MAFFLE & SEGAL

[2016] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAFFLE & SEGAL [2016] FCCA 2125

Catchwords:
FAMILY LAW – Parenting – orders sought by applicant father – orders for sole parental responsibility and no time/communication spent by father with children sought by respondent mother – father has consistently refused to comply with orders of the Court – matter heard on an undefended basis – orders made for mother to have sole parental responsibility– orders made for father to have no time or communication with children – father’s application dismissed.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR MAFFLE

Respondent: MS SEGAL

File Number: MLC 4574 of 2015

Judgment of: Judge Wilson

Hearing date: 12 August 2016

Date of Last Submission: 12 August 2016

Delivered at: Melbourne

Delivered on: 18 August 2016

REPRESENTATION

Applicant in person

Counsel for the Respondent: Ms M. Agresta

Solicitors for the Respondent:	Lampe Family Lawyers
Counsel for the Independent Children’s Lawyer:	Ms D. Weiner
Solicitors for the Independent Children's Lawyer:	Perry Weston Lawyers

ORDERS

1. The mother is granted leave to proceed on an undefended basis.

2. All previous parenting orders are discharged.

3. The mother have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2013 (“the children”).

4. The children live with the mother.

5. The father spend no time, or communicate, with the children.

6. The order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 2011 and Y, female, born (omitted) 2013 from the Commonwealth of Australia dated 9 September 2015 is discharged.

7. The Australian Federal Police remove the name of the children from the Airport Watch List at all points of international arrivals and departures in Australia.

8. The appointment of the Independent Children’s Lawyer is discharged.

9. All extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4574 of 2015

MR MAFFLE

Applicant

And

MS SEGAL

Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application filed 10 June 2015, Mr Maffle (“the father”) sought parenting orders in relation to his daughter X born (omitted) 2011 and aged 5 years and his other daughter Y born (omitted) 2013 and aged nearly 3 years (“the children”). Ms Segal (“the mother”) applied for orders granting her sole parental responsibility for the children and for the father to spend no time or communicate with the children.

Synopsis

1. For the reasons that follow, in my judgment orders should be made in accordance with the mother’s application granting the mother sole parental responsibility in relation to the children. I further order that the father spend no time, or communicate, with the children.

Relevant factual history

1. By reason of this proceeding being heard on an undefended basis (for reasons that are explained below) a short recital of relevant facts should be given.

2. At the date of the hearing of this proceeding the father was 45 years of age. At the date of the hearing of this proceeding the mother was 34 years of age. The parties formed a relationship in 2009 and finally separated in 2013.

3. By occupation, the mother is a homemaker. She arrived in Australia as a refugee but has subsequently attained Australian citizenship.

4. The father was born in Australia. He is unemployed.

5. To say that the relationship between the father and mother was pervaded throughout with toxicity is an understatement of massive proportions.

6. The evidence adduced on behalf of the mother told of sustained, repeated incidents of physical, emotional and sexual violence inflicted by the father upon her. That state of affairs first became apparent prior to the birth of the children and continued throughout their relationship until final separation. The mother has been the unwilling victim of that violence for a sustained period of time. No excuse could possibly be offered still less accepted for the physical, emotional and sexual violence exhibited by the father, according to the evidence of the mother.

7. It must be said at the outset that this proceeding was conducted as an undefended application. The father sat in the body of the Court throughout the hearing of the proceeding before me. I did not permit him to sit at the bar table. After being warned that his conduct was unacceptable and that it would not be tolerated during the hearing of the proceeding before me and that continued unacceptable outbursts may lead to his being dealt with for contempt or his physical removal from the body of the Court and within the hearing of the Court, ultimately the father sat in the body of the Court, silently and did not participate in the proceeding.

