McCabe and McCabe

[2019] FCCA 3023

FEDERAL CIRCUIT COURT OF AUSTRALIA

McCABE & McCABE [2019] FCCA 3023

Catchwords:
FAMILY LAW – Parenting – Where the father was seeking time with his children but did not attend the trial – adjournment application dismissed and undefended hearing conducted – where the father poses a significant risk of harm to the mother and the children – order made for no time and no communication.

Legislation:

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

Applicant: MR McCABE

Respondent: MS McCABE

File Number: NCC 2488 of 2017

Judgment of: Judge Terry

Hearing date: 30 September 2019

Date of Last Submission: 30 September 2019

Delivered at: Gunnedah

Delivered on: 30 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Kelly

Solicitors for the Applicant: Hepmac Lawyers

Counsel for the Respondent: Mr Davies

Solicitors for the Respondent: Rice More & Gibson Solicitors

ORDERS

1. The application in a case filed on 19 September 2019 is dismissed.

2. The applicant’s counsel is granted liberty to withdraw from the proceedings.

3. All previous orders relating to the children X born … 2006, Y born … 2013 and Z born … 2010 (“the children”) are discharged.

4. The mother shall have sole parental responsibility for the children.

5. The children shall live with the mother.

6. The father shall spend no time with and have no communication with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

NCC 2488 of 2017

MR MCCABE

Applicant

And

MS MCCABE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and 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. I have before me an application for parenting orders filed by Mr McCabe (“the father”). The orders he was seeking were orders which would allow him to spend time with his children X, Y and Z.

3. The mother filed a response and in due course various interventions occurred. A child-inclusive child dispute conference took place and a family report was prepared in December last year.

4. X and Y refused to see the father at the family report interviews. Z, who was extremely young when the parties separated, agreed to see him but the family report writer ended that interaction a little early because she was concerned about it.

5. It appears that Z had been curious about seeing his father but after returning from the observation session he said that he had seen him and that was all he wanted.

6. The report writer recommended that the report be read to the father by his legal advisor given safety concerns and that the mother have sole parental responsibility for the children, that she be permitted to relocate to an area of her choosing where she had support (which is Town A, it is not that far away) and that the children not spend time with the father unless they chose to do so and unless it was in a closely supervised environment.

7. The father did not accept those recommendations and the matter was listed for trial before me in the Gunnedah Circuit.

The father’s application for an adjournment

1. The matter has been listed before me in this circuit and it involves some very serious allegations of family violence. It would have taken a reasonable amount of court time to hear but my Gunnedah circuit is a dedicated hearing circuit so I have more time to hear matters on this circuit than I normally do.

2. The mother prepared the matter for trial and she has filed a trial affidavit which I have read. The father has not filed a trial affidavit and he is represented today by counsel and a solicitor and is seeking an adjournment of the matter.

3. The reason the adjournment is sought is that the father’s mental health is fragile; he attempted suicide in July and his solicitor formed the view that it would be too stressful and difficult for him to prepare a trial affidavit.

4. The father’s counsel did not provide any information about how long the matter would have to be adjourned if I adjourned it. He tendered a psychologists report prepared in December 2014 for an earlier criminal charge or charges that the father faced. It appears from the report that the father has had life-long issues arising out of sexual assaults he sustained while attending a Catholic boarding school.

5. The report was prepared almost five years ago and it is apparent from everything that has happened since then to the mother and children and very recently to the father that he is still suffering from those issues.

6. There is considerable strength in the submission by the mother’s counsel that if I adjourn the matter, who knows when it is ever going to come on for hearing.

7. Everybody involved in this matter, and from reading her affidavit that includes the mother, feels enormous sympathy for the father. He has endured some terrible life experiences and they have had an extremely negative impact on his entire adult life. His mental health is fragile. He has not seen the three children of this relationship since 2016 apart from seeing Z at the family report interviews late last year and having some interaction with the children at a funeral which turned out to be incredibly destructive for the children.

