Moss and Ralph

FAMILY COURT OF AUSTRALIA

MOSS & RALPH

[2016] FamCA 999

FAMILY LAW – CHILDREN – Time and communication – Where the father acknowledges he is not in a position for the children to live with him – Where the father acknowledges the children are doing well in the mother’s household – Where the mother has recently agreed to alternate weekends – Where the parties agreed the children have a loving relationship with the father – Where co-parenting deteriorated into absence – Where the mother does not want to manage the father’s behaviours – Where the father lives in a boarding house – Where the boarding house is inadequate accommodation – Ordered that the father spend alternate weekends with the children on acquisition of suitable accommodation – Ordered that the mother have sole parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:	Ms Moss
RESPONDENT:	Mr Ralph

INDEPENDENT CHILDREN’S LAWYER:

Paul Grant

FILE NUMBER:

(P)NCC

1300

2012

DATE DELIVERED:

24 November 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

11-13 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davies

SOLICITOR FOR THE APPLICANT:

Legal Aid Newcastle

COUNSEL FOR THE RESPONDENT:

Not Applicable

THE RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fraser

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

Orders

That all prior orders made in the Federal Circuit Court and in this Court in relation to B born … 2010 and C born … 2014 (“the children”) are discharged.

Parental Responsibility

That the mother have sole parental responsibility for the children.
That the mother keep the father advised of:
(a)       The current residential address of the children;
(b)       The preschool and schools which either or both of the children attend;
(c)       Any specialist medical advice and treatment for either of the children;
(d)Any change of nominated telephone number for calls from the father to the children; and
(e)Any sport, music, dance or other extra-curricular activity in which the children are involved.

Residence

The children shall live with the mother.

Time and Communication

The children shall spend time and communicate with the father as agreed between the parties and failing agreement as follows:
5.1For a period of three months from the date of these orders, for two hours on one day of each alternate weekend, failing agreement otherwise between 2.00 pm and 4.00 pm on Sunday, with such time to be supervised by a supervisor agreed upon by the parties, or if no supervisor is agreed, supervised by a professional contact centre (fees to be shared equally);
5.2Thereafter, for a period of six months, or until the father obtains independent accommodation [being a property with a minimum of two bedrooms to enable the children to stay overnight], whichever event occurs later;
5.3On each alternate Sunday, unsupervised, between 10.00 am and 4.00 pm on Sunday:
5.3.1On Father’s Day in 2017 from 10.00 am to 4.00 pm;
5.4Thereafter, in the event that the father has obtained for himself accommodation in accordance with Order 5.1:
5.4.1On each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday;
5.5From 6.00 pm Saturday to 4.00 pm Sunday on the weekend of Father’s Day commencing 2018; and
5.6From 2.00 pm Christmas Eve to 2.00 pm Christmas Day in even years commencing 2018 and from 2.00 pm on Christmas Day to 2.00 pm Boxing Day in odd numbered years commencing 2017.
In the event that the children are due to spend time with the father on the weekend on which Mother’s Day falls, time with the father is suspended from 6.00 pm on the Saturday of that weekend.

Changeovers

Changeovers shall take place at a contact centre unless otherwise agreed.

Communication

That the children shall have telephone contact with the father on one day per week failing agreement otherwise on Wednesday at a time between 5.00 pm and 6.00 pm with the call to be initiated by the father and facilitated by the mother on the telephone number nominated by the mother.
That the father communicate with the children by telephone on all occasions of special significance each year, including Christmas Day, each of the children’s birthdays and Easter Sunday, during the hours of 5.00 pm and 6.00 pm, with the father to telephone on the number nominated by the mother.
The mother shall within 28 days of the date of these Orders advise the father in writing (includes text message) of the telephone number she nominates for the purpose of Order 8 and 9.
That the father be permitted to send to the children a letter, card or photograph on all occasions of special significance each year, including Christmas Day, each of the children’s birthdays and Easter Sunday, on the condition that:
(a)The letters and/or cards be sent to an address nominated by the mother; and
(b)The letters and/or cards be opened by the mother and only be provided to the children if the mother considers it appropriate to do so.
The father shall keep the mother advised of his current residential address and nominated telephone number.
In the event that the father advises the mother that he has independent accommodation suitable for the children to stay in (and provides the address) and the mother asks to visit and inspect the accommodation, the father shall not refuse that request without reasonable excuse.

