MCCARTHY & ARCHER

[2019] FCCA 513

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCARTHY & ARCHER [2019] FCCA 513

Catchwords:
FAMILY LAW – Parenting – undefended – consideration of s.61DA of the Family Law Act 1975 (Cth) – mental health of father – sole parental responsibility – children live with Respondent mother.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 62G

Applicant: MR MCCARTHY

Respondent: MS ARCHER

File Number: AYC 280 of 2017

Judgment of: Judge Hartnett

Hearing date: 21 February 2019

Delivered at: Melbourne

Delivered on: 21 February 2019

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr Wilkinson

Solicitors for the Respondent: Rodney Kennedy Solicitors Pty Ltd

ORDERS

1. The application of the father filed on 26 July 2017 be dismissed for want of prosecution.

2. All orders with regards to [X] born … 2011 and [Y] born … 2015 (“the children”) be discharged.

3. The mother have sole parental responsibility for the children.

4. The children live with the mother.

5. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 280 of 2017

MR MCCARTHY

Applicant

And

MS ARCHER

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. These proceedings commenced on 26 July 2017 when the father filed an initiating application for parenting orders in respect of the parties’ two children, [X] born … 2011, and [Y] born … 2015.  [X] is now aged seven and a half years approximately and [Y] aged three and three-quarter years approximately (‘the children’). 

2. By his application the father sought that the children live with him and his partner, Ms A, together with their daughter, [Z], who was born on …. 2017 and is now almost two years of age.

3. The father sought further that the mother have fortnightly time spent with the children and that the maternal grandmother not be present at any changeover where the children would pass from the care of one parent into the care of the other. He sought an order in terms that could not be made by the Court and which was in fact a statement from him. It was:-

   “Any form of abuse or violence towards applicant or applicants family will not be tolerated and police or other agencies will be reported on the spot, with [X]/[Y] taken away from the scene immediatly.[sic]”

4. Responding to the initiating application, the mother, in her response filed 30 August 2017, sought that she have sole parental responsibility of the children; that they reside with her; and that they spend time with their father as agreed between the parties, and initially by way of supervision at a recognised contact centre. 

5. Interim orders were made in the proceedings on 17 October 2017.  Those orders provided that the children live with their mother and that any time spent between the children and their father be supervised, at either the Town B contact centre or the Town C contact centre, for fortnightly visits to commence dependent on the availability of the respective centres. The orders provided for Skype or FaceTime between the father and children on no less than two occasions each week, and for the father to spend time with the children on Boxing Day 2017 to be supervised by the paternal grandmother in Town B from 10.30am till 4.30pm, or otherwise by agreement in writing. Additionally, order number 5 of the orders made 17 October 2017 provided as follows:-

   “Both the Applicant and the Respondent to undertake psychiatric assessment, in relation to mental health, prior to 15 January 2018.”

6. The matter next returned to Court on 19 February 2018. The father had not complied with order 5 of the orders made on 17 October 2017. Order 3 of the orders made 19 February 2018 addressed that non-compliance issue. It was as follows:-

   “The father is to comply with order 5 of the orders made 17 October 2017 and further the father is to obtain such psychiatric assessment from Dr D.  Such psychiatric assessment be as to the father's mental health functioning and his ability to provide safe and competent parenting for his children.”

7. On 19 June 2018 the Court ordered (by consent) that previous parenting orders relating to the children be discharged and that the children live with the mother and spend time and communicate with their father as agreed in writing between the parties, and failing other agreement or variation as set out in order 3 which was as follows:-

   “The children spend time with and communicate with the Father as agreed in writing between the parties and, failing other agreement or variation, as follows:

   (a) from the date of these orders until 28 July 2018;

   (i) from the commencement of [X]’s sports commitment on Saturday morning for a period of 3 hours;

   (ii) such time will take place at the sports venue and in sight of the Mother; and

   (iii) in the event of inclement weather and/or cancellation of the sports commitment, then the 3 hours shall take place in sight of the Mother at a venue agreed by the parties.

   (b) From 12 August 2018;

   (i) each alternate Sunday from 10.00am to 4.00pm; and

   (ii) time will commence with the Father collecting the children from the home of the Mother and terminate with the Father returning the children to the home of the Mother;

   (c) By Skype each Tuesday and Thursday, the call to be initiated by the Father between 5.30pm and 6.00pm commencing, Thursday 21 June 2018.”

8. Other orders made on 19 June 2018, relevantly, included the following:-

   “6. The Father is restrained from causing a child or the children to travel any vehicle of which he is the driver.

