Modra and Modra

[2007] FamCA 1590

FAMILY COURT OF AUSTRALIA

MODRA & MODRA [2007] FamCA 1590

FAMILY LAW – CHILDREN – Undefended hearing – With whom a child spends time – Whether children should spend time with husband – Allegations of sexual abuse – Husband had no contact with children since 2003 – Husband diagnosed as suffering from delusional disorder with grandiose and persecutory themes – No evidence of improvement in psychiatric or mental health – Previous finding that husband not capable of conducting or giving instructions to conduct his case – Case guardian appointed – Case guardian did not proceed with husband’s response – Need to protect children from harm – Presumption in s 61DA of Family Law Act 1975 does not apply – In best interests of children to have no contact with husband – Order: children live with the wife – Wife have sole parental responsibility – Injunctions granted restraining husband, including restraining the husband from spending time with children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Modra

RESPONDENT: Mr Modra

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADF 359 of 2003

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S COUNSEL: Mr J Bowler

INDEPENDENT CHILDREN’S SOLICITOR Legal Services Commission of South Australia

Orders

1. That the children C born … April 1998 and T born … July 2001 do live with the wife.

2. That the wife do have sole parental responsibility for the said children.

3. That the husband be restrained and an injunction be granted restraining him from:

   (a)Spending time with the children;

   (b)Abusing, threatening or assaulting the wife;

   (c)Attending at any residence where the wife and the said children may from time to time reside, work or frequent;

   (d)Attending at or remaining in the vicinity of any school or other facility where the said children may from time to time attend.

4. That the order for the appointment of the Independent Children’s Lawyer be discharged.

5. That all applications be dismissed and removed from the active pending cases list.

6. That pursuant to Section 62B and Section 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 359 of 2003

MS MODRA  

Applicant

And

MR MODRA  

Respondent

EX TEMPORE REASONS

Introduction

1. This matter is listed before me today as an undefended hearing and, as such, is proceeding on the wife’s Further Amended Application for Final Orders filed on 27 July 2007.

2. The Response filed by the husband was struck out on 8 July 2005, in fact, as was his Amended Response, which was filed on 13 July 2004.  I made a further order on 6 July 2007, unnecessarily so it seems in light of that earlier order, dismissing the husband's Amended Response filed on 13 July 2007.

3. The orders that the wife seeks are set out in her Further Amended Application, but in summary she seeks that the children C born in April 1998 and T born in July 2001 live with her, that she have sole parental responsibility for them, and that the husband be restrained and an injunction be granted restraining him from spending time with the children, abusing, threatening or assaulting the wife, attending at any residence where the wife and the said children may from time to time reside, work or frequent, and from attending at or remaining in the vicinity of any school or other facility where the said children may from time to time attend.

Factual background

1. The husband was born in August 1961 and is now aged 46 years.

2. The wife was born in August 1965 and is now aged 42 years.

3. The parties commenced cohabitation in April 1998.

4. The parties’ daughter C was born in April 1998 and is now aged 9 years.

5. The parties married in April 2000.

6. The parties’ son T was born in July 2001 and is now aged 6 years.

7. The parties separated on 12 April 2002.  The children continued to reside with the wife, and the husband had contact with C on Monday and Tuesday of each week from approximately 2.00pm to 7.30pm

8. In April 2002 the wife consulted Dr A, psychiatrist, regarding C’s behaviour upon her return from contact with the husband.

9. On 16 December 2002 the husband threatened to kill the wife and assaulted her in the presence of their daughter.

10. Between 28 January 2003 and the 2 February 2003, the child C, upon returning from contact with the husband, complained of a “sore fanny” and “sore breasts”.

11. On 2 February 2003 the child C told her mother “Daddy sticks a brush up me and I don’t like it”.  When asked where, the child responded, “fanny and bum”.  The wife contacted Child Youth and Family Services and Child Protection Services commenced an investigation into the allegations.

12. On 18 February 2003 the wife filed a Form 3 Application seeking final orders, inter alia, that the children live with her, the husband have contact with the children and for injunctions restraining the husband.

13. On 20 February 2003 Judicial Registrar Forbes made orders that the children reside with the wife and that she have responsibility for their day to day care, welfare and development.  The husband was restrained from abusing, threatening or assaulting the wife, attending any residence where the children and wife may from time to time reside, work or frequent and from attending at or remaining in the vicinity of any child care centre, kindergarten or school where the children may from time to time attend.

14. On 24 April 2003 the husband filed a Form 3A Response seeking orders that he have contact with the children.    

15. On 8 May 2003 Child Youth and Family Services advised the wife by letter that sexual abuse of the child C had been confirmed.

16. On 23 May 2003 Judicial Registrar Forbes ordered that there be no contact between the husband and children until further order.