Restraints

Pursuant to s 68B of the Family Law Act, the father is restrained by injunction from:
(a)Entering or attempting to enter the place of residence of the mother being D Street, Suburb E (“the mother’s place of residence”), or any such other place where the mother and the children may reside from time to time;
(b)Coming within 500 metres of the mother’s place of residence; and
(c)Coming within 200 metres of the mother, her partner and the children at any public place.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moss & Ralph has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1300/2012

Ms Moss

Applicant

And

Mr Ralph

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting Orders in respect of two children: a boy aged almost seven; and, a girl of four.
The Applicant is the mother of the children. She is aged 34. Her household consists of herself, the subject children, her partner of three years Mr F (41), his son G aged 17 and G’s girlfriend. Mr F has three teenage children who live with their mother. They spend time in the household on alternate weekends and for half school holidays.
The mother was represented in these proceedings by solicitor and counsel. She had filed her documents in accordance with orders and directions.
The Respondent is the father of the children. He is aged 53. He presently lives in a Northern Suburb of Sydney as a boarder in a four bedroom house. The other occupants are the owner of the house and a new short stay boarder.
The distance between the mother’s household on the Central Coast and the father’s household in Northern Sydney is about 55 kilometres or one hours drive.
The father attended Court for the hearing unrepresented. He had not filed a Trial Affidavit nor any updated Response. He had not taken up the leave to issue subpoenae for witnesses to attend. He had not issued any subpoenae himself. He came completely unprepared, with no copies of his own documents nor those of the mother.
The father has been represented by solicitors in the past. He put himself at a disadvantage in these proceedings by his failure to prepare to any extent, a fact which he came to fully appreciate during the course of the three days.
The father participated by cross examining the mother and her partner. He was briefly cross examined by counsel for the mother and somewhat more extensively by counsel for the Independent Children’s Lawyer. This was done to assist the Court, by providing some basic information about the father’s circumstances.

The Impact of Protracted Litigation

These proceedings began in the Federal Circuit Court in May 2012 with the application of the mother, and remained in that court until transfer to this Court, in October 2015.
During that three and a half year period there were a great many court events which gave rise to five sets of interim Orders made by consent and procedural Orders for six reports of various types; two Family Reports, a psychiatric assessment of each party and two reports by the father’s treating psychologist.
However, there was no judicial determination of any issue in dispute. None of the evidence filed over the years had been tested.
Such protracted litigation has had an adverse impact on both parties and the children. The mother had a two year old and a newborn baby when she made her application. The children have grown up in the shadow of court proceedings. The father became frustrated and despairing which led to poor behaviour on his part, including extensive posting on social media critical of the mother, her partner and the court system but importantly revealing the identity of the parties and the children.
The hearing before me was unsatisfactory in the sense that the mother’s evidence was not relevantly tested and the father did not put proper evidence before the Court. Without the proper assistance of the Independent Children’s Lawyer (“the ICL”) and counsel for the ICL, the matter would likely not have been able to proceed at all