   7. The parties are restrained from causing a child or the children to be driven in a vehicle whose driver does not hold a current valid New South Wales driving licence and in which they are not restrained as required by New South Wales law.

   8. The Father;

   (a) by 15 July 2018, shall arrange an appointment to be assessed by a registered clinical psychologist, presenting that Dr E may be available to provide such assessment;

   (b) having selected a psychologist as per order 8(a) above, provide the name of the psychologist to the Mother’s solicitor;

   (c) prior to 12 August 2018, will attend a registered clinical psychologist for an assessment in relation to his mental health;

   (d) if he should be unable to secure an appointment for assessment prior to 12 August 2018, provide written evidence to the Mother’s solicitor of the appointment date; and

   (e) having obtained the psychological assessment, shall file a copy of the assessment within 5 days at the Albury Registry of the Family Court and within 5 days provide a copy of the assessment to the Mother’s solicitor.”

9. On 29 November 2018 further (consent) interim orders were entered into between the parties, providing for a variation of the orders made on 19 June 2018, with that variation providing that the children (from 2 December 2018), would commence to spend each alternate Sunday from 10.00am to 4.00pm with their father and on 24 December 2018 from 8.30am to 5.30pm. The father was to collect the children from the mother's residence and return the children to the mother's residence.  Restrictions in respect of the father driving a vehicle, as provided for in the earlier orders of 19 June 2018, remained operative. Those orders were consented to by the mother on the basis that the father had finally obtained a psychological assessment, albeit not from Dr D as originally provided for but from Dr E as subsequently agreed between the parties. That psychological assessment is not in evidence in the proceedings. It was however provided to the wife and she, being reassured by the provision of such document and its contents, consented to the orders made. 

Final hearing

1. The matter proceeded to final hearing on 20 February 2019. The father appeared as a litigant in person. At the commencement of the hearing he sought an adjournment until such time as “his mental health had improved.” He indicated that he had been unable to obtain legal representation, and that he and his partner had decided that he should obtain legal representation for the hearing. Further, that his mental health functioning should stabilise prior to the final hearing commencing.  That application for an adjournment was opposed by the mother. The Court refused to adjourn the hearing.   

2. These proceedings have been on foot for a time period approaching two years.  The father failed to comply with two orders of the Court requiring him to obtain a psychiatric assessment, obtaining thereafter a psychological assessment just prior to the hearing on 29 November 2018. That assessment, although not in evidence, assessed, (as a matter not of disputed fact) the father’s mental health as being sufficient to enable him to have unsupervised time with the children. That stood in stark contrast to the father's own admission, in seeking an adjournment, that his mental health was problematic, and that he was currently suffering from anxiety and other considerable mental health difficulties.

3. The matter proceeded on the afternoon of 20 February 2019, the father having been given an opportunity to be ready to proceed. The father failed to answer the call when the matter was called, and failed to prosecute his application that the children live with him and spend time with their mother. In those circumstances his application was dismissed.

4. The mother’s application proceeded on an undefended basis on 21 February 2019.

5. The mother relied upon her response filed 30 August 2017, save that the mother did not seek any orders with respect to the children spending time with their father given the concerning admission by the father that he was suffering from some significant mental health difficulties.

6. The mother relied upon affidavits of evidence affirmed by her on 29 May 2018 and 14 February 2019. Also, before the Court in evidence was a s.62G of the Family Law Act 1975 (Cth) (‘the Act’) family report prepared by Regulation 7 family consultant Mr F, dated 12 June 2018.

7. The Court notes at the outset, and in the more recent history of the matter that:-

   a)the father spent time with the children on 2 December 2018;

   b)on 16 December 2018, the father contacted the mother at 8.10am to inform her that he could not attend for time spent with the children as his partner and newborn son were to be released that morning from hospital. He indicated that he would Skype later in the day to introduce the children to their new brother. He did not make the promised Skype call;

   c)on Christmas Eve 2018, the father arrived at the mother’s home to collect the children. He parked the car in the street rather than drive into the driveway. He walked to the mother’s front door. He was alone. He collected the children and hurriedly moved them toward his car. The mother followed, noting that there was nobody in the car and that the father was alone. The mother spoke with the father about the then existing orders which precluded him from driving the children in a motor vehicle;

