Luckaby and Round (No. 2)

[2009] FamCA 772

FAMILY COURT OF AUSTRALIA

LUCKABY & ROUND (NO. 2) [2009] FamCA 772

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests

Family Law Act 1975 (Cth)

State of Queensland v JL Holdings 189 CLR 146
Tate v Tate (2000) FLC 93-047

APPLICANT: Mr Luckaby

RESPONDENT: Ms Round

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5064 of 2007

DATE DELIVERED: 20 AUGUST 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS SLEETH

SOLICITOR FOR THE RESPONDENT: RIGOLI LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS HANNAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: PEARSONS SCHETZER & ASSOCIATES

Orders

1. That all parenting orders be discharged.

2. That the wife have sole parental responsibility for the child … born … February 2001.

3. That the child live with the wife.

4. That the child not spend any time with the husband.

5. That the wife forthwith do all such acts and things required to enrol the child in therapeutic counselling with a counsellor nominated by the wife and agreed to by the Independent Children’s Lawyer and that the wife follow any recommendations and referrals made by the said counsellor.

6. That the wife forthwith obtain a referral (if necessary) to Child First or any other agency agreed to by the Independent Children’s Lawyer and follow any recommendations and referrals of that agency.

7. That the Independent Children’s Lawyer provide to the said counsellors and agencies a copy of the report of Mr O and the psychiatric assessments of Dr G concerning both parents.

8. That within 3 months, the wife forward to the Independent Children’s Lawyer letters from both the counsellor and agency referred to.

9. That the Independent Children’s Lawyer be discharged from the proceedings on 20 February 2010.

10. That the husband be at liberty to send cards, letters and presents to the wife for delivery to the child on the basis that they are age appropriate and not contain any material that would disturb the child and the mother provide such material to the child if she deems it is appropriate.

11. That the applications of the husband and the wife are otherwise dismissed.

12. All proceedings are removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5064  of 2007

MR LUCKABY

Applicant

And

MS ROUND

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting dispute about the parties’ son born in February 2001.

2. For reasons which I shall set out, I have given the child’s mother leave to proceed with her parenting application on an undefended basis even though the child’s father was present throughout.

3. In addition, I propose setting out why parenting orders should be made that, at least for the moment, exclude the child’s father from any physical presence in his life. As things stand, the child has not seen his father now for a number of years.

4. The underlying problem is that I am satisfied that Mr Luckaby to whom I shall refer as the husband is mentally unwell and for reasons which are not clear, refuses to seek any psychiatric help.

5. Having said that, I have some reservations about the mother’s capacity as a parent but not sufficient to exclude her from the child’s life.

Background

1. Mr Luckaby was born in 1969. He is the child’s father.

2. Ms Round was born in 1978. She is the child’s mother.

3. The parties commenced a relationship in 1999 and married in September 2000 although there is some debate about that. They separated just after the child was born. They have lived separately since that time.

The proceedings

1. The wife issued an application in the Magistrates Court on 21 November 2006. She sought orders that the child live with her and spend weekend time with the husband. The child was then in kindergarten. In an affidavit filed for those proceedings, there was no suggestion by the wife of problems other than that the husband had not spent much time with the child.

2. On 10 January 2007, in the Magistrates Court, the father did not appear and orders were made. Those orders provided for the time between father and son to be “reserved”.

3. On 23 January 2007, the husband filed an application in the same court. I am not at all clear what it was about because of the state of the documents. Suffice to say, the husband filed an affidavit alleging there were serious problems in the wife caring for the child. He said she was psychotic and wanted to kill herself. The affidavit was prepared by a lawyer.

4. On 7 March 2007, the wife filed responding material denying the husband’s assertions. She said she was depressed. She made general allegations of physical violence against the husband. The applications were all adjourned to the Federal Magistrates Court of Australia.

5. On 17 July 2007, O’Dwyer FM made orders giving the father time with the child at a contact centre. That was not a consent order and it was made when both parties were represented by counsel.

6. His Honour set the matter down for final hearing in December 2007.

7. On 7 December 2007, the Court invited the Department of Human Services to intervene as a result of the allegations that were then being made. The proceedings were also adjourned to this Court ostensibly because it was thought to be a Magellan Project case. However, the contact centre orders were confirmed.

8. In this Court, the case went through a variety of stages. Suffice to say, no substantive orders were made in those hearings and the child did not spend time with his father because the husband would not go to the contact centre.

9. Ultimately, the matter came before me on 5 June 2009.

The June 2009 hearing

1. 5 June 2009 was the first day of the trial before me. The wife was represented by counsel and the Independent Children’s Lawyer appeared. The husband appeared unrepresented.

