Maclennan and Sadbery
[2019] FCCA 3142
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACLENNAN & SADBERY | [2019] FCCA 3142 |
| Catchwords: FAMILY LAW – Extraordinary circumstances – all children have disabilities – Father unrepresented with learning difficulties – intervention by the Department of Health and Human Services requiring adjournment – delay of 17 months in completing trial – no time with children by Father for lengthy period – children’s wishes and age very significant – Father and partner have very negative views of Mother and little or no insight – no time with for the youngest child with the Father. |
| Legislation: Family Law Act 1975 |
| Cases cited: Re F: Litigants in Person Guidelines (2001) 161 FLR 189 |
| Applicant: | MS MACLENNAN |
| Respondent: | MR SADBERY |
| File Number: | MLC 7625 of 2014 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 29 January 2018, 30 January 2018, 31 January 2018, 1 February 2018, |
| Date of Last Submission: | 24 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henwood of Counsel |
| Solicitors for the Applicant: | Samantha Ward Pty |
| Counsel for the Respondent: | Ms Teicher of Counsel on Days 3, 4, 5 and 6 and otherwise the father appeared in person. |
| Solicitors for the Respondent: | Macgregor Solicitors on Days 3, 4, 5 and 6 |
| Counsel for the Independent Children's Lawyer: | Ms Sweet of Counsel |
| Solicitors for the Independent Children's Lawyer: | Coulter Roache Lawyers Pty Ltd |
| Counsel for the Department of Health and Human Services | Mr Wu of Counsel on Day 6 |
ORDERS
All prior parenting orders be discharged.
That the mother have sole parental responsibility for the children X born … 2002, Y born … 2003 and Z born … 2008.
That X, Y, and Z live with the mother.
That Z spend no time with the father.
That X and Y if they so wish, spend supervised time with the father as arranged between the mother, the father and X and/or Y.
That the father be at liberty to obtain, at his expense, information in relation to Y’s and Z’s education, (including but not limited to school reports, school photograph order forms and notices).
That the parties notify each other of any change of address, telephone number or email address within twenty four hours of such change.
That the mother follow all recommendations and directions made by Z's Paediatrician and facilitate Z’s ongoing attendance on his treating Paediatrician.
That the mother otherwise shall ensure that all of the children continue to attend their specialists, general practitioner, therapists and counsellors that they are currently attending and she shall comply with their advice and directions and ensure the children all take their prescribed medication promptly.
The Order appointing the Independent Children’s Lawyer be discharged, save for any appeal.
IT IS NOTED that publication of this judgment under the pseudonym Maclennan & Sadbery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7625 of 2014
| MS MACLENNAN |
Applicant
And
| MR SADBERY |
Respondent
REASONS FOR JUDGMENT
“It is what it is”
Popular twenty-first century truism
Introduction
This is a contested parenting trial and this family has faced many challenges from 2001 when their first child was born. This Court faced many challenges when this trial was heard in 2 parts, in early 2018 and mid-2019.
The parents have four children ranging in age from 18 to 11 years. All but the youngest son, have mild intellectual disabilities. The youngest two have been diagnosed with Autism Spectrum Disorder and the second oldest and youngest with Attention Deficit Hyperactivity Disorder and anxiety. The youngest son is also said to suffer from Attachment Disorder and Oppositional Defiance Disorder. The father suffers from some intellectual disabilities and is semi-literate. He claims to be dyslexic.
On 29 August, 2014 the mother commenced proceedings in the Federal Circuit Court, on circuit at City A seeking orders in relation to the children. At the hearing on 10 November, 2014, final orders were consented to by the parents as follows:
“1. All Prior Parenting Orders be discharged.
2. The parents have equal shared parental responsibility for the children, W born … 2001, X born … 2002, Y born … 2003 and Z born … 2008 (“the children”).
3. The children live with the father.
4. The children spend time and communicate with the mother as follows:-
a)By telephone each Monday and Thursday at 4.30 pm with the father to initiate the call.
b)Each alternate weekend from Friday 4.30pm to Sunday 4.30pm commencing 7 November 2014;
c)Should the children not be in the care of the mother then for (4) four hours on the 12 December, 8 January, 15 January, 12 June and the full day on 20 December should they fall on a non school day and 2 hours should it fall on a school day at times to be agreed and in default of agreement 12.30 pm to 4.30 pm on a non school day and 4.30pm to 6.30pm on a school day.
d)Should the children not be in the care of the mother on Mother’s day then from 4.30pm on the day prior to Mother’s day until 4.30pm on Mother’s day each year.
e)For Easter 2015 from 3.00pm Easter Saturday to 3.00pm Easter Sunday and each alternate year thereafter.
f)For Easter 2016 From 3.00pm Easter Sunday to 3.00pm Easter Monday and each alternate year thereafter.
g)From 4.30pm on 19 December 2014 to 3.00pm on 25 December 2014.
h)From 4.30pm on 2 January 2015 to 4.30 pm on 9 January 2015.
i)From 4.30pm on 16 January 2015 to 4.30pm on 23 January 2015.
j)For Christmas 2015 from 3.00pm Christmas Day to 3.00pm Boxing Day and each alternate year thereafter.
k)For Christmas 2016 from 3.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter.
l)Half of the term vacations at times to be agreed and in default of agreement the first week from 4.30pm Friday to 4.30pm the following Friday.
m)Half of the long vacation holidays commencing 2015/2016 at times to be agreed and in default of agreement on a week about basis from Friday 4.30pm to the following Friday at 4.30pm.
n)Other times as agreed between the parents provided there is adequate notice.
5. For the purpose of exchanging the children the parents will meet at the main entrance of the Suburb B Library.
6. The mother’s time above is to be suspended as follows:
a)For Easter 2015 From 3.00pm Easter Sunday to 3.00pm Easter Monday and each alternate year thereafter.
b)For Easter 2016 from 3.00pm Easter Saturday to 3.00pm Easter Sunday and each alternate year thereafter.
c)For Christmas 2015 from 3.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter.
d)For Christmas 2016 from 3.00pm Christmas Day to 3.00pm Boxing Day and each alternate year thereafter.
e)From 4.30pm on the day prior to Father’s day.
f)For four hours on the 12 December, 8 January, 15 January, 12 June and the full day on 14 July.
7. That these orders constitute an authority to all crèches, kindergarten and schools the child or children attends to promptly forward to the mother and the father individually, at the expense of the applicable parent copies of all school reports, newsletters, notices, school photograph ordering forms and like correspondence, and either parent be at liberty to forward a sealed copy of these orders to the child’s or children’s crèche, kindergarten and school and to attend all parent/teacher interviews and any other crèche, kindergarten and school functions and/or extra curricula events to which parents are ordinarily invited.
8. That each parent inform the other party as soon as practicable of any accident or serious illness of the child or children and provide name and contact details of treating professionals and copies of all reports, notices and correspondence ordinarily received by a parent, if any. Each parent is at liberty to contact the child’s doctor, dentist or treating professional to discuss the child’s or children’s health and treatment and shall comply with all treatment strategies as recommended by the treating medical practitioners. In the event the child or children require hospitalisation, both parents are at liberty to attend and stay at the hospital.
9. Each of the parents keep the other notified of any change of address and mobile telephone number within 7 days of such change.
10. The parents are hereby restrained from criticising the other parent in the presence or hearing of the children or any of them.
11. 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 the 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.”
The mother said that she consented to these orders in 2014 as she did not have stable housing for the children. I might add that her parenting during this period was probably not adequate and has since improved with the many recent supports put in place by the Department of Health and Human Services.
By August, 2015 or thereabouts, X was in the primary care of the mother as her relationship with the father failed. Subsequently in 2016 and 2017, both X and W lived a “chaotic style”, (see Mr C’s report and Department of Health and Human Services reports), changing households at their whim.
These proceedings were commenced by the mother filing an application on 5 September, 2016 seeking the following final orders:
“1. The Applicant and Respondent (‘the Parents’) have equal shared parental responsibility for the children: W born … 2001 (‘W’); X born … 2002 (‘X’); Y born … 2003 (‘Y’); and Z born … 2008 (‘Z’) (‘The Children’).
