Mathieson and Hayward

[2017] FCCA 1719

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHIESON & HAYWARD [2017] FCCA 1719

Catchwords:
FAMILY LAW – Parenting – best interests of the child – father engaged in family violence and methylamphetamine use – mother to have sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), s.60CC(3)

Rice v Asplund (1979) FLC 90-725

Applicant: MR MATHIESON

Respondent: MS HAYWARD

File Number: ADC 4706 of 2008

Judgment of: Judge Young

Hearing dates: 20, 21, 22, & 23 June 2017

Date of Last Submission: 23 June 2017

Delivered at: Adelaide

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Gilbert & Partners

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Adelaide Family Law

Counsel for the Independent Children’s Lawyer: Ms Lee

Solicitors for the Independent Children’s Lawyer: Nelson & Co Solicitors

ORDERS

1. That the mother has sole parental responsibility for X born (omitted) 2007 and X born (omitted) 2007 (‘the children’).

2. That the children live with the mother.

3. That X is to spend time with the father for two hours in alternate weeks:

   (a)under the supervision of Mr F;

   (b)that the parties are to take immediate steps to enrol in the children’s contact centre, as recommended by the independent children’s lawyer.

   Thereafter X may spend supervised time as can be accommodated by the children’s contact centre. 

4. That the father seek a referral for a drug assessment and counselling to an appropriate service such as (omitted).

5. That within twenty-four (24) hours the father forthwith upon the request of the Independent Children’s Lawyer undergo drug testing on two occasions in the form of hair follicle testing.

6. That the father is restrained from cutting or bleaching his hair after the request and prior to the hair follicle test.

7. That the father forward a copy of the results of such tests to the independent children’s lawyer as soon as they become available OR the parties file and serve an affidavit annexing the results of such testing forthwith upon receipt of same and prior to the adjourned date for hearing

8. That the father pay the costs of the drug testing. 

9. That the father seek a referral or mental health care plan to Mr A and/or (omitted) Counselling with a view to a therapeutic intervention to deal with his emotional regulation and impulse control, and his relationships with his children.

10. That the parties are to take steps as specified by the independent children’s lawyer, to enrol in a course of family therapy, as may be advised by Mr A and/or (omitted) Counselling. 

11. That the parties have liberty to apply for further orders on short notice.    

12. That these reasons are to be made available to any treating doctor, psychologist, or counsellor, and the family reports, and any affidavit the Independent Children’s Lawyer considers relevant.

13. That the matter be adjourned for mention to 19 March 2018 at 9:30am.

14. That the application for contravention be adjourned for mention to 19 March 2018 at 9:30am.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4706 of 2008

MR MATHIESON

Applicant

And

MS HAYWARD

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.  

2. This is a parenting matter involving two children:  Y, who is nine years old, and X, who is 11.  The parties separated many years ago but ultimately they agreed on parenting orders in 2009 which provided for the children to live with their mother and spend time with their father.

3. This arrangement appeared to go smoothly until 2015.  The precise event or events or factors that precipitated the breakdown of the relationship between the parties is unclear.  The father says that he was the victim of a false report to police that he was manufacturing methylamphetamine and in possession of firearms.  It is unclear how that came to be reported but it appears it may have been based on a report to the school at which the children attended or something that the mother’s older child, A, told his school teacher.  As I say, that is unclear and it is really unnecessary to resolve that.

4. The father was arrested and charged as a result of police inquiries and was convicted, as I understand it, of possessing cannabis and some relatively minor firearm offences.  He says that it involved a slug gun and slugs.

5. Whatever the truth of that matter, the fact is that the father was convicted of a drug offence, perhaps a relatively minor one, and a firearms offence, again perhaps a relatively minor one, but he put himself in the position of being subject to police investigation and charges brought under the criminal law.  The father, in his evidence, clearly blamed the mother for that event.  He believes, in the absence of any evidence to support it, in my view, that she somehow manufactured that situation. 

6. The father later made a report to the child welfare authorities about a bruise on Y’s eye.  Y had told him that the mother had assaulted her.  The police were called and the matter was investigated.  No charges were ultimately made against the mother, or, at least any charges were dropped.  The police, according to the mother, interviewed her and the child and concluded that Y had been swinging a paper weight in a bag and hit herself in the eye. Given that the mother was not charged, or that charges were dropped, I see no reason to conclude that anything criminal was done by the mother.

7. This, however, is not accepted by the father who remains convinced that the mother assaulted the child, notwithstanding that the only thing the parties agree about in this case is that Y is prone to tell lies, is manipulative and is not always to be believed.  These events then appear to have precipitated a series of accusations, counter accusations, and reports to the police and the welfare authorities.  It has seen a complete breakdown between the parties, a breakdown of their relationship and any trust between them.   