2. My reasons as recorded for what I did that day best sum up my concern then and still now.

3. I said:

   The difficulty is that when [the husband] says anything from the body of the court, it is in an incoherent way and to some extent, put aggressively.  His thought patterns are difficult to follow. That may very well be explained by some material that is attached to an affidavit of [Dr G], who is a forensic psychiatrist.  That affidavit was filed on 29 August 2008.

   Dr [G], in a report dated 17 March 2008 said:

   In summary, [the husband] is a 38-year-old man who is the father of a seven‑year-old son, [the child].  [The child’s] mother is [Ms Round], with whom [the husband] said he commenced a relationship in the mid-1990s and married several months prior to [the child’s] birth.  He maintains that [the mother] has been mentally ill and had suffered from auditory hallucinations.  He stated that her mental state had led to an intervention from the CAT team and that she had at one stage tried to stab herself.  [The husband] suggested that [the mother] suffered from mood swings and she had left him a couple of weeks after [the child’s] birth, having accused him of assaulting him.  They remained separated but for a time, he had intermittent contact with [the child] until [the mother] refused further contact about two years ago.

   What [the husband] told me today was that he was beaten up by police at the instigation of someone, possibly I interpolate that to mean the court, and that he had not seen his son as a result of allegations made about sexual issues.  He refers to being able to predict that certain people would be sexually assaulted.  He also made the observation that it was inappropriate for [the child] to be going to a contact centre because the child was at risk there.  There is a consistency between what Dr [G] saw and what I have seen today, suggesting that in the period of some 14 months since that report was done, nothing has changed.

   Dr [G] concluded that [the husband] presents as a rather disturbed man who was highly agitated and whose thinking featured paranoid themes.  There is a very distinct similarity with what I saw today.  Dr [G] said that [the husband] did not exhibit evidence of frank or unequivocal psychosis at the assessment interview.  I am not a psychiatrist but what I saw today indicated that is exactly what the problem was.  Dr [G] had some concerns about [the husband], although he found no evidence to suggest that [the husband] did not want to maintain a positive and appropriate relationship with his son.  Dr [G] covered all of that, however, by saying that an assessment of the credibility of the allegations or suspicions raised by the mother must be made to determine the appropriateness or otherwise of [the husband] having further contact with [the child].  The significance of that is that in her own words, [the mother] has indicated that she would like [the husband] to have some contact with his son on the basis that [the husband] gets his medical and mental health in order.  As I said, 14 months have gone by and there is no indication that that is unlikely.  I have serious concerns about [the husband’s] capacity to not only have contact with his son but also to participate in the proceedings.

   The record will note that [the husband] was disruptive in the proceedings and at that point in time when I was trying to get him to participate, he indicated that he saw little point in proceeding and then promptly left the court.  That ought not in itself be an excluding factor for the future.  This is about the welfare of a little boy and it is important in this case, because the mother has told me, that she would like [the husband] to have some involvement in his son's life, but he needs to get his house and health in order.

4. I then made the following orders relevant to the current hearing:

   3.   That the father undergo a psychiatric examination and provide a report of the results of such examination by no later than 24 July 2009 such report to be at the expense of the father and served upon both the solicitor for the mother and the Independent Children’s Lawyer.

   4.   That failing the father undergoing such psychiatric examination and providing the report as required by paragraph 3 of these orders, the mother have leave to seek to proceed on an undefended basis with her application for final parenting orders.

The August 2009 hearing

1. When the hearing began before me on 20 August 2009, the husband again appeared unrepresented.

2. I asked him what if anything, he had done about the psychiatric assessment I had referred to in the orders from June. His rambling dissertation was hard to follow but it seemed along the lines that he could not attend because it was contrary to some religious principle.

3. In what followed thereafter, the observations I made in June continued to apply. At times whilst the wife gave evidence he was disruptive but more in the sense of challenging what she was asserting. The difficulty is that I do not understand his position because apart from not having filed material, he is hard to follow.

4. There were other times when the husband had his head on his folded arms and appeared to be asleep.

5. He said on one if not two occasions that he knew I was going to make orders that he could not see his son. However, doing the best I could, I ascertained that he had very strong objection to any assertion that he had done anything wrong to his son. Sadly however, that then led on to ramblings about the prevention of the rape of an elderly woman and the wife having called out in a caravan park that he was a pedaephile which in turn caused people in a church to be concerned.

6. The husband is clearly a person with a disability in the sense of the Family Law Rules who could not conduct the proceedings or, I suspect, give instructions to a lawyer. He is an appropriate person to have a litigation guardian. However, even with that process in place, it was hard to see how the interests of the child would be advanced by delaying the hearing having regard to what I have just set out.

