Linsdell and Linsdell
[2018] FamCA 596
•9 August 2018
FAMILY COURT OF AUSTRALIA
| LINSDELL & LINSDELL | [2018] FamCA 596 |
| FAMILY LAW – CHILDREN – Best interests of the children – Where the father has disengaged with the proceedings – where the father has been violent towards the child – where the father treats one child differently to the others – where there are concerns in regards to excessive discipline – where the father has limited insight into appropriate behaviour when in the presence of his children – where it is in the best interests of the children to spend no time with the father. |
| Family Law Act 1975 (Cth) ss 60CC, 61C(1), 61DA, 61B |
| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 |
| APPLICANT: | Ms Linsdell |
| RESPONDENT: | Mr Linsdell |
| FILE NUMBER: | PAC | 1244 | of | 2016 |
| DATE DELIVERED: | 9 August 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 19 June 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Higgins Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance by and for the Respondent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the mother have sole parental responsibility for the care, welfare and development of the children W born … 2004, X born … 2007, Y born … 2011 and Z born … 2013 (“the children”).
That the children live with the mother.
That the children spend no time with the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Linsdell & Linsdell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC1244/2016
| Ms Linsdell |
Applicant
And
| Mr Linsdell |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 13 year old W, 11 year old X, seven year old Y and five year old Z (“the children”) the children of Ms Linsdell (“the mother”) and Mr Linsdell (“the father”).
The parents began living together in 2002 and separated on a final basis in June 2015.
The mother initiated these proceedings in March 2016 in a Local Court. The proceedings were transferred to the Family Court of Australia where they were identified as within the Magellan Protocol.[1]
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In her Initiating Application the mother seeks sole parental responsibility for the children, that the children live with her and spend no time with the father.
The father originally sought that the parents have equal shared parental responsibility for the children, that the children live with the mother and spend time with him during school terms each alternate weekend and one midweek overnight and half of each school holiday period.
The father’s non-attendance
On 15 March 2016 the mother filed an Initiating Application in a Local Court seeking urgent interim orders. On 17 March 2016 the matter was transferred to the Family Court of Australia.
On 15 June 2016 the court made interim orders by consent that the mother have sole parental responsibility for the children, that the children live with her, that the father be restrained from taking any of the children into his care or control, and from approaching the children at school/or pre-school or attending within 100 meters of any school or pre-school attended by the children.
On 27 September 2016 the parties attended upon a Family Consultant for the purposes of the Child Responsive Program.
In March 2017 a Family Report was ordered. The parties attended on a Family Consultant for interviews on 16 June 2017 and the report was released to the parties in July 2017.
The father ceased engaging in the proceedings in late 2017 after directions were made in preparation for the final hearing.
On 23 November 2017 the proceedings were listed for a compliance check. The father did not appear and it was noted that he had not filed an Amended Response or affidavits in accordance with the trial directions. The time in which the father was to file an Amended Response and affidavits was extended and the mother’s solicitor was ordered to advise the father in writing of the orders and that the consequence of non-compliance with the orders and his non-attendance at the next court date would cause the matter to be listed for an undefended hearing.
On 25 January 2018 the matter was listed again for a compliance check. Again, the father made no appearance and had not complied with court orders to file documents. The matter was then listed for 20 March 2018 before me.
On 20 March 2018, the father made no appearance and had not filed any documents. The matter was listed for a possible undefended hearing on 19 June 2018.
On 19 June 2018 there was no appearance by or on behalf of the father. On that date the mother sought final orders that she have sole responsibility for the children the child and that the children live with her and spend no time or communicate with the father. The Independent Children’s Lawyer supported the orders sought by the mother and sought a further order that the father be restrained from approaching the children at school/or pre-school or attending within 100 metres of any school or pre-school by the children or any one of them.
The mother sought that the Court proceed to deal with the matter to finality in the absence of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[2], and to the principles for the conduct of child-related proceedings[3], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[2] [2014] FamCAFC 14
[3] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, any affidavits previously filed by the father were not read.
Background
The mother, who is 35, began living with the father, who is 43, in about 2002. The parties married in 2009 and separated on a final basis in June 2015.
The parties have four children together who are now aged between 13 and five.
The father has a child of a previous relationship (“the father’s oldest child”) who is now aged 17. The father’s oldest child spends regular time with the children
Following separation the children lived with the mother and spent time with the father approximately twice per week until January 2016 when the mother ceased making the children available to the father, due to the second child, a boy, then aged nine sustaining an injury allegedly caused by the father.