8. For most of these matters, I cannot make any finding.  I do find that there is no evidence that the mother has assaulted Y or otherwise abused her.  There was an allegation by the father that Y was neglected and cut herself.  He was referring to Y arriving with a cut knee.  The mother says that the child had played on the floor and cut herself on a fragment or a piece of ceramic that had been broken and that she, the mother, had failed to notice.  I see no reason, at all, to disbelieve the mother about that.  There is not the slightest evidence that she has abused Y or either of the children.    

9. It is not entirely a one-way street however. There was also an insinuation recorded by Mr M, the family report writer, made by Ms Hayward that Ms C had inappropriately bathed Y.  That insinuation was expressly disavowed by Ms Hayward in evidence but I do note that while she said in evidence to me that she had not told Mr M that claim was not put to Mr M in cross-examination.  I am satisfied that the mother did make an insinuation, though to her credit, when pressed, she expressly disavowed it and withdrew it.

10. I think that, in all likelihood, is an example of what happens when hostility develops between parties and trust breaks down.  There is a tendency to see the worst in the other party and, certainly when the authorities are involved, to paint the other party in the darkest light that they can be painted.  In itself, that is not an unusual situation in litigation in these courts. However this is not simply a matter of both parties mistakenly believing the worst of the other, although I think there are significant elements of that.      

11. There are two clear examples of family violence demonstrated in this case.  One was at a scheduled changeover of the children in a McDonald’s restaurant in August 2016.  The parties arrived at McDonald’s with Ms K accompanying the mother and Ms C accompanying Mr Mathieson along with his mother.  Again, it is difficult to make any findings but the parties agree that words were exchanged.

12. Mr Mathieson says that Ms K was about to punch Ms C (but did not) and he intervened by pushing Ms K away.  He says that she, Ms K, then attacked him and scratched him and punched him. He then punched her in the head.  It appears that Ms K was not seriously injured, or there was certainly no evidence to that effect, but nevertheless this was not an insignificant matter.

13. The children were apparently present in the restaurant throughout this exchange.  I am far from satisfied that the violence used was in any sense necessary or justified.  On Mr Mathieson’s version of events he was the first to apply force.  He says he did so to avoid Ms C being punched by Ms K.  I am not satisfied that that is true.  Ms C certainly did not give any clear evidence that she was at risk from Ms K of being punched and I am not satisfied that that is how it occurred at all.

14. Nevertheless, Ms K was punched and she was punched hard in the face or the head.  It is a bit unclear.  That was an aggravated assault in my view and it occurred in front of the children or at least while the children were present.  It is the sort of violent assault that clearly constitutes family violence within the definition in the Family Law Act 1975 (Cth) (‘the Act’) and, in my view, exposed the children to the risk of psychological harm. It is therefore a matter that the court must view with the upmost seriousness.

15. Another significant event occurred in January of this year.  The police were called to the home of Ms C, Mr Mathieson’s partner, where she was living with Mr Mathieson.  A neighbour called the police after, I am satisfied, a request made by Ms C to call the police.  Mr Mathieson was arrested and taken into custody by the police.  That was also witnessed by the children.

16. Both Mr Mathieson and Ms C downplayed the seriousness of that event.  Mr Mathieson even goes so far as to blame it all on Ms C’s former partner, who was said to be in league with Ms Hayward.  Y is said to have called him or her mother and he is said to have reported it to the police.  In fact, the police records make it clear that the neighbour was concerned for Ms C’s welfare and safety and called the police.

17. I am satisfied that there was a long, loud verbal argument, loud enough to be heard by the neighbour, and at some point Mr Mathieson put his hand over Ms C’s mouth, held her head, and shook it.  Ms C agrees with that.  The police report suggests that a witness, who is not clearly identified in the police report but who I infer is likely to be Ms C, said that Mr Mathieson shook her head “violently”.

18. I think it is unnecessary for me to make a definitive finding about whether Ms C’s head was shaken violently or not.  She was certainly shaken and, in my view, that also amounts to an assault.  Ms C is inclined to excuse Mr Mathieson for his actions.  It was said by Mr Anderson in submissions that the pattern of a victim of family violence excusing the perpetrator is one that is well known in this court, and he submitted that that was what was occurring in this case.  I think that is likely to be the case.

