronological order):[60]
1.Family Report of Family Consultant G dated 11 March 2020.
2.Report of Dr C (Mother) dated 15 March 2020.
3.Report of Dr C (Father) dated 15 March 2020.
4.Clinical Psychology Report of Mr D dated 8 December 2020 (''Mr D's first report'').
5.Clinical Psychology Report of Mr D dated 30 November 2021 (bearing a typographical error stating 30 November 2020) (''Mr D's second report'').
6.Child Inclusive Conference Report of Family Consultant G dated 24 October 2022 (in respect of the conference held on 11 October 2022).
[60] Independent Children's Lawyer's Papers for the Judicial Officer, electronic page 1 of 10.
52The reports prepared by Dr C were annexed to an affidavit sworn and filed by her on 20 March 2020.
Orders permitted to be sought by the parties and the Independent Children's Lawyer
53The mother sought orders in terms of her Minute filed on 28 October 2022, save that in closing submissions, the mother's solicitor indicated that the mother:
(a)no longer pursued the orders sought in paragraphs 14 to 16 (in respect of the Australian Scholarship Group);[61]
(b)agreed with the Independent Children's Lawyer that the children's time and communication with their father should be in accordance with their wishes, and as agreed between the parties (by way of an amendment to paragraph 8);[62] and
(c)adopted or did not oppose the orders sought by the Independent Children's Lawyer.[63]
[61] Transcript of the closing submissions of the Applicant mother (15 February 2023) 46 line 45 to 47 line 5 (''Transcript, Mother's Closing Submissions, 15 February 2023'').
[62] Ibid 54 lines 10-20.
[63] Ibid 57 line 30 to 58 line 20.
54The father sought orders in terms of his Minute filed on 3 August 2022, subject to the Court's strikeout of particular parts, and further subject to the particular amendments made by the father during closing submissions (discussed later in these reasons).
Observations of the parties
The mother
55When the mother started proceedings in March 2017, she was not full and frank in relation to the extent of her alcohol use. In her trial affidavit sworn on 28 October 2022, the mother deposed that in 2016, she was experiencing suicidal thoughts and drinking alcohol to excess (up to a bottle of wine per night), all of which led to the diagnosis, and treatment, of a depressive illness.[64]
[64] Trial Affidavit of the Applicant mother sworn on 28 October 2022, [171] (''Mother's Trial Affidavit'').
56The mother says she deposed to this in her original Case Information Affidavit, save to indicate that she did not have any concerns about substance abuse (alcohol or drugs) which impact on the parenting of the children.[65]
[65] Ibid; Exhibit 2, ''Case Information Affidavit of the Applicant mother filed on 27 March 2017'', electronic page 7 of 11 (''Exhibit 2'').
57Nor was the mother full and frank in relation to a three-day hospitalisation in January 2017. This was not referred to in the mother's Case Information Affidavit, sworn a mere two months later, nor in the mother's trial affidavit. In Item 27 of the mother's Case Information Affidavit, she refers to her hospitalisation in July 2016, but not in January 2017.[66]
[66] Ibid electronic page 8 of 11.
58When pressed by the Independent Children's Lawyer, the mother acknowledged that she probably chose not to include reference to the hospitalisation in January 2017 because the father was seeking to have her diagnosed as suffering from borderline personality disorder, and she was feeling incredibly stressed by the allegations and the father's pursuit of her.[67]
[67] Transcript of the cross-examination of the Applicant mother (9 February 2023) 70 line 20 to 72 line 45 (''Transcript, Mother's Cross-Examination, 9 February 2023'').
59In her trial affidavit, the mother also deposed to drinking alcohol, probably on a daily basis, in 2018.[68] In her oral evidence, she said that she disclosed her consumption as a concern to her treating practitioners in 2018 and took a significant break from drinking at all.[69]
[68] Mother's Trial Affidavit, [198] and [201(b)]; Transcript, Mother's Cross-Examination, 9 February 2023, 65 lines 5 to 20.
[69] Transcript, Mother's Cross-Examination, 9 February 2023, 65 lines 5 to 20.