2. W’s care arrangements to be in accordance with her wishes.
3. X, Y and Z live with the Applicant, MS MACLENNAN.
4. X, Y and Z are to spend time with the Respondent, MR SADBERY, as follows:
(a)During the school term, every second weekend from 4.30pm Friday until 4.30pm Sunday;
(b)half of each of the Term 1, Term 2 and Term 3 school holiday periods as agreed between the Parties via text message and in default of agreement from 4.30pm the first Friday of the holidays until 4.30pm the following Friday;
(c)half of the Summer School Holidays each year as agreed between the Parties via text message and in default of agreement on a week about basis commencing with the Respondent from 4.30pm the first Friday of the holidays until 4.30pm the following Friday.
5. The care arrangements for the Children are to be suspended as follows:
(a)during the four day Easter long weekend with the Children to spend time with the Applicant in 2017 and each alternate year thereafter and with the Respondent in 2018 and each intervening year thereafter.
(b)from 24 December until 26 December each year, with the Children to remain living with the Applicant and spend time with the Respondent as agreed between the parties via text message;
(c)during Mother’s Day weekend, if this falls on the Respondent’s weekend, the Children are to be returned to the Applicant at 4.30pm on the Saturday prior to Mother’s Day;
(d)during Father’s Day weekend, if this falls on the Applicant’s weekend, the Children are to spend time with the Respondent from 4.30pm the Saturday prior to Father’s Day until 4.30pm on Father’s Day;
(e)On the Applicant’s birthday, with the Children to spend time with the Applicant from 10.00am until 8.00pm that day unless otherwise agreed between the Parties via text message;
(f)On the Respondent’s birthday, with the Children to spend time with the Respondent from 10.00am until 8.00pm that day unless otherwise agreed between the Parties via text message;
(g)On the Children’s birthdays as agreed between the Parties via text message and in default of agreement as follows:
(i)if the Children’s birthdays fall on a school day, the Children are to spend time with the Respondent for 2 hours and otherwise be with the Applicant; and
(ii)if the Children’s birthdays fall on a weekend or during the School Holidays, the Children are to spend time with the Respondent for four hours and the Applicant for four hours as agreed between the parties via text message.
6. The Father’s time with the Children is dependent upon:
(a)the Father continuing to work with Child First or a similar approved parenting support service; and
(b)the Father ensuring that the Children do not come in to contact with the children of Ms D.
7. For the purpose of handover, the Respondent is to collect and deliver the Children to and from the Applicant’s home at times specified in paragraph 4 and 5 above.
8. Both parties will facilitate the Children contacting the other Party by phone as per the Children’s wishes.
9. Both Parties be permitted to contact the Children’s school to request copies of any school reports, newsletters, notices, school photograph ordering forms and correspondence and be otherwise permitted to attend the Children’s school for any event to which parents are usually invited including parent teacher interviews, school carnivals and functions.
10. Both parties are to notify the other, as soon as practicable via text message, of any accident, major illness or emergency involving any of the Children whilst in their care including details of the Child/ren’s location, the name and contact details of any treating medical practitioner and authorise that medical practitioner to speak with the other Party about the Child/ren if requested.
11. In the event the Child/ren are hospitalised, both parties are permitted to attend and stay at the treating Hospital in accordance with Hospital Policy.
12. Both Parties are to keep the other notified of any change of address or contact telephone number within seven (7) days of any change.
13. Both parties be restrained by injunction from criticising the other in the presence or hearing of the Children.
14. Without admission as to need, both Parties be restrained by injunction from physical disciplining the Children.”
On 14 December, 2016 the father filed a Response seeking the following final orders:
“1. That the parties equal shared parental responsibility for the children W born … 2001 (“W”), X born … 2002 (“X”) Y born … 2003 (“Y”) and Z born … 2008 (“Z”).
2. That the children live with the father.
3. That the children spend time and communicate with the Mother as follows: -
(a)The children W and X in accordance with their wishes;
(b) The children Y and Z as follows: -
(i)Each alternate weekend from 4.30 p.m. Friday until 4.30 p.m. Sunday during school terms.
(ii)One half of each of the school term holidays by agreement and failing agreement 4.30 p.m. on the first Friday of the holidays until 4.30 p.m. the following Friday;
(iii)For one half of each Victorian long summer school holiday period by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years;
(iv)From 5pm Christmas Eve until 3pm Christmas Day in the year 2017 and each alternate year thereafter;
(v)From 3pm Christmas Day until 5pm Boxing Day in the year 2016 and each alternate year thereafter;
(vi)From 5pm on the Saturday prior to Mother’s Day until 5pm Mother’s Day;
(vii)From 5pm Easter Saturday until 3pm Easter Sunday in the year 2017 and each alternate year thereafter;
(viii)From 3pm Easter Sunday until 5pm Easter Monday in the year 2018 and each alternate year thereafter;
(ix)On each of the children’s birthdays in the event that the children are not already spending time with the Mother and if the birthday falls on a school day for a period of two hours by agreement and failing agreement from 4.00pm until 6.00pm and on a non school day for a period of four hours by agreement and failing agreement from 10am until 2pm;
(x)Such further and other times as agreed between the parties.
4. That the children’s time with the Mother be suspended as follows:
(i)One half of each of the school term holidays by agreement and failing agreement 4.30 p.m. on the middle Friday of the holidays until 4.30 p.m. the following Friday;
(ii)For one half of each Victorian long summer school holiday period by agreement and failing agreement the first half in odd numbered years and the second half in even numbered years;
(iii)From 5pm Christmas Eve until 3pm Christmas Day I the year 2016 and each alternate year thereafter
(iv)From 3pm Christmas Day until 5pm Boxing Day in the year 2017 and each alternate year thereafter;
(v)From 5pm on the Saturday prior to Father’s Day until 5pm Father’s Day;
(vi)From 5pm Easter Saturday until 3pm Eastern Sunday in the year 2018 and each alternate year thereafter;
(vii)From 3pm Easter Sunday until 5pm Easter Monday in the year 2017 and each alternate year thereafter;
(viii)On each of the children’s birthdays in the event that the children are not already spending time with the Mother and if the birthday falls on a school day for a period of two hours by agreement and failing agreement from 4.00pm until 6.00pm and on a non school day for a period of four hours by agreement and failing agreement from 10am until 2pm;
(x)Such further and other times as agreed between the parties.
5. That each party keep the other informed of their residential address and contact telephone number and advise the other of any change to same.
6. That each party be authorised to obtain copies of all school reports, newsletters and photograph order forms and be permitted to attend any events that parents would ordinarily attend.
7. That each party notify the other of any serious illness or injury to the children or any of them and authorise any treating medical practitioner to provide information to the other parent.
8. That both parties be restrained from denigrating the other within the presence or hearing of the children or any of them or allowing any other person to do so.
9. That without admitting the necessity for same, both parties be restrained from physically disciplining the children or allowing any other person to do so.
10. Such further and other Orders as this Honourable Court deems appropriate.”
The Family Report writer describes the children as having …“challenging needs”. I suspect that this could well be an understatement given their disabilities which will no doubt give rise to many challenging issues for them in the future.
On 31 January, 2018 (Day 3 of the trial), I was so concerned about serious allegations of assault by the father on one of the children and further serious allegations about inappropriate sexual contact between X and Y, that I made a notification to the Department of Health and Human Services which triggered an investigation by that body and Victoria Police. I had to then adjourn the trial part-heard pending those investigations after Day 6, when the Department of Health and Human Services briefed Counsel to be heard on that day.
Pending the adjournment the three youngest children were to remain in the care of their mother. The matter came back before me on a mention on 23 April, 2018 and I was advised that orders were made in the Children’s Court in relation to these children effective to April, 2019, which pursuant to section 69ZK of the Act, meant I could not then hear the matter.
A further mention occurred on 4 April, 2019 when I made the following interim order:
“1. The children X born … 2002, Y born … 2003 and Z born … 2008 (“the children”) live with the mother.”
The matter came back before me part-heard on 22 July, 2019 a delay of some 17 months.