The mother does not assert that the father was physically abusive towards her during the relationship but she does claim that he sexually assaulted her on numerous occasions. The mother also alleges that the father was verbally abusive towards her and threatened her with physical violence.
In or around 2012 the mother alleges that the father began punishing the second child then aged about five with excessive physical force. She deposes that the father frequently hit this child. The mother contends that the second child has been severely emotionally affected as a result of being subjected to the father’s aggression and violence.
At the age of eight the second child began making threats to take his own life. The mother deposes that on one occasion he tried to ride a bike in front of a car.
In 2014 the father threw a chair at the second child’s back causing him to stumble forward and bash his head on the kitchen bench. The mother reports that the child had bruising to his back and head.
The mother also deposes to the father’s aggression towards the other children. On one occasion the mother says that the father kicked the eldest child’s legs out from under her, causing her to fall to the ground. Once she was on the ground he kicked her.
The mother also deposes that on numerous occasions the father was verbally abusive towards the eldest child, calling her a “worthless cunt” and bitch”.
The mother deposes to the father’s violence towards others to which the children were exposed. In April 2015 shortly before separation the father was charged with common assault, arising out of an incident in which he threatened the driver of another vehicle and grabbed the driver around the throat and shook him in the presence of the mother and children. Although both the father and mother denied the assault when questioned by police, the father was subsequently convicted of this offence.
The violent and abusive behaviour of the father culminated after separation. In January 2016, the mother alleges the father smashed the second child into a wall while the children were in his care. The mother ceased making the children available to the father following the incident and reported the assault to the police. The police sought an Apprehended Domestic Violence Order (ADVO) against the father for the protection of the mother and children. A final order was made in a Local Court in January 2016.
The Project Magellan Report[4], dated 6 May 2016, indicates that the mother also reported this incident of alleged physical abuse to the Department of Family and Community Services (“the Department”) in January 2016 and again made a report in February 2016. It appears that the Department liaised with the mother who ensured the child obtained medical attention.
[4] A Magellan report sets out the involvement of the Department of Family and Community Services with the family.
The Project Magellan Report noted that the Department considered the mother to be protective of the children and did not have concerns about her parenting capacity.
The father was charged with common assault in relation to his actions towards the second child January 2016. The father pleaded guilty to the assault and was also dealt with for a breach of the previous good behaviour bond. The father was convicted and placed on a further good behaviour bond which included 12 months supervision by the NSW Probation Service including in relation to anger management.
Following the incident the mother ceased making the children available to the father. In June 2016 interim orders were made by consent of the parties for the mother to have sole parental responsibility for the children, for the children to live with the mother and orders restraining the father from having time with the children or from approaching their school/pre-school.
In around mid-2017 the eldest child then aged 12 was suspended twice from school for physical violence.
The eldest two children attend weekly therapy with a counselling service.
The mother deposes that the third child has experienced frequent incidents of incontinence and the doctor suggested it was a result of stress.
The Family Report
For the purposes of the Family Report a Family Consultant assessed the family members over a day, which included observing the children in their interactions with each parent. The Family Consultant is a qualified and experienced psychologist and had access to subpoena material and the parties’ filed documents. The Family Report is discussed at greater length in these Reasons.
The Family Consultant observed the children interacting with their father and observed that he treated the second child differently from his siblings. For example he hugged and kissed the other children at the conclusion of the observation session and did not hug and kiss the second child. The child also reported to the Family Consultant that the father treated him differently than his siblings. The Family Consultant was concerned that this may put this child at a higher risk of harm than the other children.
The Family Consultant considered the second child to be an insightful boy, but not at an age of development where he would be able to manage his safety without support. If the father was to be abusive of this child, as he has been in the past, then this would negatively affect the child’s self-esteem and other aspects of his mental health. The second child’s history of self-harm and behavioural difficulties put him at a particular risk in this regard.
In the report the Family Consultant recommended that parental responsibility be held by the mother if the court was to find that the mother has experienced family violence as she alleges. The Family Consultant also recommended that if the father was found to have exposed the children to sexually inappropriate behaviour then they should spend no time with him. It was suggested that if the father had made significant changes to his behaviour and attitude it was recommended that he spend interim supervised time with the children and then graduate to unsupervised time. She also recommends that if the court finds that the father poses an unacceptable risk of harm to the children in terms of being unable to manage their behaviour in a non-abusive manner then the court should consider the children spending supervised time with the father four to six times a year.