60The mother was hospitalised for a week in 2018, arising from a reaction to a change in medication.[70]
[70] Mother's Trial Affidavit, [184].
61The Court accepts the mother's evidence that she has not been hospitalised for any reason connected to her mental health since 2018.
62On 1 July 2020, the mother emailed her (then) psychiatrist, Dr E, and stated that she had reached some really low points with ''suicidal ideation''.[71] The mother stated that she felt ''quite judged this morning before I could even explain how tough the last couple of months have been''.[72] The Court accepts the mother's evidence that she has not seen Dr E since mid-2020. The Court is satisfied that the mother's relationship with Dr E broke down at this consultation on 1 July 2020.
[71] Exhibit 7, ''Email from the Applicant mother to Dr E dated 1 July 2020'' (''Exhibit 7'').
[72] Ibid.
63On 25 August 2022, and again on 25 October 2022, the Independent Children's Lawyer requested, in writing, that the mother undertake a hair strand test for alcohol.[73] The mother did not undertake the test in compliance with either request, although she ''gave it considerable consideration''. The mother denied that she did not undertake the hair strand test because she knew it would return a very high result for alcohol.[74]
[73] Exhibit 13, ''Letter from the Independent Children's Lawyer to the Applicant mother's solicitors dated 25 August 2022'' (''Exhibit 13''); Transcript, Mother's Cross-Examination, 9 February 2023, 65 line 30.
[74] Transcript, Mother's Cross-Examination, 9 February 2023, 65 line 35 to 66 line 5.
64The Court accepts the mother's evidence that she declined to undertake the hair strand test on both occasions because:
(a)the request was based upon allegations by the father, as confirmed by the content of the letter from the Independent Children's Lawyer to the father's former solicitors dated 25 August 2022;[75] and
(b)the mother considers that the father has been controlling her life by her being required to respond to his allegations for six years, including that she was a kidnapper, was an alcoholic, and has borderline personality disorder, and she was not prepared to agree to this further request, made at the father's initiative, because she was no longer prepared to be subject to the father's control.[76]
[75] Mother's Trial Affidavit, [201(d)]; Exhibit 13.
[76] Transcript, Mother's Cross-Examination, 9 February 2023, 66 lines 5-20.
65The Court accepts the mother's evidence that:
(1)she consumed up to a bottle of white wine each night, in the six months leading up to separation;[77]
[77] Ibid 64 line 45 to 65 line 5.
(2)she was hospitalised for three weeks in [Hospital K], suffering from a severe depressive illness, in July 2016;[78]
[78] Exhibit 2, electronic page 8 of 11.
(3)her decision to separate from the father on 29 July 2016 was not informed or assisted by Dr E or Ms L;[79]
[79] Transcript, Mother's Cross-Examination, 9 February 2023, 63 line 15-25.
(4)she voluntarily surrendered her practising certificate, and did not practice for the balance of 2016;[80]
[80] Ibid 68 lines 10-15.
(5)the mother was severely affected by an email from the father which refers to her failings as a wife, including a lack of ''proper wifeliness'';[81]
[81] The Court is satisfied that this email, characterised by the father as an ''invitation to treat'' in cross‑examination, was sent on 14 December 2016 and is contained in Exhibit 5; the phrase ''proper wifeliness'' featured in the mother's cross-examination on this point (Transcript, Mother's Cross‑Examination, 9 February 2023, 79 lines 40-45), and in the email. Under cross‑examination, the Court clarified with the father his intended meaning of ''proper wifeliness'', and he stated, ''regular sex that was roughly once a week''. While denying that this was a sex schedule, the father went on to state, ''52 times a year is not an unreasonable expectation of a husband, I believe'' (Transcript, Father's Cross‑Examination, 10 February 2023, 39 lines 10-30).
(6)if the mother had known how difficult separating from the father would be, ''I don't know if I would have left'' (at this point during her evidence, the Court adjourned for a short time due to the mother's emotional distress);[82]
[82] Transcript, Mother's Cross-Examination, 9 February 2023, 79 line 50 to 80 line 10.