19. I am satisfied that the children were exposed to family violence on both occasions.  I am satisfied that Mr Mathieson, in particular, does not understand the consequences of his actions, the effect on his children and the seriousness of his conduct.  Mr Mathieson lacks insight and powers of reflection.  He irrationally and wrongly believes all of his troubles are the result of a conspiracy by Ms Hayward.  In fact, most of Mr Mathieson’s troubles are the direct consequence of his own actions.

20. I am satisfied that the most significant factor in this case is the conduct of Mr Mathieson, his lack of insight, and his inability to reflect.  This is demonstrated or has been demonstrated in other ways.  Mr Mathieson has continued to use methylamphetamine throughout these proceedings.  He says it is an occasional use, perhaps once a month.  In 2015, he returned positive tests for methylamphetamine in two drug tests.  At the beginning of this year, he was picked up by the police and charged with driving under the influence of methylamphetamine. He conceded that there had been another occasion recently (but was vague about how recently) when he had also used methylamphetamine.

21. The significance of Mr Mathieson’s methylamphetamine use is a little hard to assess in this case.  It is a little hard to know how often he uses methylamphetamine.  In his own words, it would appear to be at least once a month but it may well be more given what I find is a proclivity of Mr Mathieson to downplay or deny any negative aspects of his behaviour.

22. When I asked Mr Mathieson about what he thought the consequences of his drug use might be he objected that the focus of the proceeding should rather be on the mother’s abuse of the children rather than his drug use which, according to him, did not affect his parenting capacity.  I think, at this stage, and absent any therapeutic intervention, Mr Mathieson will continue to use methylamphetamine because he sees no reason to stop using it.

23. Mr Mathieson also has a serious inability to regulate his emotions.  He is angry about these proceedings, he blames the mother, the courts, the lawyers, the police, and welfare.  He himself takes no responsibility.  In a disturbing demonstration of his anger, he left the court during the cross-examination of his partner, Ms C, by the independent children’s lawyer. 

24. The cross-examination was perfectly proper, it was relevant, and it was respectful in tone.  As Mr Mathieson left the court he slammed the court door – a heavy and large door – violently against the wall. Although I did not see this, and I make no finding about it, it was said that he initially moved towards cross-examining counsel but was deflected by his solicitor.  As I said, I make no finding about that aspect of the matter.

25. I am satisfied that Mr Mathieson has a short and violent temper and he is unable to regulate his emotions or control his impulses.  He told me he understood why men involved in family law litigation commit suicide.  He did not express any suicidal intention himself, I might say. Ms C said in evidence that this was a matter Mr Mathieson spoke about on a number of occasions.  It was something also confirmed by Mr M, the family report writer, who said that he had said similar things to him.

26. Taking all these matters into account, I have some grave doubts about Mr Mathieson’s parenting capacity or, at least, the insight necessary to understand the impact of his conduct on his children.  I am not suggesting he suffers from any mental illness but I am satisfied that he is angry, sometimes violent, and continues to use methylamphetamine on a regular basis.   

27. The family report writer commented in evidence on these issues.  He said that the father consistently had refused to accept any responsibility for the conflict between the parties.  Mr Mathieson still considered the mother to have physically abused the children and saw himself, in the words of the family consultant, as a “white knight” against an indifferent child welfare system, police, and court system. He was isolated and the only person able to adequately protect his children.

28. In my view, the family report writer’s observations were amply borne out in the evidence. I have referred to some of the matters that I consider to have been demonstrated in the father’s evidence that supported the family report writer’s observations.  The family report writer also wondered if the father’s inability to control his anger and his impulses and his continued drug use were not symptomatic of some other underlying condition.  That was speculation but it is, in my view, a speculation that was merited.

29. The family report writer was of the general view that unless the father was to change some aspects of his personality, or at least his attitudes and outlook, there was no real prospect of the children being in a safe environment when in the father’s care.  I accept that view.

30. The family report writer considered that there was no real guarantee that the father could change.  His view was that the father’s attitudes had been consistent over about two years, and I might say the family report writer has produced three reports spanning about two years, so he knows the father well and he is very familiar with this family.

31. The mother’s position was that the correct approach in this case was to make no order for the children to spend time with the father and leave it to the father to take up these issues and address them with therapeutic intervention if he wished and apply to the court again at a later time.  He would have to, of course, get over the Rice & Asplund hurdle and show that there was some relevant change in circumstances that would make a change of orders likely.  I consider that that approach, which was supported by the independent children’s lawyer, is one that was reasonable, supported by the evidence and reasonably open to both counsel for the mother and counsel for the ICL to adopt.

32. That was put to Mr M as the preferable course in this case, given that Mr M was recommending some therapeutic intervention, not only for the father but indeed for the family, as a way of attempting to remove what he considered to be an unacceptable risk to the children in the present arrangements.