Having regard to the Family Consultant’s expertise, the nature of her assessment and lack of challenge to her opinions I accept the opinions of the Family Consultant and I attach significant weight to them.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
[5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[6] (2007) Fam LR 518
[7] [2006] FamCA 994
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
However, this consideration has not been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Although the children not having a relationship with their father may have a negative effect on their identity formation, ability to form and maintain relationships and self-esteem, greater weight must be attached to the need to protect the children from harm.
The orders sought by the mother would not see the children develop a meaningful relationship with their father. However, the father must be taken through his failure to participate in these proceedings to accept that the children will not receive the benefit of having a relationship with him in the future.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This consideration looms large in this case. I am satisfied that the father has perpetrated violence against the second child and has been psychologically abusive to the mother and children.
The father has a history of abusive behaviour. The father has demonstrated poor capacity to maintaining his patience with the children, particularly the second child and has at times used excessive force to punish them. One particular incident in January 2016 led to the father being convicted of a common assault charge and an ADVO being made against him for the protection of children.
The Family Consultant considered that the extent to which the father has changed his behaviour through a course known as Taking Responsibility is untested. It may only become clear as time passes and the father is able to deal with stressful situations without violence or abuse. However, to allow the father to continue to spend time with the children exposes them to the risk that he will respond with aggression to difficult situations.
The Family Consultant considered the harm to the second child arising from physical abuse in particular:
If [the child] experiences [the father] as he did previously, this is likely to be extremely difficult for [the child] to manage. It may negatively affect his self-esteem and other aspects of his mental health. It is noted that he was reportedly experiencing behavioural issues and threatening self-harm after the initial incident with [the father]. While these issues are not current for [the child], should he be harmed again by [the father], or perceive that he is at risk of being harmed, it is likely to have a significant adverse effect on his mental health.
The mother has reported a history of sexual assault, allegedly perpetrated by the father. She claims that the children witnessed this as well as the father being verbally abusive towards her. The Family Consultant considered the harm this would expose the children to as follows:
If [the father] has exposed the children to sexual violence, as alleged by [the mother], then it would be considered that he has directly abused the children by exposing them to this. Such behaviour is problematic in at least two ways, firstly exposing the children to sexual violence and secondly, constituting a threat to a caregiver on whom they are reliant. Serious concerns would be raised about his ability to act protectively of the children and not act in a manner that is harmful to them, if there is substance to these allegations. If the Court makes this finding, it is recommended that [the father] spend no time with the children.
The mother has also alleged that the father masturbated in the presence of the children.
The Family Consultant considered that if found to be valid this allegation seriously puts into doubt the father’s capacity as a parent:
If accurate, it would raise serious concerns about [the father’s] ability to act in an appropriate manner in front of the children and place their needs above his. The children may be at risk of being exposed to inappropriate behaviour which may emotionally harmful to them, through contact with [the father] in this circumstance.
It did not appear that allegations were being made that [the father] was experiencing a sexual desire for the children or about the children, but that he participated in sexually inappropriate behaviour in front of the children without thought as to the possible impact on them. This is highly concerning behaviour and suggests a complete lack of insight into the children’s needs and well-being.
Given the mother’s evidence as to other matters which is consistent with a pattern of aggressive behaviour, the father’s history of criminal convictions and in the absence of any material contradicting these allegations, I am satisfied that the father sexually abused the mother in the presence of the children and behaved in a sexually inappropriate manner. In light of these findings I have serious concerns in regards to the father’s ability to act in a manner appropriate with children and if such conduct were to occur in the future it is likely that the children would be harmed emotionally as a result.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The oldest child, a girl of 13, expressed no interest in seeing her father. When assessed by the Family Consultant she told her that the father made her feel “scared” when he lived with them. The Family Consultant observed her to be warm and affectionate with the father during observations, however this child stated that there had been “nothing positive” about seeing her father. This child did express that if the father’s behaviour had changed there was a possibility that she would see him again, but would feel better if somebody else was present.
The second child, a boy aged 11 expressed an interest in seeing his father to the Family Consultant, but qualified that he didn’t “want to get yelled at”. However, this child said that even if the father had changed and learnt from past mistakes he would continue to feel sad for a while.
The third child, a girl aged seven, expressed only positive feelings at seeing her father and had no hesitations when asked if she wanted to see him again.