(7)in 2017, the mother worked for [University L] and lectured in [redacted];[83]
[83] Ibid 68 lines 10-15.
(8)the parties last spoke to each other in 2017;[84]
[84] Ibid 81 line 15.
(9)in early 2018, the mother's practising certificate was reissued, and she worked for [Law Firm D] as in-house counsel for four years and nine months;[85]
[85] Ibid 68 lines 15-25.
(10)she was consuming alcohol nearly daily in 2018;[86]
[86] Ibid 65 line 10.
(11)she currently consumes six to 10 glasses of white wine per week, and this pattern of consumption has persisted since 2019;[87]
[87] Ibid 64 lines 10-20 and 67 lines 5-10.
(12)in response to her expression of suicidal ideation to her psychiatrist, Dr E, on 1 July 2020, she consulted her clinical psychologist, Ms L, and resolved those difficulties;[88]
[88] Ibid 90 lines 20-30.
(13)the mother's relationship with her former psychiatrist, Dr E, was impacted by the father's complaints about her in 2018 and 2019 to the Australian Health Practitioners Regulation Authority (''AHPRA'');[89]
[89] Ibid 91 lines 5-15.
(14)the mother has not engaged with another psychiatrist since she stopped consulting Dr E in July 2020;[90]
[90] Ibid 78 lines 25-30.
(15)the mother then moved to her current role in early 2022, continuing employment as a professional;[91]
[91] Ibid 67 lines 35-45.
(16)she sporadically attends upon Ms L, clinical psychologist;[92]
[92] Ibid 68 lines 45-50.
(17)the mother has a support network, including friends from her school days to whom she has stayed close through adult life, including their children, who are like cousins to Child B, Child C, and Child D;[93]
[93] Ibid 78 lines 35-45.
(18)on a day-to-day level, the mother's network includes school mothers, who she engages with on the sidelines of weekend sporting events;[94]
[94] Ibid.
(19)her alcohol consumption has never impacted upon or prevented her ability to transport or pick up the children from school, take them to sporting events, take them to extracurricular activities, or attend full-time work (including no days taken off because of a hangover);[95]
[95] Ibid 67 lines 10-35.
(20)she is prescribed antidepressant medication and takes Diazepam as required, with sleep difficulties;[96]
[96] Ibid 78 line 10 and 90 lines 10-15.
(21)in terms of medication, the mother is prescribed Cipramil for depression, Ramipril for blood pressure, and Diazepam for anxiety, and all these medications are managed by the mother's general practitioner, Dr K, who the mother has consulted since she was 18 years of age;[97]
[97] Ibid 89 line 50 to 90 line 15, and 91 lines 20-25.
(22)she is the primary full-time carer for the children and also works full-time as a professional;
(23)the mother proactively takes steps to manage her mental health, including engaging with her psychologist (especially when a Court date is pending), exercising, engaging with her children and friends, and working full‑time;[98]
[98] Ibid 77 lines 15-50.
(24)she has found the Court proceedings extremely stressful, and the proceedings have impacted upon her mental health;[99]
[99] Ibid.
(25)the mother withheld her consent to the father inspecting subpoenaed records directed to her treating practitioners from 2017 until 2022, because she did not want him to access confidential records to use against her;[100]
[100] Ibid 91 lines 25-35.
(26)the mother waived her objections to the father inspecting these documents in 2022, ''out of sheer desperation of trying to get this [matter] to trial'';[101]
[101] Ibid.