7. I desire to make it clear in these reasons that although I am making final orders, I am doing so on the basis of the evidence that I have been presented. It is not comforting that the evidence is vague and the future for the child not positive but it is the only evidence I have. The Department of Human Services have not taken steps to intervene nor have they removed the child from his mother.

8. If the husband did undertake some psychiatric assistance, it may be that his mental health would improve and he could become a father to the child. It certainly does not look that way at the moment.

9. I have mentioned the evidence. I permitted counsel for the wife to lead evidence rather than rely upon the affidavit that she had filed and served upon the husband. To say the least, it was appalling. I was troubled that apart from it being drawn by a legal practitioner, that practitioner had put it before the wife and arranged for her to sign and swear its contents to be true. Much of it was unintelligible. When I heard the evidence of the wife, I became more concerned because she was vague about many things. She did not fill me with confidence.

An undefended hearing

1. The power to proceed to hear a case on what is often described as an undefended hearing is set out in Rule 11.02(2)(c) of the Family Law Rules 2004 which provides:

   If a party does not comply with these Rules, the Regulations or a procedural order, the court may amongst other things:

   (c) determine the case as if it were undefended

2. An undefended hearing means literally that the respondent does not participate at all. In Tate v Tate[1], the Full Court discussed the subject only briefly pointing out that as the appellant’s response had been struck out, from the court’s perspective there was no live issue between the applicant and the respondent. The Full Court said:

   The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank (and prompt) disclosure of their financial affairs.  Where such failure results in a Form 7A being struck out, as here, then that party ought have no further right to be heard without further order of the Court which is a matter for the judge in his or her discretion. 

   Accordingly it was open to the learned trial Judge to rule that the husband had no right to cross-examine and in the exercise of her discretion to refuse what may be loosely described as his application to do so.

   The attainment of justice is the over-riding objective in each individual case.  In the pursuit of such an objective the trial Judge was in this matter exceptionally well placed to weigh the issues and the factors affecting each litigant and make orders appropriate to the case before her.  We believe she did so.

   This was indeed an “exceptional” case.  The forfeiture of the right to cross-examine or indeed to make submissions, flowed from the earlier order.  We discern no error of law in what transpired and no miscarriage of her Honour’s discretion. 

   [1] (2000) FLC 93-047

3. In State of Queensland v JL Holdings[2] Dawson, Gaudron and McHugh JJ observed that Justice is the paramount consideration in determining a matter requiring attention of the law. In a parenting case, the problem is more difficult when the Court is obliged to pursue an outcome for the child which is that child’s best interests. It is not simply a case of deciding between two propositions put by the parties. The difficulties in parenting cases such as this one are therefore compounded by a parent with a disability in circumstances where I can see little prospect of any steps the Court taking for that parent, making any difference.

   [2] 189 CLR 146

4. Section 60CC(3) has a specific consideration for the Court which reads:

   whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

5. I am satisfied that as much as natural justice would normally require a Court to permit full participation of a parent, this is a case where despite orders I earlier made, nothing would be advanced in the child’s interests by allowing the husband to participate as if he were a normal parent.

6. Having said that, I felt having regard to the matters that were being raised by the husband that I should pursue some issues about the child’s future. I was assisted by counsel for the Independent Children’s Lawyer cross-examining the wife about some of the current concerns that might affect the child.

7. The dilemma however is that there was no prospect of being able to test the mother’s evidence about the allegations of violence against the child. They are serious but I do not know that I could make positive findings about them even though the evidence of the wife was unchallenged in that regard.

8. I propose therefore to record the fact that these are matters of concern to ensure that there is no suggestion that they have been ignored. Their future relevance may become important if the husband brings an application to have any serious form of relationship with the child.

9. In respect of that, it is also to be noted that the wife said that she would not exclude the husband from the child’s life if he obtained psychiatric treatment. I am not at all convinced that she is sufficiently capable of understanding what all of that means nor of being able to explain to the child that he has a father and why he is not in the child’s life.

10. The wife did agree that the husband could send letters, cards and presents to the child and she would give them to him provided that there were appropriate. There is evidence that the husband has acted inappropriately in the past in that way by sending the child a card with a copy of an intervention order.

The wife’s evidence

1. Much of what the wife said was vague. At times, she seemed to have think deep into the recesses of her memory to be able to respond. Her evidence was characterised by slowness. At times she smiled or laughed at a question. At other times, she did not answer the question at all but wandered into another area. Questions about her current circumstances and why she was needing help, were brushed aside not in a flippant or arrogant way but rather as if she did not see the point or understand the problem.

2. It was hard to get a sense of just what her concern was about the husband other than that there had been a problem about his care of the child.