During the period of the Children’s Court Family Preservation Order for 12 months from April, 2018, the children have remained in the care of their mother pursuant to that order and the Department of Health and Human Services attempted on a number of times to arrange for the children or some or one of them to spend time with the father. The mother said that X, and perhaps Y were wanting to spend time with the father and this was offered to him by the Department of Health and Human Services but he declined it on the basis that Z was not spending time with him and it was his request to see all the children or none.
From the Bar Table the father initially denied this allegation and was very critical of the Department of Health and Human Services staff however, when he subsequently cross-examined the worker, he admitted… “I won’t see one without the whole lot of them.”
In any event, the children have not spent time with the father for some time being from around May, 2017 for X, from around August 2017 for Z and from around January, 2018 for Y. On the first day of the return of this trial, I queried what orders the father wanted and he said to at least have regular time with the children, Y now aged 16 and Z now aged 11 years. He said X, who was aged 17 years can decide what she wants. He agreed that his relationship with X is …‘very damaged’.
I suspect that she will not want to see her father regularly or possibly at all given he and the father’s partner both sought and obtained an ex-parte Intervention Order against her in the Suburb E Court on 27 May this year for a period of 12 months.
The allegations in the father’s Application and Summons were as follows:
“The respondent is my biological daughter, who is 17 years old. The respondent lives with her mother in Suburb S. For the past 7 years, the respondent has abused me, my partner and my partner’s children. Between 2016-2017 the respondent has opened a number of Facebook accounts in my name just to cause trouble with others. In 2013, the respondent would forge my signature on paperwork when she wanted to go somewhere with school but I had said no. In the past, I would have parents of other school children come to my house threatening to bash me because of the respondent assaulting other children from her school.... The respondent is continually trying to stalk the girls and cause trouble… I believe these incidents will continue as it has been going on for years. The respondent is violent and makes my partner and I look like we are pedophiles. I am concerned for my safety and the wellbeing on the children. I do not want to any contact with her.”
According to the mother’s evidence, X was understandably emotionally hurt by the Intervention Order proceedings instituted by her father and the order made. She was disruptive and negatively acting out at school. To seek this Intervention Order is a clear example of the father’s lack of insight into the emotional wellbeing of his child.
Background
The Applicant mother was born on … 1979, and is aged 39 years. She lives in the City A region. The Respondent father was born on … 1976 and is aged 43 years. He lives in Suburb T, in suburban Melbourne. They commenced cohabitation in … 2000 and separated in either December, 2010 or 2011. Whilst the lack of consensus on the date of separation was sometimes a source of confusion, the difference of 12 months is not a significant issue in the circumstances of this most unusual case.
Following separation the mother went to live in Tasmania to avoid being threatened or …“followed up…” or …“stalked…” by the father. She travelled to and from Victoria with visits to the children for around 10 months before returning to live in City A. She said she could not …“put up…” with him …“putting me down all the time.”
She went on to say she had … “trouble coping with everything Mr Sadbery had said and done.”
The Family Report at page 5 provides some further background where it says:
“7. Since Ms Maclennan returned from Tasmania following the parental separation – particularly, in more recent years – the children have lived in a variety of arrangements between parents, with a great deal of fluidity and spontaneous changing of the arrangements by the children themselves. The children’s problems are further compounded by their parents. long-term unemployment, welfare dependence and concomitant poverty.
8. Throughout the latter 6-year period, covering October 2011 to April 2017, DHHS, plus a number of agencies and health and welfare professionals, have been heavily involved supporting the family. Notwithstanding that support at the time of writing the 4 children are living across 3 carers; their mother, their father and a paternal aunt.
9. Apart from its day-today involvement with the family DHHS has provided reports to the court during the present litigation, including certain recommendations in relation to the children’s living arrangements going forward. In the writer’s view the DHHS reports and recommendations will be very important for the court, in addition to this family report.”
The eldest child is W born … 2001, who was 15 when proceedings were initiated and now is 18 years of age.
On 4 August, 2017 she was assessed by a Dr F, a Clinical Neuropsychologist who prepared a report which sets out at page 6 the following:
“W’s current level of cognitive functioning is at the level of a mild intellectual disability. She performed at a low level across many areas of functioning, including her verbal comprehension, perceptual reasoning and executive functioning. Her intellectual disability and her poor verbal expression and verbal comprehension will significantly impact on W’s capacity to express her wishes.
Further, W has significant difficulties with executive functioning and high level reasoning, demonstrating a concrete thinking style. This means she will have trouble with comprehension, reasoning, judgement, planning and organisation in general and the ability to monitor her behaviour and emotions, impacting on her day to day adjustment and behaviour functioning.”
The second oldest is X born … 2002, who was 14 when proceedings were initiated and is soon to be 18 years.
X was seen by the same expert on 12 July, 2017 and at his report from page 7 he says the following:
“X is a 15 year old girl who was referred for neuropsychological assessment to determine her current cognitive capacity. Findings from the current assessment, including her overall IQ score and her adaptive functioning, indicate that X’s current level of cognitive functioning is at the level of a mild intellectual disability, consistent with previous reports and assessment results, as well as her clinical presentation. She performed at a consistently low level across almost areas (sic), except for her working memory skills, which, even though being at a low level, were a relative strength in her profile. This low level of functioning, including her poor verbal expression and verbal comprehension, and her concrete thinking style, will significantly impact on her capacity to express her wishes. X’s recall and verbal memory skills, and reading, spelling and mathematics skills are at a similarly low level.
Further X has significant difficulties with executive functioning and higher level reasoning, demonstrating a concrete thinking style, meaning she will have trouble with comprehension, reasoning, judgement, planning and organising in general, and the ability to monitor her behaviour and emotions, impacting on her day to day adjustment and behavioural functioning. Executive function difficulties also manifest as difficulties with perspective taking, and the ability to reason and ‘see the bigger picture’ when making decision and judgements. These executive functioning difficulties identified through formal assessment, combined with her inability to express and identify the impacts of her decisions on others, suggests that X is unable to clearly articulate, and has limited insight into, the impacts and implications of her expressed wishes on others around her, including her parents and siblings.
Overall, given X’s depressed level of functioning across all areas, she will have significant difficulties engaging in a classroom or in a learning environment without considerable support and assistance. Her profile suggests that X will be slower than her same aged peers to learn new information, in particular verbally presented information (in the auditory or written modality). Academically, she will benefit from ongoing individualised and/or small group literacy and numerary support to develop the basic building blocks required for more advanced numeracy and literacy. Her current enrolment and attendance at G Special School is therefore appropriate for X, with this environment providing X with the support she needs for her ongoing development.
Due to X’s problems with understanding and processing auditory and verbal information she may become overwhelmed and “forget” what she has been asked to do if too much information has been provided at once. These problems will be exacerbated within a busy, distracting and demanding environment such as the classroom. Therefore, providing X with short and simple instructions, and no more than two instructions at a time, will be useful for her.
It is the respectful opinion of the writer that X requires stable, safe and secure living arrangements. This will help to provide a safe, predictable environment for X to develop her confidence and self-esteem, and to learn strategies to develop positive social skills and relationships with peers.”
The third child is Y born … 2003, who was 13 years when proceedings were initiated and is now aged 16 years and 6 months.
The expert also saw Y on 12 July, 2017:
“Y is a 14 year old girl who was referred for neuropsychological assessment to determine her current cognitive capacity. Y’s current level of cognitive functioning is at a level of a mild intellectual disability. This is consistent with her clinical presentation in the current assessment, and the findings previously assessment (sic) which also found that her cognitive profile and adaptive functioning were consistent with an intellectual disability. Y’s auditory processing skills (short-term auditory memory and working memory), and basic literacy are at a similarly low level.
She also has significant difficulties with executive function and high level reasoning, demonstrating a concrete thinking style, meaning she will have trouble with judgement, reasoning, comprehension, planning and organisation, impacting on her day to day adjustment and behavioural functioning. These executive function difficulties can also impact perspective taking, and the ability to reason and ‘see the bigger picture’ when making decisions and judgements. These executive function difficulties identified through formal assessment, combined with her autistic traits and her inability to express and identify the impacts of her decisions on others, suggests that Y has limited insight into, and will be unable to clearly articulate, the impacts and implications of her expressed wishes on other members of her family.