(27)the mother has no objection to the children speaking directly with their father (save for Child D, whose telephone time would need to be supervised, given his age), but at present, their wishes are that communications pass through the mother;[102]
[102] Ibid 80 lines 30-35
(28)if the father communicates with the mother in a civilised manner, then the mother would not have any difficulty coping with the communications, however if the father maintains his previous pattern of communications, then she will have difficulty coping;[103]
(29)if the father sent an email proposing the time and place to see the children, then the mother would discuss that with the children;[104]
(30)at Child C's request, the mother was present when Child C telephoned the maternal grandparents' home in October 2022, where the father lives, to thank him for a marine biology book (given to Child C by the paternal grandparents at a coffee meeting), and she was told by the paternal grandfather that the father did not come to the telephone, and could not speak to her, and that he had left the house;[105]
(31)since October 2022, the mother and the children have seen the paternal grandparents for coffee roughly once a month;[106]
(32)the mother would facilitate any reasonable request, if such was made, that the children expressed to spend time with the father;[107]
(33)Child B and Child C have photographs of the father in their bedroom;[108]
(34)the good qualities of the father include his ability to help the children with their homework (especially mathematics and science), and his different interests from the mother, which he could potentially share with the children;[109]
(35)Child B started attending School B in 2022 and is receiving a 50 percent scholarship; in 2023, she was in her second year of high school (Year 8), and the mother is solely responsible for payment of the balance of the school fees;[110]
(36)Child C started attending [School C] for her first year of high school in 2023 (Year 7), and she attends School C, rather than School B, because the mother cannot afford to pay further school fees at School B; and[111]
(37)In 2023, Child D was in Year 4 at School A.[112]
[103] Ibid 81 lines 10-15.
[104] Ibid 81 lines 25-30.
[105] Ibid 81 line 45 to 82 line 20.
[106] Ibid 83 lines 30-35.
[107] Ibid 85 line 5.
[108] Ibid 86 line 40.
[109] Ibid 87 lines 5-15.
[110] Ibid 87 lines 20-30, and 88 line 5.
[111] Ibid 87 line 50 to 88 line 5.
[112] Mother's Trial Affidavit, [22].
66The Court is satisfied that the mother's lack of candour in her Court documents about her alcohol consumption in the first half of 2016, and her hospitalisation in January 2017, reflects poorly on her. However, the Court accepts her evidence about her consumption of alcohol at six to 10 glasses per week, since 2019.
67The Court also accepts that the mother's explanation for not undertaking the alcohol test requested by the Independent Children's Lawyer on two occasions in 2022 is truthful, but not satisfactory. Materially, the Court does not infer that the mother's refusal to undertake the alcohol tests is due to any fear that the results will show excessive consumption. The Court accepts the mother's evidence that, if tested, a non-excessive degree of consumption would be reflected.
68The children's recent school reports are in evidence for 2021 and 2022. A perusal of the reports does not disclose any issues of concern, nor were any such issues the subject of submissions. Child B and Child D appear to be academically gifted. All the children received positive remarks from their teachers.[113]
The father
[113] Exhibit 10, ''School Reports for the children in respect of Semester 2, 2022'' (''Exhibit 10'').
69The father's perceptions have been distorted by a fixed belief that the mother suffers from a personality disorder and, together with her treating practitioners and lawyers, is responsible for the ''destruction'' of the marriage. His assessment and analysis of the mother's credit has distracted his attention from considering issues that the Court finds to be more relevant to ascertaining the children's best interests.
70Relevant aspects of the father's evidence are discussed elsewhere in these reasons.
Observations of the professional witnesses and their evidence
Dr C
71The father challenged the admissibility of Dr C's report in respect of the mother, on the basis that the mother provided a misleading medical history to her and did not disclose relevant information to her, including not disclosing a history of the mother's alcohol abuse.[114]
[114] Father's Closing Submissions, electronic pages 17 and 18 of 48.
72In her report, Dr C states:[115]
[Ms Lietzau] has no history of alcohol and drug abuse. She reports that she drinks alcohol socially.
(As per original)
[115] Affidavit of Dr C sworn on 20 March 2020, Exhibited at 2, ''Report – Ms Lietzau', page 29 of 38, [10].
73For the reasons given earlier, the Court accepts that the mother did not give Dr C a candid statement about her previous alcohol use.
74However, for the reasons which follow, the Court finds that this failure does not render Dr C's report or opinion inadmissible. In particular, the Court finds that Dr C's report and opinion are admissible, because they are based upon facts which the Court accepts are established by other evidence, including observations and conclusions reached by Dr C's while she was interviewing the mother.