Given the age of eldest two children some weight can be attached to their views. So far as the third child is concerned I attach little weight to her views where the need to protect the children from harm is such a weighty consideration.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
The children (in particular the two eldest) appeared to the Family Consultant to have a nuanced view of the father. They were able to identify positive attributes about the father, while also being fearful of his behaviour when angry. The two eldest children expressed an interest in speaking to the father about his past treatment of them. The Family Consultant advised that if they were to do so it should be done within a therapeutic setting and only if the father was willing to take full responsibility for his past behaviour.
The children have not spent time with the father since January 2016.
There is a concern that the father shows unequal treatment to second child as compared to the other children, a fact that was observed by both of the older two children to the Family Consultant. In her report the Family Consultant commented:
If [the father] does have different feelings towards [the child] than the other children, this may place [the child] at a higher risk of harm than his siblings, should [the father] perceive that [the child] has behaved in an unacceptable manner. This may occur if [the child] does something minor, for example, and [the father] over reacts, simply because [the child] was the child misbehaving.
The Family Consultant held no concerns in regards to the children’s relationship with the mother.
The children also have a good relationship with the adult child of the father’s from a previous relationship. The mother facilitates this relationship.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The mother and the father shared day-to-day and long-term decision making in regards to the children until the parties’ separated in June 2015. The father remained involved in the children’s lives until January 2016.
Although the father has pursued orders to spend time with the children and sought equal shared parental responsibility for them he has not spent time with the children since January 2016 and has ceased to participate in these proceedings. In doing so the father can be taken to be forfeiting the opportunity to be involved in decision making for the children and to spend time with the children.
In my view this is an extremely weighty factor in these proceedings.
Likely effect of change in the children’s circumstances
As the children live with the mother and have not spent time with the father for over two and a half years the mother’s proposed orders will not result in any changes to the children’s current circumstances. It is likely however that the children experienced some loss in the father ceasing any involvement in their lives but little can be done to address this loss due to the father’s withdrawal from the proceedings.
Practical difficulty and expense involved in spending time with and communicating with the other parent
The Family Consultant held the view that it may be harmful for the mother to be required to communicate with the father. Her traumatic experiences from the past sexual assaults may be re-triggered which could affect her parenting capacity. The parties are not currently communicating to each other. This lack of communication between the parents could pose a practicable difficulty to the children spending time with the father if that were proposed. As the mother’s proposal does not involve the children spending time with their father this does not arise.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
The Family Consultant held concerns in regards to the parenting capacity of the father. She noted his criminal history and his tendency for aggression, over-reaction and lack of patience with the children. The father had taken steps to involve himself in the Taking Responsibility program to address these shortcomings. Of this the Family Consultant opines:
[the father] acknowledged that he had issues with maintaining his patience with the children. It is unknown if [the father] would be now able to maintain his patience with the children, should they be acting in a manner that causes him to become angry.
Neither the Family Consultant nor the father held concerns in regards to the mother’s parenting capacity.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The mother has demonstrated a positive and proactive approach to the responsibilities of parenthood of the children in her care. She has acted protectively of the children, in particular the second child, when required.
The father had been persistent in seeking to spend time with the children in these proceedings up until he disengaged with the proceedings in late 2017. His lack of engagement can be taken as an abandonment of the responsibilities of parenthood and is a matter to which I attract great weight.
Family violence relating to the children or a member of the children’s family
For the reasons given I am satisfied that the father has been the perpetrator of emotional and sexual abuse towards the mother to which the children have been exposed. I am also satisfied that he has also been emotionally abusive to the children and has physically abused the older two children on a number of occasions.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The mother seeks orders that the children spend no time with the father which will eliminate physical contact between the parties. Although this will reduce the likelihood of contravention proceedings this is not a weighty factor in this parenting dispute.
Conclusion
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). I am satisfied that the father has engaged in family violence so the presumption does not apply.
In these proceedings the mother seeks sole parental responsibility for the children. The father originally sought that the parents have equal shared parental responsibility for the children.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
Given the father has disengaged from proceedings, the only proposal before the court is for the mother to have sole parental responsibility for the children. The only parenting arrangement currently pursued by either parent is that the children live with the mother and spend no time with the father.
In circumstances where there is a history of physical and emotional abuse perpetrated by the father against the children, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them, and that the other orders proposed by her are in the best interests of the children.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 August 2018.
Associate:
Date: 9 August 2018
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