Y’s low level of functioning means she will have significant difficulties accessing the curriculum within the classroom without considerable support, and that she will be lower than her same aged peers to learn new information, in particular verbally presented information (in the auditory or written modality). Academically, she will benefit from ongoing individualised and/or small group literacy support to develop the basic building blocks required for more advanced numeracy and literacy. G Special School is therefore an appropriate learning environment for Y, proving her with the support she needs for her ongoing development. Given her problems with understanding and processing auditory and verbal information, Y may become overwhelmed and “forget” what she has been asked to do if too much information has been provided at once. These problems will be exacerbated within a busy and distracting classroom environment. Providing Y with short and simple instructions, and no more than two instructions at a time, will be useful for her.
It is the respectful opinion of the writer that Y requires stable, safe and secure living arrangements. This will help to provide a safe, predictable environment for Y to develop her confidence and self-esteem, and to learn strategies to develop position social skills and relationships with peers.”
The youngest child, and only male, is Z born … 2008, who was 7 years when proceedings were initiated and is now aged 11 years.
On 31 August, 2017, Z attended Ms H, Psychologist, for an Autism Assessment Report which in summary sets out at page 6 the following:
“Based on the information provided and observations of Z, it is my opinion that Z presents with deficits in the areas of social communication and social interaction across multiple contexts, and shows restricted, repetitive patterns of behaviour, interests and activities. These symptoms were present in the early development period (prior to the age of 3 years), cause clinically significant impairment in social and other important areas of current functioning and are not better explained by other intellectual disabilities or global developmental delays.
These difficulties place Z within the Autism Spectrum and his family will benefit from ongoing support and assistance to manage Z’s development, particularly with his anxiety, social skills and emotional regulation.”
In January, 2018 it was common ground that W did not want to live with either parent or spend time with them save when she wished to do so. At the start of the trial she had …“voted with her feet”… by choosing to then live with the father’s half-sister and her husband, who are not parties to these proceedings. I was advised they were content to support her in this wish and no orders were therefore sought in relation to W.
I was informed by the Applicant mother on the return of the trial, that when W turned 18 years in January this year she went to live with the father for three and a half weeks. Subsequently, she went to reside with a friend in Suburb B, a suburb of City A.
I was further informed that in March of this year an Intervention Order was obtained by the father against W which initially prevented her from being in the same house as her brother, Z. The mother and W had to then seek a variation of this order to remove this impediment.
I was also advised that in October, 2018 the father had sought an Intervention Order against the mother but did not prosecute it as he said he had to leave the courthouse by midday, and the matter was not reached by that time.
The father’s partner and her children also sought Intervention Orders against the mother. The mother subsequently had to seek legal advice because she could not appear at the hearing in Melbourne given the lack of respite care for the children and in the circumstances, she was advised to consent to the orders sought … “without admission to the allegations”.
It appears that these proceedings have compounded the mutual distrust that exists between the mother and the father.
Our focus will be on the three youngest children who, as I have indicated, all present with a number of challenging problems. The father initially appeared in person but then had a grant of legal assistance from the Victorian Legal Aid, transferred to another practitioner who briefed Counsel to appear for the father on Days 3, 4, 5 and 6. Prior to this and on the resumption of the trial he appeared for himself. I assisted him the best I could pursuant to Re F: Litigants in Person Guidelines (2001) 161 FLR 189.
Material Relied On by the Parties
Applicant Mother:
(a)Initiating Application filed 5 September, 2016;
(b)Trial Affidavit filed 24 January, 2018;
(c)Reports obtained by the Independent Children’s Lawyer;
(d)Family Report prepared by Mr C dated 7 January, 2018; and
(e)Case Outline filed 25 January, 2018.
Independent Children’s Lawyer:
(a)Outline of Case filed 25 January, 2018 and 22 July, 2019;
(b)Family report prepared by Mr C dated 7 January, 2018;
(c)Neuropsychological Assessment of Z prepared by Dr F dated 1 September, 2017;
(d)Neuropsychological Assessment of the Father by Ms J dated 20 July, 2017;
(e)Neuropsychological Assessment of W prepared by Dr F dated 4 August, 2017;
(f)Neuropsychological Assessment of X prepared by Dr F dated 12 July, 2017;
(g)Neuropsychological Assessment of Y prepared by Dr F dated 12 July, 2017;
(h)Neuropsychological Assessment of the Mother by Dr K dated 7 July, 2017;
(i)Subpoena to L Community Support filed 22 February, 2017;
(j)Subpoena to Victoria Police filed 7 February, 2017;
(k)Subpoena to M College filed 7 February, 2017;
(l)Subpoena to City A Paediatric Group filed 7 February, 2017;
(m)Subpoena to Town N Medical Clinic filed 7 February, 2017;
(n)Subpoena to G Special School filed 16 December, 2016;
(o)Subpoena to Department of Health and Human Services filed 16 December, 2016; and
(p)Subpoena to M College filed 16 December, 2016.
Respondent Father:
(a)Outline of Case filed 7 August, 2017;
(b)Amended Response filed 2 August, 2017;
(c)Affidavit sworn or affirmed 2 August, 2017;
(d)Affidavit sworn or affirmed 13 December, 2016; and
(e)Affidavit sworn or affirmed 8 November, 2017.
Applicant’s Evidence
The mother in the early part of the trial in 2018 presented as somewhat nervous and defensive. On the return of the trial in 2019, she appeared more confident and in charge of her world. In my view, she attempted to answer the questions as best she could. I found her evidence to be helpful and generally she did her best to assist the court. It is also clear from her evidence that there is no love lost between her and the father.
Respondent’s Evidence
The father was defensive in 2018 and sometimes appeared to have a poor memory of events. In 2019, he was more outspoken and assertive. To some degree his evidence and demeanour have to be seen in the context of a person who is unsophisticated, has some intellectual weaknesses, and clear poor communication skills. He was frequently defensive and often selective with his evidence. Sometimes he simply lied to the Court. He presented at Court in a similar style to the Family Report writer who said at page 17:
“65. When Mr Sadbery’s interview commenced it was difficult for the writer to keep his answers relevant to the writer’s questions. Mr Sadbery was strongly inclined to go off at tangents and talk pointlessly; telling the writer garbled, disconnected stories, and needed to be interrupted in order to re-focus him on the question.”
When I review the evidence of the father and compare that to the evidence of the mother, I prefer the evidence of the mother.
Family Report
This was undertaken by Mr C and is dated 7 January, 2018. It is a well-written report but dated on some topics. It generally assisted me. He attended the Court on 24 July, 2019 to hear the evidence of Ms O, who is an expert employed by the Department of Health and Human Services, before he gave evidence.
This expert was cross-examined on 4 February, 2018 and 24 July, 2019 and his credentials and experience were not questioned. His evidence was very helpful and relevant to the best interests of the children.
Other witnesses
Ms O
This lady is a child protection practitioner employed by the City A office of the Department of Health and Human Services.
She gave evidence that she was involved with these children for about 12 months and it appears that she had regular interaction with them. Her evidence was generally very helpful and in particular, I put significant weight on her evidence about the children’s current views and comments that they made to her.
Ms D
She is the partner of the father and lives with him at Suburb T. Two of her children reside with them and she advised the Court that she also has a mild intellectual disability which affects her reading and spelling.
On 11 February, 2019 she posted the following on her Facebook about W:
“Who the f***(1) comes into someone’s home and abuses their dad and girlfriend after the dad’s girlfriend did a lot for her. Every way she talks about her mother like she is nothing, talks to her sister like they’re nothing, runs the aunty and uncle down to the ground, abuses me and my children in my own home. Abuses her dad like nothing then thinks she can go and live with her friend, Ms U, who also said that my children are all rats and red-headed rangi c****([1]) so if my children family see this it’s going to down big time, W. Don’t come back to my house again. You f******(1) child-abuser like your mother, Ms Maclennan, because she is.”
[1] Extremely offensive words are censored save for the first letter.
She also posted on 27 May, 2019 the following when referring to “Mr Sadbery’s girls”...:
“they’re a pack of dogs. They need to run down and I would do it myself.”