75Despite challenging the admissibility of Dr C's evidence in respect of the mother, the father amended paragraph seven of his proposed orders in oral closing submissions, on the basis that ''the evidence wouldn't justify a conclusion that she needs therapy for symptoms''.[116]
[116] Transcript of the oral closing submissions of the Respondent father (15 February 2023) 43 lines 5 to 10 (''Transcript, Father's Oral Closing Submissions, 15 February 2023'').
76In assessing the father's case in this respect, the Court accepts that so far as the opinion is based on ''assumed'' or ''accepted'' facts, these facts must be identified and proved in some other way.[117]
[117] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744, [85].
77In this case, the parties and the Independent Children's Lawyer accepted that Dr C was an honest witness with appropriate expertise, who expressed genuinely held opinions.
78The Court accepts Dr C's evidence that:
(1)her conclusion that the mother did not suffer from any identifiable mental illness or disorder was based more on her interview with the mother, than on the mother's email which is quoted in the report;[118]
[118] Transcript of the examination-in-chief of Dr C (10 February 2023) 78 lines 40-45 (''Transcript, Dr C's Examination, 10 February 2023'').
(2)the mother's email to her psychiatrist, Dr E, dated 1 July 2020, which states, ''I've had a tough few months and reached some really low points with suicidal ideation'', does not change her assessment that the mother does not suffer from any identifiable mental illness or disorder as at 15 March 2020;[119]
[119] Ibid 78 line 50 to 79 line 20.
(3)suicidal ideation is frequently associated with the presence of depression, which can appear in an otherwise healthy person who is under stress or been in a difficult situation;[120]
[120] Ibid 79 lines 20-25.
(4)treatment of depression by a psychologist is sufficient if the person is still able to function, by attending to their employment, to their children, getting up in the morning, not losing weight and getting sufficient sleep; additional symptoms may need to be treated by antidepressant medication by a psychiatrist;[121]
[121] Ibid 79 lines 35-45.
(5)treatment of the mother by a psychologist and general practitioner would appear to be sufficient in the circumstances;[122]
[122] Ibid 79 lines 30-35.
(6)when the father attended his appointment, it was apparent that he had researched and applied the DSM-5 criteria in a very concrete and rigid manner; at the appointment he was reading through each and every criterion and applying it in a literal manner, for example, in relation to ''real or imagined abandonment'' [in relation to the mother], the mother told Dr C that the father was not there for her when she needed him, to which the father responded, ''I was in the other room'';[123]
[123] Ibid 80 lines 20-35.
(7)the father could not provide any evidence of unstable and intense interpersonal relationships [between the mother and another person], and the mother's history does not indicate that she fulfils that criteria;[124]
[124] Ibid 80 lines 35-40.
(8)in respect of identity disturbance, the father talked about the mother having low moods, which is not relevant in terms of identity disturbance;[125]
[125] Ibid 80 lines 40-45.
(9)there is no evidence of reckless driving, binge eating or recurrent suicidal behaviour (including the incident at the train station), and none of these matters indicate a recurrency;[126]
(10)borderline personality disorder impacts the way that a person thinks and feels about themselves and others, and causes problems functioning in everyday life;[127]
(11)there is no evidence that the mother is not functioning; she has been functioning for years as a professional as a single parent, she has maintained relationships with her family and friends, she does not self-harm, and she has been successfully treated for depressive episodes in the past;[128]
(12)in order to co-parent his children in a harmonious and productive way, the father must refrain from investigating the mother's alleged borderline personality disorder, or making comments regarding his perceptions of the mother's problems to any party, especially the children;[129] and
(13)if the father continues to hold the belief that the mother suffers from severe personality disorder, and this belief is conveyed directly or indirectly to the children, then this will have a detrimental effect on the children and their relationship with the mother.[130]
[126] Ibid 80 lines 45-50.
[127] Ibid 81 line 10.
[128] Ibid 81 lines 15-25.
[129] Affidavit of Dr C sworn on 20 March 2020, Exhibited at 3, ''Report – Mr Lietzau'', page 37 of 38, [25].
[130] Transcript, Dr C's Cross-Examination, 10 February 2023, 81 lines 45-50.