17. In August 2003, Ms D, Psychologist, undertook a Family Assessment.

18. On 15 September 2003 Ms D produced her Family Assessment Report in which she recommended that the husband have no contact with the children pending the trial.  Ms D also recommended the wife agree to not denigrate the husband in the presence of the children and that the husband not send any further cards to the children containing reference to legal matters or the conflict between himself and the wife.

19. On 23 June 2004 the wife filed an Amended Application for Final Orders seeking orders that the children reside with her, that she have sole responsibility for the children’s day to day care, welfare and development and the husband be restrained from abusing, threatening or assaulting the wife, attending any residence where the wife or children may reside, work or frequent and from attending any child care centre, kindergarten or school the children attend.

20. On 13 July 2004 the husband filed an amended Form 1A Response in which he sought contact with the children each alternate weekend and during each alternate week of each school holiday period and on special occasions.

21. On 8 March 2005 orders were made by Deputy Registrar Paxton directing the preparation of a Family Report.

22. On 5 May 2005 Ms B, Psychologist, produced her Family Report.  The husband did not attend for the purposes of the preparation of this report.  In the absence of the husband’s attendance, Ms B reiterated the recommendations of Ms D made in August 2003 that there be no contact between the husband and the children, and adding that that should be the case until “it can be ascertained by the court that the children will not come to any physical or psychological harm in [the husband]’s care”.

23. The husband failed to comply with orders for the filing of his affidavit of evidence in chief, and on 8 July 2005, at the pre-trial conference, Registrar Dore made orders that unless a judge ordered otherwise:

    a)The husband’s Response Form 3A filed 24 April 2003 and Amended Response Form 1A filed 13 July 2004 be and the same are hereby struck out.

    b)That the husband is excluded from filing or adducing any further evidence in chief

    c)The matter be set for hearing as an undefended matter on 28 October 2005.

24. On 28 October 2005 the husband appeared.  I became concerned as to the state of his mental health, and I made orders that he attend a psychiatrist, and a report be prepared as to the state at that time of the husband’s mental health, in particular addressing his capacity to understand the nature and consequences of these proceedings.

25. On 21 March 2006 the husband attended upon Dr N, psychiatrist.

26. Dr N provided his report regarding the husband’s mental health on 18 April 2006.  In his conclusions and recommendations, Dr N stated:

    “[The husband] is suffering from a Delusional Disorder which unfortunately is severely affecting the way in which he is attempting to conduct legal proceedings on his own behalf.  In essence, he does not accept the authority of the Court and believes that some other (“private”) process is required to finalise the matters that the Court is currently considering, but this can only be achieved after the Court closes the case.  This is clearly inconsistent with the Court’s actual processes.  I believe that this makes [the husband] unfit to represent himself given that he does not understand the nature and consequences of the proceedings.

    …

    I believe that the best the Court can do in this situation, if indeed it has power to do so, would be to appoint a guardian for [the husband] who might then insist on legal representation for his.  I have doubts that he would cooperate well with this process but I can see no other way in which there is any chance of him being able to participate in a fair and rational way.”

27. On 13 September 2006 I ordered that the husband provide a Form 13 Financial Statement to determine whether he could contribute to the costs of a guardian being appointed.  It was proposed that the Public Advocate be appointed but he required funds to instruct lawyers.

28. On 20 September 2006 the husband provided a Form 13 Financial Statement, but it was of little assistance to the Court.

29. On 28 November 2006 I heard evidence from Dr N.  I delivered ex tempore reasons in relation to the need to appoint a case guardian for the husband and adjourned the matter for further consideration to 5 December 2006.

30. On 5 and 20 December 2006 and then 18 January 2007 and 21 February 2007 the matter was adjourned awaiting the making of and subsequent outcome of the husband’s application for legal aid.

31. The husband subsequently received legal aid and Ms Litchfield was appointed to represent the husband.

32. On 1 May 2007 I ordered that Mr H, Public Advocate, be appointed as Case Guardian of the husband.

33. On 6 July 2007 Ms Litchfield informed the Court it was her instructions that the husband would not be proceeding with his Response. I noted on this occasion that Ms Litchfield intended to file a Notice of Ceasing to Act, but that she would not do so until after the wife’s amended application and supporting affidavit had been filed and served.  I thus made orders that the husband’s Response filed 13 July 2004 be dismissed and the matter be listed as an undefended hearing, which I have heard today.