History of Relationship

The parties met in January 2004 when the mother was 21 and the father 41. They began living together in May of that year on the Central Coast of New South Wales. After about four years the parties moved to live in Perth, Western Australia.
In 2008 in Western Australia the father was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) for which he was medicated with dexamphetamine. A psychologist whom the father consulted some years later referred to this as a misdiagnosis and also as a “debacle”. The father’s behaviour on his own admission deteriorated and there is a question mark as to whether he became psychotic. In 2011 he ceased taking the medication and apparently returned to usual function.
During this time, in 2010, the parties’ first child was born.
Early in 2011 the mother returned to the Central Coast with the child. The father remained in Western Australia but the parties maintained a relationship. The mother had returned for the support and assistance of her extended family.
Around this time, the father declared himself bankrupt.
In June 2011 the mother and child flew back to Western Australia. Two months later both parties and the child travelled together back to the Central Coast of New South Wales. They stayed with the maternal grandparents. There were arguments between the father and the maternal grandfather.
The father went back to Western Australia for two months, returned and was homeless.
On 28 December 2011 the parties separated after a confrontation between the maternal grandfather and the father. The first child was almost two and the mother was at the mid-point of a second pregnancy.
The father had limited contact with the first child until after the second child was born in 2012.
In January 2012 the father entered H House at I Hospital in Sydney and completed a 28 day rehabilitation program.[1] It is unclear to me exactly what the rehabilitation was for, but may have related to the dexamphetamine use in Western Australia.
[1] Family Report No. 1 dated 17/06/2013, par 6
In April 2012 the parties attended a Legal-Aid mediation conference and created a parenting plan for the first child and the child about to be born. Soon after the second child was born the parenting plan collapsed.