79In the course of her evidence, Dr C stated:
[The father] does suffer from high functioning autism and people with this condition tend to be very rigid in their way of thinking and hold on to their ideas, almost to the point that they appear to be not reality based. That does not mean that he is psychotic. [It] just…very much confirms the presence of autism spectrum disorder and his emotional difficulties associated with it.[131]
180The mother does, and the father does not presently, have the capacity to provide for the children's emotional and psychological needs.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
181The father has not been child-focussed in his behaviour and conduct of these proceedings since separation.
182In pursuing his orders sought, the father's evidence in cross‑examination revealed that he has given no or inadequate consideration to:
(a)how he could accommodate the children, in circumstances where he currently lives in a bedroom at his parents' house;
(b)how he could financially support the children; and
(c)whether he is able to transport the children to school in a timely manner.
183Neither of the father's parents gave evidence about the children living in their home or at all. The paternal grandfather attended the trial on most days.
Whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings in respect of the children
184The father seeks an order that communications between himself and the mother be monitored through the Our Family Wizard app. The father further seeks an order that these communications be ''viewable'' by the Family Consultant, pursuant to Section 65L of the Act.[253]
[253] Transcript, Father's Oral Closing Submissions, 15 February 2023, 44 line 45 to 45 line 5.
185The Court is not satisfied that this order should be made, for the following reasons:
(1)the litigation has been on foot since April 2017;
(2)he best interests of the children are served by making final orders which close off, so far as practicable, avenues to relist the proceedings; and
(3)the Court finds that the mother will reasonably engage with communications from the father, provided that such communications are civil and child-focussed.
Conclusion and structure of the orders
Parental responsibility
186The Court accepts the submissions of both parties, and the Independent Children's Lawyer, that no order should be made for equal shared parental responsibility. Demonstrated family violence and the evidence in this case persuades the Court that no such order should be made, in any event.
187The Court finds that the mother should have sole parental responsibility for the children, given the high conflict between the parties, and historical difficulties in communication since separation.
Children's living and spend-time arrangements
188The children should live with the mother and spend time with the father, subject to their wishes and the agreement of the parties.
Other parenting orders
189The Court finds that orders should otherwise be made substantially as sought by the Independent Children's Lawyer. Given the terms of the existing Family Violence Restraining Order, and the evidence given by each party in cross-examination that they would personally communicate if required, the Court proposes to make an order pursuant to Section 68Q of the Act.
Proposed orders
190For these reasons, subject to hearing from the parties and the Independent Children's Lawyer as to form, the Court proposes to make the following orders:
UPON the Form 1 Initiating Application filed by the Applicant, [MS LIETZAU], on 27 March 2017 and the Form 1A Response filed by the Respondent, [MR LIETZAU] on 12 April 2017 and upon the Court noting pursuant to Section 68P(1)(a) of the Family Law Act 1975 (Cth), that:
(a)these Orders authorise the Respondent to communicate with the children only if the conditions in paragraph 6 of these Orders are satisfied;
(b)these Orders authorise personal communication between the parties; and
(c)the Family Violence Restraining Order between the parties in matter number [redacted] relevantly prohibits the Respondent from communicating with the Applicant except through an Australian legal practitioner;
the Court orders that:
1.All previous orders be discharged.
2.These Orders are orders to which Section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that any of these Orders are inconsistent with any Family Violence Restraining Order between the parties, including in matter number [redacted], the Family Violence Restraining Order is invalid to the extent of any inconsistency.
3.The Respondent is permitted to personally communicate with the Applicant in giving effect to, and complying with, the terms of these Orders.
4.The Applicant have sole parental responsibility for the children, [CHILD B (''Child B''), CHILD C (''Child C'') and CHILD D (''Child D'')] (collectively referred to as ''the children''), subject to the Applicant doing the following:
(a) advising the Respondent in writing of any significant decisions she proposes to make in relation to the children;
(b) considering any views conveyed to her in writing in a courteous and timely manner by the Respondent; and
(c) advising the Respondent of the decision that she has made and providing him with all relevant information in relation to the decision.
5.The children live with the Applicant.