8. He is also estranged from his two older children. He has not had a relationship with them for a lengthy period of time if indeed he ever had one. He has five children he doesn’t see and repeatedly in the material there is reference to the fact that one of the issues which plays on his mind and cause him to feel incredible grief and perhaps leads him to be in a very bad place and even attempting suicide is that he misses his children.

9. I have enormous sympathy for the father but this case is not about an adult. I am not hearing a compensation claim against the Catholic Church. I am not hearing a criminal matter. I am hearing an application for orders in relation to three children and the children and the mother are also victims. They are victims of repeated severe family violence perpetrated by the father. They are entitled to have this matter come to an end.

10. This matter is not about adults, it is about the children. There is nothing to suggest that anything is going to be gained for the children in adjourning the hearing. That would mean that they had unresolved proceedings hanging over their heads indefinitely.

11. If there was any possibility that if I put the matter off for a few months the father might be in a better place and there might be some outcome which meant that he would be able to spend time with his children it might be worth putting the matter off. But it needs to be remembered that this is a matter where there has been the most severe family violence. There has been abuse of the children in terms of the father trying to grab Y at the funeral and some abuse of X that the mother outlined in her affidavit.

12. The children are victims here. They need this to be finished. If some miracle happens and the father finds himself in a better place in his life he can bring another application but I cannot allow myself to be swamped by sympathy for the father and forget the other people in this matter, the mother being one but most importantly the children being the others, and put this matter off indefinitely.

13. The application for an adjournment is dismissed.

The parenting dispute

1. This parenting dispute concerns X, Y and Z and I call the middle child “Y” advisedly. Y was christened Y but he has made it very clear in recent years that he does not want to be called Y. He associates that with his father naming him after a footballer. When his mother asked him to choose a name he chose Y. Whether he will change his mind about that in the future I do not know but that is currently what he wants to be known as and I am going to call him Y in these reasons.

2. X is 13, Y 9 and Z 6. They all fairly recently had their birthdays.

3. The orders sought by the mother are that the children live with her; that she have sole parental responsibility for them; and that the father spend no time with and have no communication with the children. That is an extreme kind of order for the Court to make but given the focus now on family violence it is a kind of order the Court increasingly finds itself in a position of having to make.

Background

1. The mother is 39 and the father 50. They commenced a relationship in … 2005 and subsequently married. They had a couple of separations prior to their final separation and finally separated on 26 June 2016.

2. The father has a sad background. He was sexually abused at the Catholic boarding school he attended and he has had lifelong problems with his behaviour with his mental health.

3. His criminal record says a lot about that. His first conviction was in … 1988 and since then he has had convictions for break, enter and steal; malicious damage; unlawful entry; offensive language; assault; possessing housebreaking implements; committing a felony; supplying a prohibited drug; possessing a prohibited drug; possessing equipment for administering a prohibited drug; cultivating a prohibited drug; possessing an unauthorised firearm and ammunition; and not keeping a firearm safely. There was also an assault charge in 2004 which was dismissed.

4. The mother and father commenced a relationship in 2005 against that background and another piece of background is that the father already had two children from whom he had been estranged for much of their lives.

5. It is the mother’s case, and there is not much reason to doubt it because the father has convictions, that the father became physically violent with her quite soon after the relationship commenced. Police were called on more than one occasion leading to the father being charged and convicted but on more than one occasion as well the parties reconciled.

6. The father was convicted of common assault in 2010 after an incident in 2009 which involved a serious strangulation attempt and a punch in the face.

7. The mother alleged that there was further offensive, aggressive behaviour toward her and she referred to an occasion in 2010 when the father made threats to kill the maternal grandmother. She also said that there was an occasion when she woke up in the morning and found that the air had been let out of her tyres after an argument the night before.

8. In June 2014 the father seriously assaulted the mother’s brother. That happened in front of the children and they were screaming. The father was charged over that and convicted again. 

9. The parties finally separated in June 2016. The father re-partnered with a lady called Ms B but subsequently he assaulted Ms B and Ms B obtained an Apprehended Domestic Violence Order against him which is current until 2020.

10. In October 2016 the father was charged with stalk intimidate arising out of an incident at Z’s preschool.

11. There was also the incident at the funeral in October 2017. I referred to that during the reasons I gave this morning for refusing the adjournment application. The outcome of being exposed to that was catastrophic for X.