History of Litigation

On 18 May 2012 the mother filed her Initiating Application in the Federal Circuit Court. She sought orders as follows:
a)Equal shared parental responsibility;
b)Residence of the children with her;
c)Alternate weekends from Friday to Sunday with the father dependent on him having suitable accommodation; and
d)Specific orders in relation to provision of information, consents, restraints and authorities.
Appropriately, given the age of the second child, the interim orders sought were very different.
On 13 July 2012 the father filed his Response. He also sought equal shared parental responsibility and proposed week about equal time, shared care and half school holidays on a final basis.
His interim orders sought were suitable and pragmatic: Three two hour periods at a contact centre, followed by three whole days per week from 10.00 am to 5.00 pm once he obtained suitable accommodation. Together with the Response the father filed a Notice of Risk of Abuse. It related to alleged abuse, threat and assault by the maternal grandfather on the father. It raised no issue about the children.
The father continues to blame the maternal grandfather for the breakdown of his relationship with the mother. The alleged assault on him by the maternal grandfather was a live issue right up to the conclusion of submissions in this hearing.
On 1 August 2012 the parties reached agreement and a set of suitable interim orders were made by consent. At that point, the matter had the look of being capable of resolution. One condition of those orders was that the father file, what was described as a “mental health report”. The orders went on to say that if that report was positive his time with the children would be unsupervised.
The matter was adjourned to 23 November 2012, about four months.
Over the following weeks the father attended the mother’s house uninvited. He also sent her numerous SMS text messages. The mother contacted police about the father and applied for an Apprehended Violence Order (“AVO”).
On 31 October 2012 the mother filed an Application in a Case seeking orders for restraints on the father’s behaviour and for reduction of telephone contact between the father and the older child from every second day, as had been agreed, to each Wednesday.
On 22 November 2012, the day before the adjourned court date, the father filed by way of compliance with the Orders made on 1 August 2012, a Mental Health Report. This was a report by Ms J, clinical and forensic psychologist. The report became an exhibit in these proceedings.[2] The report was clear and definite. It revealed that the father had been seeing the psychologist for the four months prior, for “treatment of stress and anxiety, reactive to the ongoing parental access matter”. The psychologist repeated what she must have been told by the father, that is that he had a history of alcohol and drug abuse from his mid-teens and that he had become sober and drug free in 2000 and remaining thereafter abstinent from alcohol and illicit drugs. She noted he was a member of Alcoholic Anonymous attending several meetings per week.
[2] Exhibit 4
The report also referred to the misdiagnosis in 2010 of ADHD and prescription of medication to which the father had an adverse reaction, namely mood swings and at time erratic behaviour, “After some months in late 2011 he decided to refute the medical opinion and cease the medication. He is now fully recovered from this debacle”.
The final paragraph is the most significant one,
On clinical assessment [Mr Ralph] shows no evidence of any mental illness. His anxiety level is appropriate in the light of his current circumstances and in spite of the pressures, he is coping well. Furthermore, he is realistic in anticipating that the process of bonding with his children will take time and for this he is prepared. To conclude I believe that [Mr Ralph] is a caring father who wishes to nurture. He poses no threat in any way to the welfare of his family and I know of no psychological reason for regular access to be withheld.
On 23 November 2012 the mother’s Application in a Case was apparently considered, an ICL was appointed and a procedural order made by the Court for a second report by the father’s treating psychologist. The order made, potentially imposed a burden on the father financially. In my view, the order created an improper task for the psychologist to undertake,
2.Within 7 days father cause to be provided to the father’s psychologist [Ms J], a full copy of the mother’s affidavit affirmed 15 May 2012 and 29 October 2012, and request her to prepare an updated report into the father’s current psychological condition, confirming whether her views as expressed in her report dated 11 October 2012 are changed, having consulted with the father, and read the two affidavits.
3.Father cause Dr J to annex a copy of both affidavits to any updating report.
The father was directed to file and serve the report within 7 days of receiving it.
The psychologist was a treating practitioner for the father. She was not, and did not purport to be, a Single Expert. She is a forensic psychologist and therefore would understood, and did, that the affidavits provided to her were untested.
The matter was adjourned for three months to enable this to happen.
During this period of adjournment, on 21 December 2012 the mother obtained an AVO for her protection against the father for a period of two years. This order addressed the father coming to the home of the mother uninvited.
On 18 February 2013, the adjourned date, the matter came back before the Federal Circuit Court.
In the meantime the father had obtained from his treating psychologist a second report as ordered. The psychologist noted that whether or not an AVO was put in place, that she believed the best course of action at that time was minimal parental exchange, ideally restricted to the facilitation of regular telephone contact and no other conversations or encounters. She said that she did not see the father as a threat to the mother but appreciated her concerns “given his verbal theatrics”. The significant paragraph was the last one: [3]
To conclude, I restate my view as expressed in my earlier report that [Mr Ralph] presents no danger to his family but advise the parents to disassociate from each other as any unpleasantness affects children to some degree. Furthermore I recommend that the father have more frequent contact with his son [name], weekly rather than fortnightly, and that their time together not be totally shared with baby [name].
[3] Exhibit 4
On 18 February 2013, on the adjourned date, the parties consented to a set of orders which saw time between the father and each child progressing, increasing and unsupervised. A Family Report was ordered and the matter adjourned for five months to 1 July 2013.
I infer that the parties agreed that the two reports of Dr J were sufficient to establish that there was no mental health reason for the father not to have substantial and significant time with the children.
Again, at the point where these interim Orders were made the matter had the look of being capable of resolution.
The AVO had had its effect and the parties themselves came to these proper arrangements.
On 18 May 2013 interviews were conducted for the Family Report with each of the parents and the maternal grandmother.
On 21 June 2013 the Family Report was released.
The reporter was generally unfavourable to the children spending substantial time with the father. The Family Consultant recommended that the father’s time be limited to four hour periods on two days per week.[4] There was also a recommendation that the father undergo an independent psychiatric assessment and that unsupervised time be dependent on him presenting evidence of stable mental health.
[4] Family Report No. 1 dated 17/06/2013, page 25, par III