   d)the mother requested of the father to show her his driving licence before he took the children.  She noted he held a “P” plate licence. No “P” plates appeared visible on his vehicle. The mother then noticed an “I” on the father’s licence, indicating that he was required to drive a car fitted with an alcohol interlock. The father, when questioned by the mother, indicated that he did not need an alcohol interlock and that he was departing with the children and would get some “P” plates at the shops. The mother said she would call the police and the father immediately got into his car and left, leaving the children behind;

   e)the mother waited with the children at home for some time, in the hope that the father might be able to attend to collect the children in the presence of another adult who would be driving the vehicle. That did not occur, and the children did not see their father;

   f)the children and mother spent Boxing Day with the paternal grandparents and extended family, but the father did not attend that celebration; and

   g)the following Sunday, the mother had the children ready and waiting at 10.00am for collection by the father. The father failed to collect the children in accordance with the orders of the Court. 

8. The orders of 29 November 2018 had also made provision for the father to engage in Skype communication between himself and the children.  The father has not, in the intervening period, Skyped the children on any occasion. The father has not seen the children and not availed himself of any time spent with orders between 2 December 2018 and this day. 

History

1. The parties commenced their relationship in … 2009 and commenced cohabitation at the home of the maternal grandmother.  After a few weeks, they moved to take up residence in the home of the paternal grandfather, which was also in Town C. In … 2010, the mother discovered that she was pregnant. 

2. In about … 2011, the mother discovered the rent on the home that they were occupying had not been paid for some months and that the father had been sent a number of eviction notices which he had failed to notify the mother about. As a result, the parties moved to new rental accommodation in Town G. At around that time, the father ceased his employment. This was not long before the birth of the parties’ elder child, [X], in … 2011. 

3. For the eight months which followed [X]’s birth, the father was unemployed. In … 2012, the mother discovered the father had been stealing from the maternal grandmother. The parties separated.  Thereafter, the mother encouraged the father to spend time with [X], and the father did so. 

4. In January 2012, the father asked the mother to reconcile with him.  The father told the mother he had been evicted from his then rental accommodation. The mother indicated that she would not reconcile with the father at that time. She requested him to seek out professional assistance to deal with his then presenting issues.

5. The father, however, continued to spend time, supported by the mother, with the child, [X], he coming to her home and staying overnight on these occasions, before returning to Town C where he was living. 

6. In March 2014, the parties reconciled. The father got a job working at a Employer in Town B and the mother commenced working with Employer.  In … 2014, the mother discovered she was pregnant with [Y].  On that same day, the father informed the mother that he had been sacked from his job. Thereafter, he could not find work for a time before gaining employment as a labourer. 

7. [Y] was born on … 2015 at Town G Hospital. Shortly after his birth, his maternal grandmother, who was assisting the mother, returned to her home in Town H. The mother felt unsupported by the father and there were many issues in the relationship such that it could no longer continue. The father assisted on occasion but not on a regular basis.  The mother indicated to the father that she wished to move to Town H where she would have reliable assistance and family support. The father eventually agreed to this proposal and the relocation of the mother and children to Town H.  He travelled to Town H to visit them and spent Christmas Eve 2015 with them.

8. In March 2016, the father told the mother he was seeking help for the psychological and psychiatric problems that he was experiencing.  He travelled to Town H regularly to spend time with the children. 

9. By July 2016, the father’s visits had become less frequent and they soon ceased all together. The father had formed a new relationship with Ms A. 

10. In May 2017, a parenting plan was entered into between the parties.  That parenting plan provided for the children’s continued residence with their mother and for time spent with their father.  That time included overnight time. Various problems ensued, as set out by the mother in her unchallenged affidavit evidence, paragraphs 36 to 40 of her affidavit affirmed 29 May 2018.  The Court accepts that evidence.

11. Court proceedings were next initiated, and the father’s time with the children was ordered to be supervised at a contact centre. Between October 2017 and February 2018, the visits at the contact centre took place. 

12. However, ongoing financial difficulties of both parties, conflict between the parties, and the father’s drink driving resulting in his licence disqualification resulted in the suspension of time. That suspension was initiated by the contact centre. 

13. The father, thereafter, became less and less reliable in his Skype communication with the children. He frequently denigrated the mother to the child, [X]. He blamed the mother for his lack of face to face time with the children.

Consideration

1. The Court is required to consider the best interests of the children. On the evidence before it, it is clear that the children’s best interests are served by their continued residence with their mother who has been their primary carer since birth and is their primary attachment figure. 