12. In conversation with the family report writer the mother said that she remained in the relationship because she did not have a father in her life and did not want to see her children deprived of having a father. It is not the first time that has been said to me in family violence cases and it will not be the last.

13. The result has been extremely damaging for the children. They have been exposed to some quite horrific family violence. The older two children now want nothing to do with the father and even Z, who agreed to see him at the family report interviews, said after spending a little bit of time with him that he did not want to see him again.

14. Since leaving the relationship the mother has been doing her utmost to give the children as good a life as possible. They are enrolled in school. They are being supported by the mother and members of her extended family. The mother has relocated to Town A with the children where she feels safe and although it took a little while for X to feel safe and settled at school, she appears to feel safe at the moment.

15. The mother said that Y was also feeling much more comfortable. He has been allowed to do things like learning rap or hip hop or something like that and learning the guitar; things that he had always wanted to do. He has branched out and he is doing that. Z, being the youngest and probably exposed to the least, is traveling very well.

16. The children told the family report writer they were very happy to live with the mother and that she was taking good care of them and it is entirely appropriate that an order be made that the children continue to live with the mother.

17. Given the horrific family violence that has occurred and the fact that the father is in an extremely poor place with his mental health at the moment the only order I can make about parental responsibility is an order that the mother have sole parental responsibility.

18. The final thing I have to consider is whether any orders should be made about the father spending time with the children.

19. In the family report and in the 2014 psychiatric report that was tendered this morning there is reference to the father being very distressed over the fact that he was not able to see his children.

20. I accept that he may be distressed over that but I cannot make an order that will put the children at risk of harm just in the hope that it might result in some improvement in the father’s mental health and in any event the chances of it resulting in any improvement in his mental health are quite remote.

21. The father has severe mental health issues. They have been ongoing for quite a few years. The 2014 report refers to them. That report is now almost five years old and earlier this year the father had some acute episodes of mental ill health and unfortunately has been threatening to commit suicide.

22. I am very sad for the father but there is nothing to suggest that his mental health is on the improve. Offering him some hope of time with the children would not be an appropriate thing to do if it would cause psychological and potentially physical harm to the children and I am satisfied that would be the likely outcome of an order for the father to spend time with and communicate with the children.

23. The father has behaved extremely violently to other adults and to women on numerous occasions in his life. He has committed the most severe acts of family violence which could have resulted, for example on the strangulation occasion, in the mother being killed. He has had no compunction about behaving in that way (assaulting the mother, punching the children’s uncle or committing other acts of family violence) in the children’s presence. That has not deterred him for a single moment.

24. Children caught in that sort of conflict can sometimes end up being injured. Sometimes they are inadvertently injured because for example people swing around and hit them accidentally or because they leap in and try and interfere. These children would be at unacceptable and indeed significant risk of harm if they were to spend unsupervised time with the father.

25. Given what the children have been through they would also be at unacceptable risk of psychological harm if they spent supervised time with the father. Y and X do not want to have anything to do with the father and you can hardly blame them given what they have experienced and what happened at the funeral. It would be utterly unacceptable to force them to spend time with their father even if a supervised setting could keep them physically safe.

26. The same applies in relation to Z. He has not been subjected to quite the same exposure to the father but he has been subjected to some of it and it would be unacceptable to suggest that he should be picked out of his three siblings and sent off to spend supervised time with the father simply because he is not at present expressing strong opposition to this.

27. The children are a group. They need to be treated in the same way and I am satisfied that the children would be at unacceptable risk of physical or psychological harm if they spent any time with the father.

28. I am going to make orders basically in accordance with orders 1, 2, 3 & 4 of the orders sought in the mother’s case outline document.

29. I will settle those reasons so that they are on the file. Everyone feels sympathy for the father given what he has gone through but it is unreasonable of the father or legal representatives acting for him to take the position that because the father has been through this terrible experience the risk he poses to the children and other adults has to be overlooked and he has to be given an enormous amount of leeway at the expense of other people.  

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date:         29 October 2019