At the time of release of the report the father had been spending significant unsupervised time with both children for about four months.
The Family Consultant chose to give priority to her interpretation of the notes of the psychologist for the father, Ms J, over the reports that the psychologist had provided to the Court. The Family Consultant was wrong to say that the father had been ordered to have a psychiatric assessment completed for the Court. The parties had agreed that he should obtain a “Mental Health Report”. The Family Consultant said this,[5]
While his treating psychologist, [Ms J], provided a letter to the Court suggesting that [Mr Ralph] ‘poses no threat’ to the children, the subpoenaed medical records appear to suggest that Ms J has significant reservations about [Mr Ralph’s] capacity to parent effectively and his ability to remain child focused.
[5] Family Report No. 1 dated 17/06/2013, par 8
This reference to Ms J providing a letter is to underestimate the fact that she was the father’s treating psychologist, had been seeing him since July 2012 and had provided two reports to the Court. It was also an overstatement in my view for the Family Consultant to have said, “It is common ground that [Mr Ralph] has a history of substance abuse and mental health issues.” There is no suggestion by the mother that the father has abused substances other than taking prescribed dexamphetamine in Western Australia and there was no common ground about the father having mental health issues whatever that means.
The father was open with the Family Consultant about the impact of dexamphetamine on his conduct. Possibilities are raised by the Family Consultant that the father “… may be experiencing persecutory delusions and paranoia that commonly accompany psychosis, this paints a concerning picture about the mental health of [Mr Ralph]. While there is the possibility that there may be some truth in these claims (misconduct by police officers) it appears very unlikely”. The Family Consultant goes on to say:[6]
While it is not the purpose of this report to assess [Mr Ralph’s] mental health, it is a recommendation of the Family Consultant that a formal independent assessment of [Mr Ralph’s] mental health be conducted if he is going to have ongoing unsupervised time …
[6] Family Report No. 1 dated 17/06/2013, par 19
Given his presentation in Court events before me over the last twelve months I can readily accept that the father was probably belligerent or at least accusatory, that he talked over the top of the Family Consultant and demanded his right to speak uninterrupted.
There are many comments through the report of the rude and dismissive statements that the father made such as, “The ADVO is a crock of shit”. That is the manner and language of the father on occasions.
At that point, with a Family Report making such recommendations, the matter cried out for determination, given the conflict between the evidence of the father’s own treating practitioner and the fears and possibilities raised by the Family Consultant.
The observation of the children with each of their parents was positive. The mother was described as warm, attentive and appropriate. The father was described as exuberant on arrival to see the children but as having paid attention to both of them and that “Both children were enthusiastically playing with him. Mr Ralph appeared to remain child focused during the play time. The children were warm and responsive to Mr Ralph’s affection”.[7]
[7] Family Report No. 1 dated 17/06/2013, par 89
The Family Consultant noted that the father asked the older child to say “I love you Daddy” which appeared to put some pressure on him. This was the only negative in the observations.
On 1 July 2013 the matter came back before the Federal Circuit Court on the adjourned date. Rather than being set down for hearing another set of interim Consent Orders were made. These Orders were in line with the recommendations of the Family Consultant: Four hours on two separate days per week, supervised until the father underwent psychiatric assessment and, for a reason which I have been unable to determine from the Orders made, the mother was also ordered to undertake a psychiatric assessment. The matter was stood over for seven months while these two assessments were to take place.
On 6 February 2014 the matter came back before the Federal Circuit Court. Procedural Orders were made by the Court. The first one being that the father obtain a report from a psychiatrist that provides an opinion as to his mental state or any diagnosed mental illness and in preparing such report, be provided with a copy of the Family Report. The father was also to provide a copy of the procedural Orders to the psychiatrist. The father’s consultant psychiatrist was directed to speak to him (the father) about the father’s belief that the elder child may have been sexually abused as an infant and his beliefs or concerns that both children may be sexually abused in the future. The mother was directed to cause a copy of a report from her psychiatrist within 28 days.