It was also put to her that when she sent a text message to W on 11 February 2019, she referred to the Applicant in this case, her mother, as a ‘dog’ and went on to say… “I’ll smash your lovely mother in front of you. That’s good for you. We don’t f******(1) care.” I asked this witness whether she wrote that, and she agreed she had. She also sent a message telling W that her mother slept with man, after man, after man. The following was put to her which she accepted:
“We’re going to f***(1) up and your mother and sister X up.”
On the same day she also sent the following message to W:
“I don’t carer (sic) you are a liar and arbitrator (sic) like the rest of your family and don’t talk about my F*************** again or I’ll put an IVO Order against you too. Show this one to your mother and I’m going to smash her F****** head in all over the Federal Court and I can’t F****** wait one side to the court to the other shadow (sic) onto the judge.” (Self-censored)
I was disappointed with her strong negative view of the mother and doubt it will change over time, given she said to me that she hates the mother ...“with a passion”.
She subsequently advised me she was being treated by a psychiatrist and counsellor because she had a …‘troubled childhood’. She went on to tell the Court she had been taken from her parents and … ‘placed in homes’… before she was 12 months old and was regularly sexually assaulted by her uncle.
She then made allegations about Y being a victim of sexual assault and Y was sexually abusing X. However, given her hostile attitude to the Applicant and the Department of Health and Human Services view on this topic, I put little weight on these allegations.
Relevant Legal Principles
Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their life, 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.
Section 60B(2) of the Act sets out the principles underlying those objects They 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;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(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).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.
Section 64B of the Act defines the expression ‘parenting order’.
In making any parenting order, the court must to the extent it is possible and promotes the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
If the court is satisfied that the parents are to have, pursuant to s.61DA(1) of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss. 65DAA(2), (3), (4) and (5) of the Act requires the consideration of the substantial and significant time. This will be considered after the s.60CC considerations.
Section 60CC factors
Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters set out in s.60CC(2).
The two primary considerations are set out in 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.
They will be considered after the relevant matters in s.60CC(3) are looked at, (see Collu & Rinaldo [2010] FamCAFC 53 at paragraph 335).
Section 60CC(2A) requires the Court to give greater weight to paragraph (2)(b).
The additional considerations in s.60CC(3) of the Act 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;
The Family Report dated 7 January, 2018 sets out interviews with the children amongst other matters. In relation to Z, the author said at paragraph 109, page 24 that Z did not want to meet his father on the days of the interviews and seemed relieved that he would not be required to do so. I also note paragraph 97 at page 22 where the Family Consultant said that at various times during the interviews, particularly when he thought his father might be near or in the practice, Z seemed notably weary and anxious.
The Applicant mother in her Evidence in Chief on 22 July, 2019 said Z did not want to see his dad, he just said ‘no’, notwithstanding she has raised this with him a number of times.
The most recent evidence on this topic was provided by Ms O, the worker with the Department of Health and Human Services, who asked the children to write a letter to their father to express their view about seeing him amongst other matters. Z’s letter was very short and was simply… “I don’t want to see you.” The expert also gave evidence as follows:
“I spent a bit of time with Z. I attended his school support group meetings and I would often ask Z how he felt about seeing his father and he would say, ‘No, I don’t want to see him’.”
I note that this is consistent with the Independent Children’s Lawyer’s experience.
When pressed again on this topic Ms O went on to say… “He would just say ‘no’ and that was that with him. He would just put the walls up.”
In relation to Y, the report which is some 22 months old, indicated that she wanted to live with her father and she said to the report writer at paragraph 121 that she loved her dad and at paragraph 128 she said she wanted to live with “them” and spend alternate weekends with her mother, Z and X.
Ms O raised this topic more recently with Y and gave evidence that Y was a bit hesitant about seeing her father and said that all she was concerned about was getting her rainbow framed glasses back. She really did not elaborate about seeing her father. She went on to explain that she had a discussion with the children and said: …“Y told me that she didn’t want to see her dad on this occasion because he had repeatedly hit her in the head ten times, and her only thing that she was worried about was that he didn’t say sorry to her, and that’s why she didn’t want to see him.”
In relation to the child X, the Family Report writer does not detail any specific wishes expressed by her in relation to seeing her father.
Ms O in her evidence said that X was consistent in wanting to see her dad and wanted it under supervision by the Department of Health and Human Services.
Z has not seen his father for over 2 years, Y for 18 months, and X since May, 2017 also over 2 years.
It is to be noted that Ms O was cross-examined on the issue of the father’s relationship with the children during the period that they were subject to the Children’s Court order and she said the following –
“So what was Mr Sadbery’s attitude to seeing the children? What did he suggest, if anything? ---He wanted to see Z, only Z.
Z? ---Yes.
He expressed no wish to see X? He expressed no wish to see Y; is that what you’re saying? You agree with that? ---No wish to see the girls, just Z.
Did you take that up with him?---Yes. I spoke to him about it and I said that, “You – you can’t just see one child. You need to be able to see all the children.”
What was his reaction to that?---He said, “If I don’t see Z, I don’t want to see any.”
Did you see fit to discuss with him any ramifications of that for the children you might have perceived? --- Tried to but he just ---
What did you explain to him? ---I tried to explain to him that it would be very unfair, especially on X because she wanted to see him. Y really – she wasn’t really concerned in seeing him. She’s sort of a bit fixated on getting things that belonged to her back. So that was – her mindset wasn’t really in – in that place to see him. But Z was just “no, no.” All the time, “No.” Yes.
And what was Mr Sadbery’s reaction to that? ---He – he wasn’t happy with that.
When you explained to him that it might be unfair on X, what was his reaction to that comment? ---He said he didn’t care and that he only wanted to see Z.
When was this conversation taking place? ---It has taken place several times, a lot of times during the time that I’ve been involved.”
Given the evidence of Ms O regarding recent events was not effectively challenged, I will be putting significant weight on the views of Y and Z.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
In relation to the mother, it appears that X, Y and Z have a close and caring relationship. There appears to be a positive and in a now normal parent/child relationship. In relation to the father however, the current relationship is non-existent between him and his children. I am concerned he has not made a real effort to be involved with all of the children rather than just Z as reported by the Department of Health and Human Services worker.
(ii) other persons (including any grandparent or other relative of the child);
No evidence was lead in relation to third parties, save for Ms D who appears to have a negative view about the mother and the children.
(c) the extent to which each of the child's parents 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;
In relation to the mother it appears she has taken many opportunities to make decisions, be involved with the children and communicate with them on a daily basis. The father, however, has not taken every opportunity presented to him, more particularly, when the Department of Health and Human Services was involved he did not make every effort to spend time with or communicate with the children.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Both of these parents historically have been dependent on the taxpayers of Australia to support them and their children. I note that in relation to child support that the father currently pays $16.37 a fortnight which, on any view, is a token amount given the obvious needs of these children to be properly housed, fed and clothed, at the very least.
(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
The children currently do not spend time with their father and have not done so for a lengthy period of time. That is unlikely to change in the short term unless X at 17 years and Y at 16 years express a wish to see their father. Should the children no longer reside with the mother, I believe that change would be a very negative thing for them. It appears she has listened to and followed the advice of the workers at the Department of Health and Human Services and other experts involved with all of the children including workers funded by the National Disability Insurance Scheme. It is clear during her care the children have made significant progress and to disrupt this would be a very negative outcome for the welfare and best interests of these children.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Not relevant. No evidence was led about third parties and this topic.
(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;
Not relevant.
(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;
The Independent Children’s Lawyer in their helpful Outline of Case document addresses this topic accurately at page 14:
“The Mother and the Father have both undertaken Neuro Psychological assessments. The Mother’s assessment was conducted by Dr K. Mr Sadbery’s assessment was conducted by Ms J.
The assessments of both mother and Father concluded that both parents have low intellectual functioning. Mr Sadbery measured in the borderline extending into Extremely Low range. Ms J opines that Mr Sadbery’s full scale IQ score was within the range necessary for a diagnosis of intellectual disability. It is Ms J’s view that Mr Sadbery’s parenting skills will further be tested due to the multiple and complex needs of his children with these challenges increased as his children get older.