2. Over time, the mother has become increasingly concerned about the poor mental health of the father, and his presenting anxiety. Whilst she is a mother who, on the evidence, clearly promotes the relationship between the children and their father, she is currently concerned about the risk the father presents to the safety of the children, both physically and emotionally. Whilst she accepts that the children wish to see their father; that they love him; and want to spend time with him, her evidence is that she needs to be assured that the children will be safe in the father’s care.  She remains concerned about his psychological health; his apparent inability to tell the truth as alleged by her and unchallenged by the father; and his drink driving offending. 

3. The exposure of the children to risk in the father’s care and the conflict between the parties is such that, on the evidence, the presumption of equal shared parental responsibility as set out in s.61DA of the Act is rebutted. The mother has been the consistent decision maker in the children’s lives, and needs to be able to make decisions for the children without those decisions being delayed by the father’s behaviours.

4. It is not possible to make any provision for time spent between the father and the children in the current circumstances, those being the indeterminate nature of the state of the father’s mental health and his obvious anxiety.

5. The evidence as contained in the family report dated 12 June 2018 also supports the making of the orders as sought by the mother.  In paragraph 99 of that report, Mr F said as follows:-

   “It would support the children’s ongoing emotional development, sense of identity, connection with their father and enhance their relationship, for there are to be regular communications and regular supervised time with their father.  As noted above, [X] appears to have a particular yearning for a close relationship with his father, which he sees as sadly lacking.  However, it would not be a child focused consideration for this situation to continue lingering and sporadic visits or communications to occur every now and again whenever Mr McCarthy can make the time.  Such would likely result in further emotional damage to the children, heighten a sense of rejection and leave them with a sense of ongoing frustration.  Hence, it is assessed in the best interests of the children that if Mr McCarthy does not remain committed to spend time and maintain a relationship with the children, that the window of opportunity should eventually close.”

6. It is clear on the evidence that, at the present time, the father is not committed to spending time and maintaining his relationship with the children, and has not been so committed for some months. Nor was he committed when he failed to comply with earlier Court orders and obtain a psychiatric assessment. That failure was commented upon in paragraph 97 of the Family Report wherein Mr F observed, relevantly:-

   “…It is noted in the initial orders of October 2017 that both parties were to attend for assessment, then in the second orders of February 2018 Mr McCarthy was again ordered to attend for assessment by Dr D and in May 2017 when the parties attended upon this Family Consultant, Mr McCarthy still had not attended, now some seven months waiting. He provided this Family Consultant with an excuse that Dr D was not prepared to see him due to a conflict of interest, but in this Family Consultant’s experience, a forensic psychological/psychiatric evaluation conducted upon parties in virtually all instances is undertaken by the same practitioner.  Ms Archer showed this family consultant a text message from Mr McCarthy where he told her that he had attended upon Dr D and the report indicated that there were no issues regarding his mental health and he was deserving to have the children. This seemingly well-crafted, elaborate and manipulative story is extraordinarily concerning and in this Family Consultant’s opinion, appears rather cunning and raises further concern in respect of the functioning of Mr McCarthy’s mental health and/or his personality.  In turn, until this assessment is completed it cannot be determined whether he poses any possible risk to the children.  In this Family Consultant’s opinion, it appears Mr McCarthy is purposefully avoiding Dr D and opposes any mental health evaluation, but this Family Consultant is of the firm view that this assessment is a vital piece of information to further inform this Honourable Court when considering the future best interests and the safety of the children.” 

1. Mr F otherwise observed that the mother appeared to:-

   “…have a strong desire for the children’s father to be an active part of their lives, she has not re-partnered and the expressed views of [X] suggest he has a particular longing for a relationship with his father, which Ms Archer is fully aware of.”

2. Mr F observed the mother to present as child-focused and his observations of the interactions between her and the children were very positive. It was suggestive of the notion that a close, warm and loving relationship existed between the children and their mother.  Likewise, the observation of the interactions between the father and the children were indicative of a very familiar, comfortable and loving relationship between them, although Mr F noted that [X] expressed to him a strong sense of feeling rejection by his father. He saw his father as unreliable.  He saw his father as someone who was not truthful and there were often times he waited for him to telephone but the father did not.  [X] continually referred to his father with a sense of feeling sadness. By way of contrast, [X] saw the relationship with his mother as supportive and warm, and noted the significant involvement and regular time he spent with his maternal grandparents, which he appeared to value.  There was no indication he experienced any difficulties or struggles in his relationship with his mother. 

3. The evidence establishes that the children’s best interests are served by remaining in the care of their mother and in the context of the structure that will follow the making of orders as sought by her. 

4. The Court accedes to the application of the mother and will make orders accordingly.  

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 5 March 2019