3. The wife conceded she had had Post Natal Depression and anxiety associated with it. She said that trying to “cope” with that was “completely out of order”. She said that she was only now medicated by a herbal remedy which she described as “St John’s Wort”.

4. She maintained that any concern about her having assaulted the child at a younger age was not an issue because now that she “believed” in herself again, she could see that she would never have hurt the child.

5. In respect of her own personal development, she now had various organisations helping her and she was an active member of Parents Without Partners.

6. In relation to the child, she said that he had had problems at school which ultimately were such that the school did not understand and she has now changed to another school where the child is settled. At the old school, according to the wife, the principal has “strange ideas”. Previously, the child had problems with bullying which heightened his anxiety. He had been accused of assaulting a child only weeks ago and that was, according to the wife, all wrong. It was hard to get a sense of what really happened but importantly, according to the wife, the Department of Human Services have not stepped in to take the child away. They seemed to have provided some guidance which the wife is intending to follow up in her local area.

1. The wife said the husband stopped seeing the child over 3 years ago because he kept coming around and was abusive and yelling at her. She described an incident in which the child told her that his father had sexually assaulted him. Her words were that the child said that his father touched him in a place where he should not have. She said there was just the one disclosure.

2. The child has a cousin nearby and an aunt who takes an interest in him. The wife said that there was a grandfather but the ability for that time to amount to much was limited.

3. According to the wife, the child shows no interest now in his father and the wife does not tell him anything about the husband.

The law

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) prescribes what is required of parents so that children can achieve in our society what the majority of Australians would expect. It was for that reason that Parliament set out the objects and principles from which the provisions of Part VII are to be applied.

2. Section 60B provides:

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

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

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

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

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

   (2)      The principles underlying 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).

3. Fundamental to my decision in this case is s 60CA which says:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

4. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:

   Primary considerations

   (2)      The primary considerations 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.

   Additional considerations

   (3)      Additional considerations are:

   (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)       each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h) if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)       the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

   Section 60CC(4) provides:

   Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)      has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child; and

   (b)      has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long-term issues in relation to the child; and

   (ii)spending time with the child; and

   (iii)communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   Section 60CC(4A) provides:

   If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

5. Dealing with those relevant considerations, I find as set out below.

6. Whilst it is clearly an ideal for the child to have the benefit of having a meaningful relationship with both parents, he is not receiving that benefit here. I do not believe that there is any evidence upon which I could rely to say what the husband has to offer his son. There is no prospect on the evidence of the child benefiting from any form of relationship with his father at the moment because of the concerns I have expressed about his father’s mental health.

7. A second but equally important primary consideration is the protection of a child from the harm in its various forms. I do not have anywhere enough evidence to be satisfied that the father did do what the child said to his mother. I am satisfied on the wife’s evidence that the absence of the husband from the child’s life means that leaving aside the allegation of sexual assault, the child would not become anxious or frightened by his father’s statements and behaviour .

8. I cannot give any weight to the wishes of the child having regard to his age.

9. There is no relationship between father and son. There appears to be a protective and strong attachment between mother and son. There is little prospect that the husband can build a relationship after all of this time but more importantly, his current state of health and his consequent behaviour would have the effect of deterring any such relationship.

10. There is no indication of any level of parental responsibility quite frankly on the part of both parents.

11. The evidence suggests that the wife understands what is needed of her to provide for the child.

12. It would be tempting to make orders which encouraged the husband to participate in the child’s life but the evidence is lacking as to how the Court could do it. Perhaps when the husband reads this, he might contemplate two things. First, the door is never shut but he will not have anyone interested in listening to him claiming a desire to be in the child’s life without getting his own health position sorted out first of all. Secondly, the wife made it clear that she would countenance involvement if the husband got his health right. The issue is in the hands of the husband.

13. I am satisfied even on the limited evidence that I have, that the orders proposed by the wife are in the child’s best interests.

14. As I do intend to make parenting orders, s 61DA requires that I apply the 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. There is no prospect that the parties could discuss issues. They have no means of communication. They do not want to be near each other. Their relationship was surrounded with aggression and on the part of the wife, fear. There is no prospect on the evidence that any intermediary could act to assist the parties about making decisions for the child’s future. The presumption in this case must be rebutted because it is not in the interests of the child for his parents to have that responsibility.

15. In the circumstances, the wife should make all of those decisions.

16. I do not think however that the child should be deprived of the knowledge that he has a father who may have some part to play in his future life. Provided the husband is sensible about his messages, it may be in the interest of the child to at least know that he has a father who cares enough about him to send him things that he likes and needs. In the future, that may lead on to inquisitiveness and at least allow the child to understand that he has a father.

17. Accordingly, I confirm the orders that are at the start of these reasons.

I certify that the preceding Sixty Six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 August 2009