The Mother was measured in the Low Average range by Dr K who was unable to make a judgment of the Mother’s parenting capacity without any objective functional assessment. However Dr K expressed concern over her inability to understand the parenting challenges she is likely to face and the future needs of her children. In the context of parenting, Dr K opines that the Mother is likely to have difficulty adapting to the challenges that arise as her children move through adolescence, especially given their complex needs.
In line with the Neuro Psychological assessments conducted on both parents, the ICL contends that the Mother will require ongoing support in her parenting role particularly in relation to the significant needs of each of the children. The Mother will also require ongoing education and opportunities to enable her to develop her parenting skills and reflect the changing needs of their children as they develop and age.”
I also note the evidence of Ms O, the worker at the Department of Health and Human Services who indicated that the children were progressing well in the mother’s care. She said:
“There were no sexualised behaviours. Z was doing really well at school; both girls were doing great at school. Very settled; more settled than they’ve ever been. The prior case worker said that they were a lot more settled than she has seen them as well. I just can’t believe they’ve come so far in the time I’ve worked with them.”
She also said in her evidence that in March, 2018, X complained that she had been hit by her mother; she had been smacked by her. The mother must take note of this complaint and ensure there is no corporal punishment inflicted on any of these children. The worker went on to say that X and her mother have a good relationship and the same could be said for Y and her mother.
(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;
The children’s disabilities are a significant issue in this case along with the parents own parental shortcomings.
(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;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Historically, the mother has had a number of parenting deficits that she appears to have overcome with the assistance of the Department of Health and Human Services, and other support groups. It appears that in the last twelve or so months she has listened to those experts and advisors and has now proved her capacity to effectively parent these children.
Ms Sweet of Counsel for the Independent Children’s Lawyer was cross-examining Ms O from the Department of Health and Human Services as follows:
“Are you satisfied as to the supports that are in place for the children in terms of professional supports?---Children have a lot of supports in place. They all have NDIS plans. The girls have a counsellor. They all have a paediatrician. NDIS support puts a lot of things in place for the children, so they’ve got lots of disability supports in place that they go to. Yes…
…It emerged during cross-examination that the mother, although she had certainly – I think …..busy with all the professionals involved with the children, that she actually doesn’t have her own – specifically her own support. Not professional support. She made reference to - - -?---Yes.
- - -some friends. So you’re aware of that? ---Yes.
Does the department have a view on that?---We spoke to her about it. She does have a couple of friends. And we spoke to her about – if she needed any support, if she had any – where she would need some counselling. She knows about, you know, the care plan – the mental health care plan, that she can go to a GP.”
Ms Sweet when cross-examining the Family Report writer, Mr C, the following took place:
“Mr C, you’ve heard a question addressed to the department worker about the mother not having her own support. When she was cross-examined about that she was able to give all the details that were asked of her in relation to the supports for the children, but when asked about her own supports and point out to her that she was very busy, it might a stressful situation, that she needed support, she didn’t seem to see that as an integral part of the protective measures around the children. Do you have any view on that? ---I couldn’t really add to what the previous witness told the court, I don’t think. It’s noteworthy, I think, throughout all of this that the mother is more cooperative, if you like, with the authorities, with these supporting agencies, and is able to negotiate with them and talk to them, and I think that’s obviously part of the decision last year to group the three children with the mother, that she has that confidence; she is – she acknowledges she needs help and she will seek help and avail herself of it and grow in that situation. But in my reading of all this I don’t see any of that in relating to Mr Sadbery who seems to stand off from the whole process of being helped and made offers and things.”
Ms Sweet, Counsel for the Independent Children’s Lawyer, asked the following question of Mr C:
“And the father didn’t disagree that there had been a situation on a particular day in May, 2017 where X wanted to go but the father didn’t want to take her and there was a reference that was read to the father of X sitting quietly and sobbing after Z and the father had left. The father was asked how he felt about that, and I don’t want to go too far on this, your Honour, but my observations were that he wasn’t moved by it. Are you able to make any observations about the father’s capacity for empathy, Mr C?---Well, only in the broadest sense. I mean, it has always seemed to me that Mr Sadbery simply wants to win the war. He’s – he can’t see that there’s an advantage in just winning one battle at a time, of maybe seeing X, say, in this situation and X going home and saying, “Look, it was great seeing dad today. We did this. We did that”, blah blah blah, and actually moving forward positively. I don’t understand why he takes these very dogmatic unreasonable positions in relation to seeing the kids. He – you know, “I will only see three; I won’t see one”, or whatever it is. I simply don’t understand why he does that because it’s counterproductive. He’s pushing all the children – even ones that want to see him, he’s pushing them away. This is his decision obviously.”
In relation to the father, it appears that he has rejected X and W and whilst he wants a relationship with Z and possibly Y, he has not gone about it in a very positive way. He has not been proactive in seeking a relationship with his children since the hearing was adjourned in February, 2018; this is clear from the evidence of the Department of Health and Human Services expert. He appears to be personally affronted by the behaviour and comments of some of his older children and he lacks insight about the effect of his behaviour on his children.
(j) any family violence involving the child or a member of the child's family;
The mother’s material contains very serious allegations about the abuse she suffered at the hands of the father during cohabitation, often non-physical abuse on a daily basis and sometimes physical family violence. This has now ceased following separation although it is important they have little or no physical contact with each other in the future.
There have been historical allegations in relation to both parents at different times imposing physical punishment on one or other of the children.
When giving evidence to the Court, Mr C, the author of the Family Report, said that… “the whole history of the family is one of chaos and trauma.”
There have been no recent examples of this and it appears that both parents have accepted that physical violence has no merit whatsoever, and can only have negative consequences for them and their child or children.
I will deal with this topic of family violence further in sub-paragraph (k) below, and when addressing s.60CC(2)(b).
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
On 21 February, 2019, the father filed an Application for an Intervention Order against X which included the following allegations:
“The respondent is my biological daughter, who is 17 years old, the respondent lives with her mother in Suburb S…for the past 7 years the respondent has abused me, my partner and my partner’s children….in 2013, the respondent would forge my signature of paperwork when she wanted to go somewhere with school but I had said no. In the past, I would have parents of other school children come to my house threatening to bash me because of the respondent assaulting other children from her school.
On the 21/01/19 the respondent sent me a message to my partner and W stating “Dad is a dog, Dad is a dog, Dad Mr Sadbery doesn’t even care for his children anyway.”
I believe these incidents will continue as it has been going on for years. The respondent is violent and makes my partner and I look like we are pedophiles (sic). I am concerned for my safety and the wellbeing of the children. I do not want to have any contact with her.”
On 12 March, 2019 the father filed an Application for an Intervention Order against W which included the following allegations:
“The respondent (resp) is my 18 yr old daughter…on 17/1/19, Ms D went to V Shopping Centre to pick the resp up, so she could stay for 3 hours, however she stayed for a month. She never asked my wife if she could stay and I never wanted her to. I told her to go to her mother’s house in City A. I also said, “you have always hated Ms D and me, so why are you here?”.
The respondent would abuse me while I was driving Ms D’s car. She would say that I am a ‘dumb f***[2] face’ and abuse me… This happened everyday while she was in my home. There is no respect from the resp towards myself. There is so much hate towards all of us from the resp.
[2] Extremely offensive words are censored save for the first letter.
On 11/2/19, we kicked the resp out of the house after being abused by her everyday.
From 2011 until 2019, the resp would always abuse me by yelling and screaming abuse towards me. She would have no respect for me. Her mother Ms Maclennan, would tell her who to like and not like. She is like her mother and her sister, X. She is jealous that I won’t be back in their lives, but I am done with all the abuse and harassment.”
On 18 July, 2018 the father also filed an Application for an Intervention Order against the mother, Ms Maclennan which contained the following allegations:
“The resp is my former partner. I have previously made an application against the resp at City A Magistrates Court, an Interim was made on 31/10/16. The order was struck out on 02/02/17. X, may daughter who lives with the resp and her partner told me that they were planning to kill me. The resp had ordered a 24 calibre gun. I believe the resp will pull the trigger and shoot me. I don’t know when this will happen but I believe the resp is trying with all her power to win the family law hearing by killing me to have custody of all four children we had together. I have had to deal with the resp’s verbal abuse towards my partner, children and I for the past 18 years, with continual slander and put downs.” [I note that this was not raised with the mother in the trial by the father].