8. The explanation for that seemingly harsh approach towards the father lay in his constant, wilful, obdurate refusal to comply with interlocutory orders made previously by his Honour Judge Burchardt in 2015 and by me earlier this year.[1] Last year, his Honour Judge Burchardt ordered the father to attend for examination and report by a psychiatrist. That order was made with the consent of both parties. The father refused to comply with that order. In April of this year when it became apparent to me that the father had deliberately refused to comply with the order made by consent by his Honour Judge Burchardt, I ordered the father to comply with that order in default of which the proceeding would be heard at an undefended trial.

   [1] Order of his Honour Judge Burchardt made 23 November 2015; orders of his Honour Judge Wilson made 12 February 2016 and 26 April 2016.

9. The father refused to comply with my orders as well. On the hearing of the trial of this proceeding, the father presented himself at the bar table. Ms M. Agresta of counsel appeared for the mother and Ms D. Weiner of counsel appeared for the Independent Children’s Lawyer. I asked the father whether he had complied with my previous order to subject himself to psychiatric examination for the purposes of obtaining a report. He said he had not. The father said he had a reason for disobeying that order. He said his reason was the existence of a conspiracy orchestrated by the mother leading to her obtaining intervention orders against the father. The father’s explanation was nonsensical. In addressing me he was rude, discourteous, irrational, bombastic and offensive. I warned him that by reason of his failure to comply with orders previously made by his Honour Judge Burchardt and by me that in the absence of a psychiatric report the trial of this proceeding would proceed on an undefended basis. The father challenged such a proposition. I told the father that he had been given an abundance of warning of the likelihood of that fact coming to pass. He resisted. I directed him to vacate the bar table and offered him the opportunity of sitting in the well of the Court. I told him that if he remonstrated, was rude or discourteous he faced being dealt with for contempt or being removed from the Court and within the hearing of the Court. Ultimately, for the duration of the trial of this proceeding, the father remained compliant in the well of the Court.

Consideration

1. On behalf of the mother, Ms Agresta relied on three affidavits filed by her client,[2] a s.11F memorandum[3] and a psychiatric report prepared by Dr A.[4] Ms Agresta also relied on the reasons for judgment of the magistrate that heard and determined the intervention application brought by the mother against the father.[5]

   [2] Affidavits of Ms Segal filed 1 October 2015 and 20 November 2015.

   [3] Child Dispute Conference Memorandum to Court prepared by Family Consultant Ms M dated 9 October 2015.

   [4] Psychiatric Assessment and Report prepared by Dr A dated 8 August 2016.

   [5] Affidavit of Ms Segal filed 20 November 2015 at annexure “S-1”.

2. I have read and considered the contents of each of those documents. They tell a remarkable story of physical, emotional and sexual violence orchestrated by the father upon the mother over a sustained period of time. They tell of the impossibility of the practical implementation of equal shared parental responsibility. The reasons for judgment of Magistrate Jones give voice to alarming findings of fact in respect of family violence. The psychiatric assessment of Dr A paints a picture of tolerable normality in the psychiatric state of the mother.

3. Conversely, on the two occasions during which the father interacted with me, I was able to assess his behaviour. I found him to be extraordinarily difficult - he refused to listen to matters that I put to him, he answered in an irrational and illogical way to many propositions I put to him, he was obdurate and he was uncooperative in the extreme. I fully understood why his Honour Judge Burchardt required him to submit himself to a psychiatric assessment. The father’s refusal to subject himself to psychiatric assessment indicated to me that he either had a disrespect for the law or that he himself may have suffered from psychiatric problems.

4. The father’s explanation for his refusal to comply with orders that required him to subject himself to psychiatric examination and assessment were wholly unsatisfactory. As a consequence, the case was tried on an undefended basis and no cross-examination was engaged in.

5. The affidavit material sworn by the mother indicated a fundamental distrust and breakdown in the relationship between the mother and the father. I entertain no doubt that the cooperative arrangements that are required in equal shared parental responsibility would have no prospect of effective operation if I were to order equal shared parental responsibility. The mother deposed in considerable detail to many incidents in which the father was wholly offensive towards her, towards the children and towards the basic day-to-day issues that must be routinely addressed when equal shared parental responsibility is involved. The father’s exchanges with me indicated his defiant attitude. That tended to bolster the information provided in the s.11F memorandum by Family Consultant Ms M who spoke of the disrespect exhibited by the father towards the mother.