There is no evidence as to whether or not the cost of such a forensic exercise was considered, nor, more significantly, of the forensic value to the Court of the exercise. This was not the appointment of a Single Expert and since neither of the parties was already consulting a psychiatrist the information given would inevitably be affected by the context in which the reports were being prepared. The matter was adjourned for a further period of six months.
Both parties complied with the orders.
On 19 March 2014 the mother produced a report funded by Legal Aid from Dr K, child and adolescent psychiatrist at New South Wales Health. Dr K, quite properly in my view, identified that the orders did not specify the purpose of the assessment. Dr K did not see the children or anyone other than the mother. She did conclude that there was likely to be “major developmental trauma for the children of witnessing interpersonal violence”. Dr K concluded that the mother was mentally fit and safe to raise the children but could be assisted by counselling which she recommended.
On 20 March 2014 the father filed an Application in a Case seeking the discharge of the interim orders made by consent five months previously but if there was to be ongoing supervision, he proposed that his then partner, Ms L, be the supervisor.
On 7 April 2014 the solicitor for the father filed and served an Affidavit by a psychiatrist, Dr M, who had assessed the father. Dr M read the Court orders, the Family Report of 17 June 2013 and the reports from Ms J in 2012, the father’s psychologist. His conclusion under mental state examination[8] was as follows:
[Mr Ralph] presented as a 51 year old male with brown hair and blue eyes. He was clear and reactive with no evidence of thought disorder or any other obvious signs of psychosis. He reported his mood as “good most of the time … I’ve done a lot of work on myself, I’m not a saint, not perfect, I do the best I can … I have a clear view of what is going on in the world, I want to improve myself and my situation”. He was not depressed and not suicidal. He was not manic. [Mr Ralph] has some insight into his emotional difficulties with the intention of continuing AA meetings. He was willing to see a psychologist and/or a psychiatrist should this be indicated.
[8] Exhibit 3
Dr M referred to the specific questions he had been asked in relation to diagnosis and prognosis in relation to the father’s health. He noted the history of substance use disorder, cannabis and amphetamines, currently in remission, that is since 2000. He noted that it would appear that the addiction problems were precipitated by the physical abuse he suffered at the hands of his father and the genetic predisposition to alcoholism from his father’s drinking. He noted that a diagnosis had been made in 1994 of manic depressive illness when the father was prescribed with a mood stabilising medication. That he had also seen a psychiatrist around 2001/2002 with no medication prescribed since that time.
The doctor concluded that there was insufficient evidence to make a diagnosis of bi-polar disorder on the current assessment but the possibility of an underlying bi-polar disorder cannot be excluded. The psychiatrist confirmed that in his view the father did not have features of childhood or adulthood ADHD, agreeing probably being incorrectly diagnosed with that condition in 2010 and had suffered adverse effects from the prescription of dexamphetamine. The doctor ruled out a schizophrenic illness but added that he “Probably had a paranoid personality disorder and/or delusional disorder … such conditions tend to run a chronic course being most prominent in terms of mistrust of intimate partners or authorities, rather than acute episodes of psychosis requiring hospitalisation”.
In answer to the question whether the father posed any immediate risk of harm or threat to his children if he had unsupervised time with them, Dr M’s response[9] was:
No, [Mr Ralph] reported a close and loving relationship with his two children and is unlikely to harm them if left unsupervised. There were no indications he harboured violent fantasies or has been violent to his children in the past.
The positive regard for his children expressed at the time of assessment with myself and his engagement in counselling in the past, ongoing AA attendance and openness to engage in further psychiatric/psychological treatment were all positive pragmatic factors.
[9] Exhibit 3
In response to a question about recommendations for the future, the psychiatrist laid out a treatment plan including a mental health plan, a possible trial of an anti-psychotic medication as a mood stabiliser and referral to a clinical psychologist for Cognitive Behaviour Therapy (“CBT”). The psychiatrist was clear to say that the treatments recommended were community based and the father did not require admission to a psychiatric hospital or drug and alcohol rehabilitation.