“I am so scared and worried for my son, Z who lives with the resp, I believe the resp abuses children and that Z’s sisters are displaying sexual behaviours.”
The father’s behaviour in making these allegations is in my view a significant example his lack of insight into the damage that these allegations may cause his relationship with the children, not to mention the mother.
He is naïve to think W or X would not share this, in part or whole, with their siblings and he clearly is ignorant of the potential damage this could inflict on his relationship, as their father. I could not think of a more effective way for a parent to damage their relationship with their child, short of physical violence.
(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;
In my assessment of the evidence, the parents and the children, that final orders that avoid further litigation is necessary. I will do my best to draft such orders.
(m) any other fact or circumstance that the court thinks is relevant.
Another fact that is relevant to this dispute involved Y. It appears that on or about 23 January, 2018 she was interviewed by the Police and the Department of Health and Human Services regarding purported allegations she made to the father’s partner about X assaulting her and inappropriately touching her. It further appears that she made no significant disclosures in those interviews.
It is further alleged that on the next day when the father and his partner were tidying their two bedroom cabin, he discovered an opened scrapbook belonging to Y on her bed which contained the following entry:
“Dear police when I see you today at V (sic) police station sorry i lied and I was scaryed (sic) to say the truth about my sister X kicked my flower. When I was at the bus stop I was standing near the fence. Well every time I am talking to my friend on my tablet on snapchat I scaryed (sic) to tell dad anything. and everything. About X touching me and bashing me at school. and X been touching me for 12 mounths (sic). When i am not at mums house. Just on my flower. With her hand. I tell X to stop about 10 times. To stop. and X won’t listen to me. I wood (sic) like to tell the police the truth I was to say anything today (sic) without dad in the room no one believes me. Not even my mother.”
This alleged statement was dated (in another hand) 23 January, 2019 and was one of the factors that led to this trial being adjourned to allow the Department of Health and Human Services to investigate this family.
The evidence subsequently disclosed that there is some real doubt that this was wholly created by Y. It was said she was assisted by her father. In any event, I am satisfied from the evidence of the expert witness from Department of Health and Human Services that they do not having ongoing concerns about the relationship between X and Y in the future. I note Mr C interviewed her on 5 February, 2018 at my request who said the allegations regarding her sister cannot be relied upon.
Section 60CC(2) factors
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The expression “meaningful” has been assessed by the Full Court in McCall and Clark (2009) FLC 90-405 where the Court said there are three possible interpretations of section 60CC(2)(a) and it concluded that it preferred the interpretation that was called the “prospective approach” which is where the Court should consider and weigh the evidence at the date of the hearing and determine, if it is in the child’s best interest, how orders can be framed to ensure the particular child has a meaningful relationship with both parents.
I am satisfied from the evidence that the children currently have a meaningful relationship with their mother. The real difficulty with this subsection is that the children do not currently have a meaningful relationship with their father and that has been the case for a period of time. The father has not been proactive in seeking an ongoing and regular relationship with these children. He has sought some time with Z but beyond requests with the Department of Health and Human Services, has taken it no further. It cannot be said that he has actively sought a meaningful relationship with these children.
Currently the children have stability and routine in their lives and are making significant progress in the care of the mother. Given their ages, views, their disabilities and the father’s poor parenting qualities and attitude towards the primary carer and the children, it could not be said that it is in their best interests currently for the Court to try and construct a meaningful relationship for the children with their father.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
During the second part of the trial a number of documents created by the Department of Health and Human Services were tendered. One of those was a report from the Department by child protection workers. It was dated 6 April, 2018 and set out initially details of why the Department sought an order under the Children Youth & Families Act 2005 (Vic) for the children to be declared to be in need of protection on the grounds that Y, X and Z were not protected from physical harm by their parents and were not protected from emotional or psychological harm by their parents.
They then detailed the Department’s protection workers concerns as follows:
(a)“Y, X and Z’s exposure to ongoing parental and sibling’s conflict;
(b)Y’s disclosure of inappropriate physical discipline perpetrated against Y by her father, Mr Sadbery;
(c)X’s disclosure of inappropriate physical discipline perpetrated by X’s mother, Ms Maclennan;
(d)Z’s exposure to his parent’s inappropriate discipline and parent/adolescent conflict within the home; and
(e)Y, X and Z’s ongoing exposure to the Family Law Court process and ongoing emotional harm caused by fear of instability with either parent.”
They then detailed a pattern and history of harm as follows:
“Child Protection has received fourteen previous reports in relation to X, Y and Z since 14/11/2004, with five reports leading to investigation…
Child Protection’s history relates predominately to the violence, aggression and inappropriate discipline of Mr Sadbery towards the children and Mr Sadbery’s current partner, Ms D’s children displaying inappropriate aggressive behaviours towards Ms Maclennan and Mr Sadbery’s children. Within the most recent report concerns have been raised in regards to Mr Sadbery’s homelessness, assault towards Y and Y disclosing sexual abuse her sister X and cousin AA. Further concerns have been raised regarding X’s disclosures of inappropriate discipline by her mother, Ms Maclennan…
Child Protection has issued a Protection Application by Notice through the City A Children’s court on the 14/03/2018 with the matter listed for the 12/04/2018. Child Protection are seeking for the children to remain residing in the full time care of their mother, Ms Maclennan with the ongoing monitoring and support of Child Protection.”
Under the heading of ‘Vulnerability’ the Department detailed the following:
“X, Y and Z all have significant intellectual disabilities which creates higher risks of vulnerability to all three children.
All three children are subject to NDIS plans and receive a high level of support through disability service programs such as Leisure networks, occupational therapists, speech therapists and psychologists.
The children’s aggressive behaviours have reduced significantly since being in the care of their mother, Ms Maclennan although Ms Maclennan needs ongoing support to ensure the children’s ongoing care and support…
Without Protection Intervention the children are at risk of being emotionally and physically harmed if the care of their father, Mr Sadbery and the children’s stability in their mother’s care continues to be unstable during the Family Law Court proceedings which has ultimately impacted on the children’s feeling of stability and sense of security.”
At page 2 of the Disposition Report also dated 6 April, 2018 the Department said as follows:
Mr Sadbery is 41 years of age and is the father of W, Y, X and Z. Mr Sadbery is currently in a relationship with Ms D and is residing with Ms D and her children…
Child Protection has an extensive involvement with Ms D’s children and concerns relate to Ms D’s inappropriate parenting. Ms D has an intellectual disability which impacts on her parenting decisions at times. Ms D has made it clear to Child Protection that she does not like X and wants no contact with her.”
It is clear from the Department’s records and the evidence I heard during this long trial, that the children in the care of the father are at real risk of psychological harm and possibly physical harm. Any future time he may spend with the children should be supervised at the very least.
Section 61DA and Parental responsibility
The evidence is clear that the parents have not communicated for over two years. They have no workable relationship. I cannot see how they can currently work together or co-parent for the benefit of their children. Each clearly dislikes the other with the father being particularly hostile to the mother. There has been a history of violence which is also a negative factor in this trial and is relevant to s.61DA(2). In my view, equal shared parental responsibility would not work for these parents and is not in the best interests of the children pursuant to s.61DA(4). I note that the Family Report writer and the Independent Children’s Lawyer both proposed that the mother should have sole parental responsibility for these children. In her Outline of Case at page 10 the Independent Children’s Lawyer makes a valid point when she says:
“The father also lacks insight into the children’s needs and on occasion has maintained medical professionals are wrong in their diagnosis in relation to the children. Given the father’s lack of insight into the children’s needs, it would appear that he would have difficulty making joint decisions about, in particular, the children’s need for medical treatment and counselling.”