6. For a considerable time the children have lived with the mother and the father has had no interaction with the children.

7. Ms Weiner, counsel on behalf of the Independent Children’s Lawyer submitted that the best interests of the children were served by the mother having sole parental responsibility. She said with that eventuality the scope for conflict was thereby eliminated. The children will have a harmonious existence, free from the divisive influence of the father.

8. There is real force in Ms Weiner’s submissions in that regard. I also found Ms Agresta’s submissions compelling when she contended that the presumption in favour of equal shared parental responsibility was rebutted in the circumstances of this case, largely on account of the fundamentally uncooperative approach exhibited by the father and on account of the history of family violence perpetrated by him.

9. In debate with Ms Agresta, I put to her that her proposal for the mother to have sole parental responsibility until the children attained their majority, on one view, orchestrated a considerable hardship upon the father and potentially put at risk the possibility of the children having any interaction with the father during the formative years of their lives. Ms Agresta correctly pointed out that at any time between now and the date upon which each child turns 18, the father, on appropriate material may apply to the Court for modification of the orders urged today.

10. For the purposes of making orders today I have taken into account all of the statutory considerations that I am required to take into account in determining whether sole parental responsibility in the circumstances of this case advances the best interests of the children. I have also taken account of each of the elements of s.60CC of the Family Law Act 1975 (Cth) to ascertain what truly is in the best interest of the children.

11. While it is true that Family Consultant Ms M did not, in terms, recommend the mother have sole parental responsibility for the children, equally, Family Consultant Ms M was critical of the father in material ways. She indicated that the father had no capacity for insight into the appropriateness of his perception of the mother as being inferior to himself. Family Consultant Ms M said the children will require protection from their father’s toxic views of the mother which he readily expressed. She recommended a psychological assessment. That was in October 2015 and no doubt founded the orders made by his Honour Judge Burchardt requiring the father to undertake a psychiatric assessment in accordance with the orders made 23 November 2015.

12. A detailed examination of the report of Dr A dated 8 August 2016 reveals disturbing aspects of the personality of the father. Of course those observations were not based on a physical assessment by Dr A – the father refused to subject himself to that. However, those observations were volunteered based on information given to Dr A by the mother. For the purposes of parenting proceedings where strict rules of evidence are significantly relaxed, I have not relied on those observations by Dr A as proof of the fact of the matters having occurred but rather as proof of the existence of behaviour, which when added to other behaviour manifested by the father, raised in my mind very real concerns about the mental state of the father and his capacity to advance the best interests of the children, whether in a meaningful way or at all.

13. The father has exhibited extremely concerning, disturbing behaviour in his general demeanour before me, in the conduct of this litigation, in his persistent refusal to subject himself to psychiatric assessment and in his conduct during two hearings before me. As a result, I have a greater willingness to accept the version of events given by the mother about the violence exhibited by the father and its infliction of physical, emotional and sexual abuse on the mother as she alleged. To my mind, that is of very great concern in and telling against the grant of equal shared parental responsibility. It seems to me that the children are best placed in the nurturing watchful care of the mother in circumstances where sole parental responsibility is granted in her favour.

14. In my view, the father should have no time with the children. His behaviour will expose them to the risk of physical or emotional violence. The father’s conduct is unchecked, unacceptable and ought not to be condoned by this Court. This is not to say he may never have time with his children. If he demonstrates a fundamental shift in his current behaviour that may come to pass – but not until. His behaviour is mercurial, inconsistent, inexplicable and unacceptable. I will not imperil the children by granting him time with them at present.

15. For the above reasons I make orders in accordance with the mother’s proposal.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 18 August 2016