33. The family consultant was reluctant to endorse that approach and considered that there was a risk, in particular, to X who appears to want a relationship with his father and who still, according to the family consultant’s opinion, has an intact relationship with his father.  He thought that it was in X’s best interests that every possibility for maintaining that relationship be explored.

34. The situation with Y was different.  The family consultant was of the view that the relationship between Y and her father had broken down to a serious extent and he saw no prospect, at this stage, of an order that Y spend time her father having any efficacy. Indeed he thought it was likely to be counterproductive.  I agree with that opinion as well.

35. The family consultant thought that ideally the father would seek a referral to a Mr A at (omitted), who, according to Mr M, has an excellent reputation, both national and international, for dealing with – he put it in simple terms – angry men such as the father. 

36. Mr M thought that some sort of family therapy with X was also desirable, not necessarily with a view to reunification, but to consider whether the father had engaged or was capable of some commitment to change of attitude.  He also thought that the proposal of the mother and the ICL was less than optimal, if I can put it that way, because he thought there ought to be some management of any process of therapy or intervention with this family.  It should be, as he put it, “under one roof”, and he thought if there was a referral to Mr A’s institution, which I understand is called (omitted) Counselling, there was a possibility of a multi-pronged approach by different people with different members of the family.

37. I think there is some attraction in that.  Another factor that I take into account is the father’s proposal, which was developed by his counsel, along the lines that there ought to be a therapeutic intervention, and subject to X’s wishes, that X should be permitted to spend supervised time with his father over the next period of a few months, and, in that period, that the father take steps to address these issues that I have been discussing and the matter be brought back to the court in March.

1. To my mind, the attraction of that course is that it sets a timeline for resolution of this matter.  Regrettably it would result in an adjournment and a part-heard trial, which is undesirable generally speaking, but it would allow for resolution at a specific time early next year.  If the father had not demonstrated any commitment to change or shown any evidence that his attitudes have changed then the likely result would be an order that the children not spend time with him. I think that would be the unavoidable consequence.

2. If, on the other hand, the course proposed by the mother and the independent children’s lawyer were adopted, that is, simply an order for no time at the moment leaving it up to the father to return to the court, thereby, according to counsel, giving him an incentive to act then it will be unclear when the matter will be resolved.  It could come back in a year.  It could come back in 18 months.  It could come back in two years.  Who would know?  When I say “come back”, I mean an application to the court for orders.

3. I am not satisfied that that course is in the best interests of the children in this family.  I can see why the submission is made but it seems to me to run the risk of prolonging the anxiety that the mother and probably the children feel about the resolution of this case.

4. Turning to the Act, the best interests of the children are the paramount consideration. The primary considerations in determining what is in the best interests of the children are, first, the benefit to the child of having a meaningful relationship with both of the child’s parents, and, secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence, and greater weight is to be given to the second consideration.

5. There are additional considerations in subsection 60CC(3) and I will turn to those in a moment. There is a presumption of equal shared parental responsibility which does not apply if a party has engaged in family violence. I have found that the father has engaged in family violence and therefore the presumption of equal shared parental responsibility does not apply. Only if the presumption applies is it necessary to consider equal or substantial and significant time under the scheme of the Act.

6. As I have said, in this case I find that the father has engaged in family violence on at least two occasions, on 27 August 2016 at the McDonald’s changeover and in January 2017 at Ms C’s home.  In both cases the children were present.

7. In my view in this case, given the prolonged history of dispute between these parents, an order for shared parental responsibility is not appropriate.  In particular, there is uncontested evidence or, at least, evidence that is not contested by any expert that X suffers from ADHD and has been prescribed Ritalin by a paediatrician, Dr R. 

8. The father has consistently asserted that X does not need a prescription of medicine such as Ritalin and has opposed its use.  Indeed, at one point, after being challenged by the father or the father objecting to the prescription of Ritalin, Dr R ceased the prescription for some time. I understand that has been reinstated but that is indicative of some of the difficulties in this case. 

9. I am satisfied that the mother should be free to choose the medical practitioner from whom she seeks advice about the children’s health, and to act on the advice of that medical practitioner and I am satisfied that she should be free to make the ultimate decision about such things as the medical treatment of the children.  She should inform the father of any issues of medical treatment but she will be left to make the ultimate decision.  So for that reason I am going to make an order that she have sole parental responsibility.

10. The additional considerations in subsection 60CC(3) are, relevantly, as follows.

11. Subsection(3)(a): the wishes of the child.

    X has expressed a view that he wishes to continue a relationship with his father in, if I can paraphrase the family report, in safe circumstances.  Y does not want to have anything to do with her father at the moment and I am satisfied that she ought not be obliged to spend any time with her father.