34. The wife filed her Further Amended Application for Final Orders on 27 July 2007.

35. Ms Litchfield filed her Notice of Ceasing to Act on 23 August 2007.

The issues in dispute

1. The primary issue here is whether the children should spend any time with their father. 

The principles to be applied

1. In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975.  The objects of those provisions of the Act relating to children are:

   (a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   (b)to protect the children from physical or psychological harm; and

   (c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))

2. The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:

   (a)children have the right to know and be cared for by both parents; and

   (b)children have the 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; and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture. (Section 60B(2))

3. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)

4. Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:

   Primary considerations

   (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. (Section 60CC(2))

   Additional considerations

   (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;

   (b)  the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (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

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (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;

   (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;

   (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;

   (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;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (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;

   (m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))

5. The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))

6. Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)

7. Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

8. Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))

9. If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))

10. If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

1. The wife relies on her affidavit filed on 27 July 2007 and the Family Report prepared by Ms B, Family Consultant filed on 6 May 2005.

2. The Independent Children’s Lawyer relies on his affidavit filed on 20 May 2003 and the affidavit of Ms R filed on 17 September 2003.  These affidavits annex relevant reports, the contents of which are also relied upon by the Independent Children’s Lawyer.  The Independent Children’s Lawyer also relies on the Family Report of Ms B and the affidavit of Mr K filed on 1 May 2006, which annexes the report of Dr N.

Section 60CC of the Family Law Act

1. The paramount consideration as to what orders I make is what is in the best interests of these two children. In that regard the Independent Children’s Lawyer properly refers me to Section 60CC of the Act and in particular sub-sections (2) and (3) which set out the considerations, both primary and additional, that I must address in determining what is in the best interests of these two children

2. Perhaps some preliminary remarks, though.  The wife has been the primary carer of these two children since their births and has continued to care for them following the parties' separation on 12 April 2002.  The husband had some contact with the children prior to 2 February 2003.  He had fleeting contact with T and he had daytime contact to C on one occasion each week.  The husband, though, has not had any contact with either of the two children since 2 February 2003.  That was as a result of allegations that the husband had sexually abused the child C.

1. To repeat, those allegations were the subject of investigations by Child and Youth Family Services and, ultimately, they advised the wife that sexual abuse in respect of C had been confirmed.  Separate to that there was the report of Ms D, where she recommended that the children have no contact with the husband.  As I say, that has in fact been the case since 2 February 2003.

2. Since Ms D's report there has been one further report and that is the report of Ms B of 6 May 2005.  The husband declined to be interviewed by Ms B for the purposes of that report but he provided significant documentation to Ms B.  During the course of Ms B's interviews with C, C expressed a wish to Ms B that she be able to stay with her mother and not see her father.  Ms B noted in her report, and I quote:

   “With reference to [the husband]’s mental health, the 10 pages of documentation sent to the writer by way of explanation for his non attendance (a copy of which has been sent to the Child Representative) was not amenable to interpretation and seems to be similar in nature to the voluminous correspondence previously sent to the court by [the husband], the bulk of which has reportedly been returned to him, with copies retained by the court in a separate correspondence file.  The incomprehensible style and nature of these documents would appear to give some credence to [the wife]’s concerns regarding [the husband]'s current mental health.  In view of this, a psychiatric assessment of [the husband] may be an option the court may wish to consider.”

3. Significantly, though, Ms B recommended that there be no contact between the husband and the children until it could be ascertained that the children would not come to any physical or psychological harm in the husband’s care. 

4. I want to dwell on one issue, namely the husband’s mental health.

5. It was intended that I hear the matter on an undefended basis as a result of the orders made by the Registrar on 8 July 2005.  However, to repeat, I became concerned about the state of the husband’s mental health on that day.  My concerns were based on his language, his inability to answer questions and also from my reading of the affidavits on the file and the reports provided by Ms D and Ms B.  I was concerned as to whether the husband was able to understand the nature and consequences of the proceedings.  In response to questions he continually repeated answers which made little sense. 

6. As a result of that I ordered that the husband attend a psychiatrist and that a report be prepared addressing his current mental health, and his capacity to understand the nature and consequences of these proceedings.  Of course, that issue - namely, his mental health – was not only relevant to his representation, but also very much impacted upon the safety and wellbeing of these two young children.

7. The husband saw Dr N who subsequently provided a report.  I then heard evidence from Dr N on 28 November 2006 and I delivered extempore reasons which frankly need to be read in conjunction with the reasons that I am delivering today to appreciate how the matter has progressed to this point.  I am not going to repeat what I said in those reasons, but the long and the short of it is that I determined that the husband was not capable of adequately conducting or giving instructions for the conduct of his case and, as such, required a case guardian to continue these proceedings.

8. Unfortunately the actual appointment of a case guardian was not as easy as it might have seemed.  Ultimately though, on 1 May 2007, I was able to make an order that Mr H, Public Advocate, be appointed as case guardian of the husband in these proceedings.