6.The children spend time with and communicate with the Respondent in accordance with their wishes and as agreed between the parties.
7.In the event that any of the children have a health issue which requires hospitalisation, the Applicant must notify the Respondent in writing as soon as practicable of the nature of the health issue, the treating practitioners, the prognosis and where the child is hospitalised.
8.The Applicant do all acts and sign all documents necessary for the Respondent to receive copies of the children's school reports, newsletters and other communications that parents routinely receive, from the children's schools.
9.Each party must keep the other updated in writing at all times as to their present residential address, and their email and telephone details.
10.Unless agreed otherwise between the parties, the parties communicate in relation to all matters concerning the children by way of email directly between the parties.
11.Each party is restrained and an injunction be granted restraining each party from:
(a) save and except in accordance with paragraph 13 of these Orders, providing copies of any Single Expert Witness report prepared by [Dr C], the reports prepared by [Mr D] or [Family Consultant G], or permitting any other person to do so, to any person or entity other than to their solicitor or Counsel in these proceedings, without first obtaining leave of the Court;
(b) denigrating, criticising or otherwise insulting the other parent to or in the hearing or presence of the children or permitting any other person to do so; and
(c) discussing these Court proceedings or showing the children any document associated with these proceedings or permitting any other person to do so.
12.The orders contained in paragraph 11 shall remain in full force and effect following completion of the proceedings.
13.In the event that the Respondent engages with a counsellor or therapist within two years of the date of these Orders, the Respondent must provide to that counsellor or therapist a copy of:
(a) the reports of [Mr D] dated 8 December 2020 and 30 November 2021;
(b) the [Family Report of Family Consultant G] dated 11 March 2020 and the Child Inclusive Report of [Family Consultant G] dated 11 October 2022;
(c) the report by [Dr C], in respect of the Respondent only, dated 15 March 2020;
(d) a copy of these Orders; and
(e) a copy of the Reasons for Decision.
14.The Applicant (or her authorised agent) be at liberty to uplift the children's Australian passports from the Principal Registrar of the Family Court of Western Australia forthwith upon the making of these Orders.
15.The Applicant is permitted to apply for or renew each of the children's Australian passports without the need for the consent of the Respondent.
16.The Applicant be permitted to retain the children's Australian passports.
17.The Applicant be at liberty to remove the children from the Commonwealth of Australia for the purpose of a holiday subject to the Applicant providing to the Respondent in writing, as soon as is practicable prior to the intended date of departure from Australia, an itinerary, including all flight departure and arrival dates and times, and details of all places at which it is intended that the children or any of them will stay while outside Australia.
18.The Director of Court Counselling be requested to arrange for a Family Consultant, if practicable [Family Consultant G], to meet with the children to communicate the content of these Orders and the outcome of these proceedings as soon as possible after the delivery of judgment, and until such meeting both parties be restrained by injunction from discussing the outcome of these proceedings with the children or referring to the outcome of these proceedings to or within the presence or hearing of the children, or permitting any other person to do so.
19.The parties are granted liberty to apply in relation to the implementation of these Orders.
20.The Independent Children's Lawyer be discharged with effect from a date to be fixed after hearing from the parties.
21.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this Order.
22.In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect their exhibits tendered by them (''their exhibits'') from the Chambers of the Honourable Justice Berry, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the Chambers of the Honourable Justice Berry to arrange the collection of their exhibits; and
(c) in default of compliance with sub-paragraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
23.All material tendered as an exhibit and uploaded electronically by the Court will be destroyed by the Court without notice to the parties on the expiration of 42 days from this Order.
24.In the event of an appeal being lodged prior to the expiration of 42 days, paragraphs 21, 22 and 23 above do not apply.
25.Any application for costs (including costs reserved) must be consolidated in a Form 2 Application with a supporting affidavit and filed and served within 28 days.
26.Subject to the preceding orders, the Form 1 Initiating Application filed by the Applicant on 27 March 2017 and the Form 1A Response filed by the Respondent on 12 April 2017, and all outstanding interim proceedings, be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
JW
Associate
23 JANUARY 2024
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