12. Subsection(3)(b): the nature of the relationship with the child with each of the child’s parents and any other person.

    The relationship between Y and her father has broken down.  The relationship between X and his father is intact, according to Mr M, the family consultant, but is clearly in some danger of breaking down.  I am satisfied that, subject to all of the caveats and provisos that I have mentioned, in particular the need to protect these children from psychological harm, that X would benefit from a meaningful relationship with his father.

13. Subsection (3)(c): the extent to which each of the child’s parents has take or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, spending with the child, and communicating with the child.

    I have mentioned one of the issues relating to long-term issues regarding the children’s health, and, in my view, the mother has acted responsibly in relation to that and has sought and taken the advice of a paediatrician.  The father has rejected that advice but not offered any alternative expert advice.

14. Subsection 3(c)(a): the parents’ fulfilment of obligations to maintain the child.

    I have not heard any evidence about the extent or otherwise of the parents having fulfilled or failed to fulfil obligations to maintain the children. 

15. Subsection 3(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child on any separation from either of his or her parents or any other child.

    The effect of the orders I make will be that Y is not obliged to spend time with her father and neither will X be obliged to spend time with his father but I will make orders that permit him to spend supervised time with his father.

16. Subsection (3)(e): practical difficulties of spending time or communication arrangements.

    There is no evidence about the practical difficulty of the children spending time with either parent.

17. Subsection (3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. 

    This case largely centres on this issue.

18. As is clear from all of the evidence, the father’s lack of insight and limited powers of reflection indicate that his capacity as a parent, particularly with regard to the emotional and psychological needs of the children, is limited.

19. It was said that he loves the children and he has pursued this litigation.  The family consultant observed that while the father professes to love the children, the fact remains that the father has not demonstrated any commitment to change.  The family consultant said that all problems, according to the father, relate to other people.  That is certainly borne out by my observations in this trial.

20. Subsection (3)(g): other relevant characteristics of the child.

    There is no additional matter that merits comment under that heading. 

21. Subsection (3)(h) is not relevant. 

22. Subsection (3)(i): the attitude to the children and responsibilities of parenthood. 

    I have made remarks about that issue.  It is central and I do not need to add anything more to it.

23. Subsection (3)(j): any family violence involving the child.

    I have already made observations about that important issue in this case.

24. Subsection (3)(k): if a family violence order applies.

    I am not aware of any family violence order applying at the moment.

25. Subsection (3)(l): whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. 

    It appears to me that that is relevant in this case.  The course that I propose to adopt will see this proceeding as a part-heard trial before me. 

26. The course proposed by the counsel for the mother and the independent children’s lawyer would necessitate the father, if he wished to proceed or wished to pursue having the children spend time with him, filing further proceedings.  That is a factor I take into account. Further proceedings, in my view, would involve additional anxiety and delay for the parties involved. 

27. The course I propose to take which will see the matter adjourned is perhaps hardly less preferable but I consider, for the reasons that I have already given, that it is the slightly more preferable course. 

28. Subsection (3)(m). There are no other facts or circumstances that I consider relevant.

29. I propose to make orders in these general terms.

30. That the mother has sole parental responsibility for the children.

31. The children are to live with the mother.

32. That X is to spend time with the father for two hours in alternate weeks:

    a)under the supervision of Mr F;

    b)that the parties are to take immediate steps to enrol in the children’s contact centre, as recommended by the independent children’s lawyer.

    Thereafter X may spend supervised time as can be accommodated by the children’s contact centre.  Just to be clear, the time is to be subject to X’s wishes.   

33. The father is to seek a referral for a drug assessment and counselling to an appropriate counselling service, which may be (omitted). The father is to seek a referral or mental health care plan to Mr A and/or (omitted) Counselling with a view to a therapeutic intervention to deal with his emotional regulation and impulse control, and his relationships with his children.

34. That the father is to submit to two hair follicle drug tests at his own expense at a time to be nominated by the independent children’s lawyer. 

35. That the parties are to take steps, such steps as are specified by the independent children’s lawyer, to enrol in a course of family therapy, as may be advised by Mr A and/or (omitted) Counselling. 

36. I am going to adjourn the matter and application for contravention for mention to 19 March 2018 and I am going to give liberty to apply.  

37. These reasons are to be made available to any treating doctor, psychologist, or counsellor, along with the family reports and any affidavit the ICL considers relevant.

38. I will make orders in terms of 12, 13 and 14 in the mother’s outline. I propose 12, 13 to be final orders and I will make 14 until further order.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  25 July 2017