Although the Family Report at page 33 recommended the parents should…“continue to share parental responsibility”, it is my assessment of the evidence that this is not in the children’s best interests, particularly given the Family Report was written in January, 2018 and events have overtaken the circumstances that then existed. Moreover, it would in my view lead to further litigation should I order equal shared parental responsibility, and that is clearly undesirable for these children.
Section 65DAA
This section is not relevant to this case given that the parents will not be exercising equal shared parental responsibility.
Conclusion
On Day 5 of the trial I asked the father to produce his telephone to the court given there was some debate about the communication and use of the telephone. I then asked the mother to call his telephone and when the screen lit up with what I expected to be her name, in fact it contained the offensive expression “dog”. It appears that the father has linked this expression to the mother’s telephone number and when challenged, he said that his eldest daughter, W, set this up on his phone and that he did not know how to take it off. He gave further evidence that it has been on the phone for some months. I do not accept the father’s explanation for this or that he cannot arrange for this to be taken off his telephone. This is sadly, a very clear example of his attitude to the mother.
He was asked whether the children are likely to see it and he said…“if they’re around, yes”.
On Day 8 of the trial the father was being cross-examined by the mother’s barrister about their child, W, and he said as follows:
“When she was younger, she got brought up perfectly, not a problem until she went to her mum’s and her aunty’s. That’s when smart-mouth all started (sic). That’s when a whole heap of other crap all started, and now she thinks she can get away with everything? Well it’s whole different life.. No one’s treated her nothing (sic). Have Ms D and I treated her with everything and tried to prove her with life and what the world is like out there (sic)? Yes. Does her aunty and her mother? No, because they just don’t just give a shit (sic).”
He was also asked:
“MR HENWOOD: Same page, page 9, you said – and you’re talking about Ms D. You say:
Will you stop calling Ms D fucking names? You’re an atrocious little piece of shit. Why can’t you call Ms D all the names under the sun when you were here? So who’s the weak bitch now, W?
?---Yes.
Do you agree to sending her that? ---Yes.
Over the page, page 10, you – it looks like you’re encouraging her to do something. You say:
Why don’t you some cones? Might make you feel better, might wake up, find out who the fuck you are.
Is that what you’re referring to, cones, marijuana?---Yes, because recently we found out where she was and the people that she was staying with at the time do some cones and stuff. It might - - -
- - - marijuana? --- - - - relax her.
But wouldn’t it be the last thing you would want for your children to - - - ? ---Can’t stop it.
- - - smoke dope?---Can’t stop it. It’s a weed. It’s grown in the ground. That’s not going to hurt her.”
When cross-examined about the Intervention Order sought by the father against X the following took place:
“All right. But in the case of X, even though she has consented to an order now, you didn’t worry about that, either. She’s only 17?---And X – does she know what’s actually – what she is actually doing?
I’m asking you – you didn’t worry about putting a child in the witness box in the Magistrates Court, confronting all these allegations you say about X. Didn’t worry you one bit? ---Did X worry about what she did to me?
I’m asking you the question. It didn’t worry you one bit, did it? I’m asking you that question?---I don’t think I have to answer that, really, because X didn’t think about how much it hurt me nor – or Ms D and I of all the stuff that she did to us, which is – which you are still refusing to read out and go through.”
When cross-examined by Counsel for the Independent Children’s Lawyer the following exchange took place:
“You might recall yesterday that I asked Ms Maclennan about some items of Y’s that had been at your home, and I pointed out to her, and I will remind you, that certainly my notes of the discussion at the end of the last days of hearing, which was 5 February 2018 – so I accept it’s 18 months ago. But do you recall that his Honour said to you, “Within seven days, I want Y’s things delivered to the independent children’s lawyer”? do you - - - ? ---Yes.
- - - recall that? ---Yes.
Did that occur? ---No.
Why?---(1) We brought the clothes. So (2) if Ms Maclennan wanted to bring it all into the main big court and make everybody stand up and feel sorry for her – but don’t you think if you want to take any child at all away from another parent or even want weekends or holidays or whatever, your first things first is that I better go and buy some clothes for my children so they can come on a weekend. Now, he made a week-to-week basis. So that means okay, she picks Z up – or what – just say Z, for instance. Right? School uniform on. So as soon as she picks him up from the school uniform, goes home, washes it; he wears his clothes that his mum has brought for him. On Monday morning, back on with the same uniform that he come home Friday with, after it has been washed and all that, and then back to my place, and there’s no clothes involved - - -
So - - - ? --- - - - because - - -
- - despite the fact that his Honour, as I recall - - - ? --- - - - we spent a lot of money on Y’s clothes, on Z’s clothes and whatever else, not to – to get passed around - - -
Notwithstanding the father’s earlier experience in Court in cross-examination and his dealings with the Children’s Court and the Department of Health and Human Services, the father still maintains a clear dislike and negative view of the mother. This is a significant issue in this case, which is another barrier to him having time with the children.
There are other factors however that also convince me that it is not in the children’s best interest to be spending any time with the father.
In November, 2004, in an interview with the Police regarding an alleged breach an Intervention Order, the father said he had “enough” of his “missus” (the mother in this case) saying that when having a conversation with her that “that slag started on me” (the mother) and he “lost it.” It is apparent that he grabbed her by the arm and threatened the mother and chased the mother in her home with a sledgehammer saying to the Police after being arrested, “I will F***** threaten anyone who threatens my family and I don’t care how big they are no one F**** with my family.” The children were in the bedroom of the mother’s home at the time.
He was subsequently found guilty of breaching the Intervention Order. We then move forward a number of years, as recently as 2018, when the father’s anti-social behaviour was inflicted on Dr Q. This gentleman was Z’s then Paediatrician and it was detailed in a letter dated 4 August, 2018 addressed to Z's General Practitioner, Dr R. In part the letter said the following:
“I’m writing this letter to inform you that I have discharged Z from the clinic following a discussion with his dad, who was not happy as I had started Z on Ritalin after consent from Z’s mum. Mr Sadbery was quite aggressive, abusive and threatened me of consequences as I had not taken his permission before starting Z on medications. We practice zero tolerance for abuse and this type of threatening behaviour. As a result I have discharged Z from my clinic.”
When questioned about this, the father tried to justify his behaviour and said he could not see any difficulty with Z seeing another paediatrician and not attending the one that treats his sisters.
The relevance of the events of 2004 and 2018 commented on above, is to highlight the long standing nature of the father’s aggressive and anti-social behaviour when he is offended by some event or behaviour of others. His presentation was similar from time to time in the trial when being cross-examined. This is not only a psychological threat to Z’s well-being but he presents as a really poor role model for his son.
On 14 March, 2017 I made a Consent Order for the children to live week-about with their parents. From around June, 2017 Z refused to transition from the mother’s care into the care of the father complaining that his father was yelling at him …“too much and all the time.”
Thereafter their relationship began to fail with Z not seeing his father regularly. It came to a head in late July and early August, 2017 when Z again refused to see his father. On 2 August, 2017 his father went to Z’s school to collect him without apparent notice to the mother who was also there to collect him. The Principal of the school reported to the mother that Z was refusing to go with his father and Child Protection attended the school that day and undertook an interview with Z. It appears that the father forced the issue by carrying Z and removing him from the school. According to the mother, Z was refusing to voluntarily leave with the father and was kicking, crying and screaming.
This is an unfortunate example of the father’s poor parenting to create such a traumatic event for Z that could well have contributed to the child refusing to see his father for well over two years.
It is important to note that while I put some weight on Z’s long-standing consistent expressed view that he does not want to see his father, this is just one of the many factors that led me to decide that it is not in his best interests to spend time with his father. The father’s poor parenting skills, his often aggressive responses to views or actions he does not agree with, his use of violence not only against his former partner, but also noting the evidence of Mr C that he felt Y was telling the truth when she said that she had been hit by her father repeatedly, and the father does not have a great deal of insight into the effect of his behaviour on others.
In my view, these are all very strong indicators for Z to not to spend any time with his father. Although Y has not seen her father since 29 January, 2018 she has expressed a clear wish on occasions to see him. If she asks to see him in the future, I have made an order for the parents to arrange that but it should be supervised given the child’s disabilities and the father’s very negative view of the mother.
I certify that the preceding one-hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 18 December 2019
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Family Law
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