9. Ms Litchfield became the husband's solicitor and thereby instructed Mr H.  On 6 July 2007 Ms Litchfield indicated that her instructions were that the husband would not be proceeding with his response and Ms Litchfield tendered a letter, which she had received from Mr H, which set out the reasons for that.  That of course then led to the orders which provided for this matter to proceed undefended.

10. I have dwelt on that matter for two reasons, one is, it is necessary background for today, but also to indicate that there has been no evidence presented, and particularly by Ms Litchfield when she was acting for the husband, nor anybody else for that matter to indicate that the husband’s psychiatric and mental health has improved since the diagnosis by Dr N, which was that the husband was suffering from a delusional disorder with grandiose and persecutory themes.  A particular feature of that disorder is that sufferers are invariably completely insightless into the nature of their disorder and will usually not agree to take medication.  Thus I proceed on the basis that there is no improvement to the husband’s condition.

11. If I can just return to the relevant factors arising under Section 60CC of the Family Law Act, I note of course, without repeating, the serious nature of the allegations surrounding the alleged sexual abuse of C by the husband.  That is contained in the reports of Ms S and Mr O of the Child Protection Service, which are annexed to the affidavit of Mr W filed on 20 May 2003.

12. The relevance of that is that one of the primary considerations that I have to have regard to is paragraph 60CC(2)(b), namely:

    “The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

13. In light of the evidence before me there is an obvious need to protect both children from such harm.  Unfortunately, from the point of view of the children having any relationship with their father, the best way to protect them is for there to be no contact, which is, in effect, the order the wife seeks.

14. Of course, there has been no testing of those allegations because of the husband’s failure to participate in the proceedings in any meaningful way.  That said, the allegations are there, and I agree with counsel for the Independent Children’s Lawyer that the court should proceed cautiously in ensuring the children are not exposed to the potential risk of being sexually abused by the father.

15. Obviously that circumstance impacts upon the other primary consideration which I have to have regard to, namely paragraph 60CC(2)(a).  That consideration is:

    “The benefit to the child of having a meaningful relationship with both of the child's parents.”

16. The unfortunate consequence of making the orders that the wife seeks is that there will be no relationship, meaningful or otherwise, between the husband and the children, but in the circumstances of the need to protect the children in the way that I have outlined that is unfortunately a necessary and inevitable consequence.

17. In relation to the additional considerations in Section 60CC(3) there are of course the views expressed by C. C, at each turn, has expressed a clear wish that she does not want to see her father under any circumstances. T has been too young to be able to express any reliable wishes and there of course has not been any recent attempt to ascertain his views.

18. There is then paragraph 60CC(3)(f) which relates to the capacity of each of the children's parents to provide for the needs of the children, including emotional and intellectual needs.  The evidence in relation to the husband’s mental health, and his ability to function or not function, impacts upon his capacity to provide not only for the physical needs of the children but also for the emotional needs of the children.  From the evidence I have before me I am satisfied that the husband’s mental condition prevents him from exercising any capacity to attend properly to the needs of these children.  It is the opposite with the wife though.  The evidence is quite clear that the wife not only has the capacity but has in fact provided for the needs of the children.

19. I do not consider that I need to refer specifically to any of the other additional considerations in Section 60CC(3). It seems to me that there is enough from those that I have highlighted already for me to be satisfied that the orders that the wife seeks promote the best interests of these two children. Because, though, the orders the wife seeks are parenting orders I need to address the issue of parental responsibility and the applicability of the presumption in Section 61DA of the Family Law Act 1975.  However, I do not need to dwell on that too long because I agree with the submission of the Independent Children’s Lawyer that that presumption does not apply here because there are reasonable grounds to believe that a parent, namely the husband, has engaged in abuse of a child, namely, C.

20. Thus, not only does the presumption not apply but, in considering the question of parental responsibility in any event, it is quite apparent from what I have said to date and also referring to the affidavit material and particularly the reports and the like, that it is simply not practicable for the parties in this case to share, equal or otherwise, parental responsibility. 

21. The effect of the orders sought by the wife will be that the husband will have absolutely no contact with the children and he will be restrained from attempting to do so.  Thus there will not be any basis for him to exercise any parental responsibility in relation to the children. That task will fall entirely upon the shoulders of the mother and that is in these children's best interests.  Thus I do not need to trouble myself further with parental responsibility.

22. For all those reasons I am satisfied that the orders sought by the wife are in the best interests of these children. 

23. Finally, I need to address Sections 62B and 65DA(2) of the Family Law Act 1975 in terms of the particulars that the court is obliged to provide to the parties whenever a parenting order is made.  The husband of course is not present.  I note that the relevant particulars have now been provided to the wife's counsel.  In relation to the husband, those particulars will be annexed to the sealed order which is sent out to his last known address, so he will in that way receive these particulars.

I certify that the preceding 76 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

30 August 2007