On that same day, 7 April 2014, as the psychiatric assessment by a psychiatrist of the father, a further set of interim consent Orders were made, discharging all previous orders, reverting to unsupervised time for the children with the father each alternate weekend and noting the intention of the parties to attend a Legal Aid Conference once the father had commenced his overnight time. An outstanding issue was parental responsibility. The matter was not set down for final hearing on the outstanding issues, rather it was adjourned for a period of six months.
On 27 June 2014 an Order was made by the Federal Circuit Court that the father have leave to provide the Family Report and the report of the psychiatrist, Dr M, to his treating psychiatrist and clinical psychiatrist.
On 30 October 2014 the matter came back before the Federal Circuit Court on the adjourned date. A further set of interim consent Orders were made and a second Family Report was ordered. The orders made were of a trivial nature, alteration of changeovers, a restraint on allowing the children to sleep in bunkbeds, a restraint on the father from cutting the children’s hair.
I am unable to discern from the file why a second Family Report was ordered. It was to be released in July 2015. That is, more than six months after these orders making minor adjustments had been made. An order was made setting the matter down for hearing for three days commencing 12 August 2015.
In December 2014 the father’s relationship with his then partner, Ms L, ended.
On 5 June 2015 the parties attended interviews for the second Family Report with a different Family Consultant.
On 13 July 2015 the second Family Report was released. The recommendations were consistent with the interim orders put in place by consent by the parties, 15 months previously, that is, that the parties not share parental responsibility, that the children live with the mother and spend time with the father on alternate weekends but with holiday time for no more than one overnight until the father complied with the treatment plan laid out by Dr M.
The Family Consultant also set out a range of community services which would assist the father in obtaining his treatment plan and made recommendations for the mother to a supportive organisation, Circle of Security. Both parties were referred to Unifam for counselling and mediation. However well intentioned, the restriction on holiday time until the father complied with Dr M’s treatment plan, something that had been offered as a benefit to the father, became a pre-condition in the Family Report for the father to meet.
About one month after the release of the second report, the mother filed an Affidavit sworn by the father’s recently estranged partner Ms L, deposing to the fact that in her opinion the father had been convinced that the children’s stepfather was sexually abusing them. Ms L deposed the father had been checking the children’s genitals for bruising or bleeding when changing nappies or taking pants off. She also attested to the father posting comments on Facebook that the stepfather was a paedophile. Ms L reported these matters to the mother.
The mother made a notification to the Department of Family and Community Services (“the Department”) and filed an Application in a Case asking for time between the children and the father to revert to fortnightly time, two hours supervised.
The mother filed her Application in a Case on 12 August 2015 which should have been the commencement of the three day hearing. I have not been able to find anything in the record of the Federal Circuit Court which explains why the final hearing did not proceed.
This issue of the final hearing of 12 August 2015, which did not take place, has some bearing on my attitude to the father attending unprepared for the final hearing in this Court. I take into account that having had that experience the father may not have understood what was involved in a final hearing nor accepted that it would inevitably take place.
In the same way, I take into account that the mother, by making a statement in her Affidavit (supporting the Application in a Case), that she would not provide the children for contact until her application had been dealt with, need not be interpreted as contemptuous of court orders given that a final hearing was due to commence on 12 August 2015.
The matter was allowed to slip away from final determination after three and a half years. It appears that there had been no testing of the evidence on any occasion, neither party had stepped into the witness box. Despite two Family Reports and four expert reports, the matter was no closer to final determination.
On 14 October 2015 the father filed his Response to the mother’s Application in a Case. On an interim basis he asked that the proceedings be moved to the Family Court in Sydney and that the orders in place, continue. He also made a request for a JIRT investigation “into all parties concerned”.
The father filed a Notice of Risk of Abuse which related to the stepfather smacking the children and the maternal grandfather having assaulted the father some years previously. He also alleged that the mother was practising parental alienation. The father was inclined to, and still does, blame the mother for the protracted proceedings.
Each of the parties filed an additional Affidavit in respect of the Application in a Case.
On 30 October 2015 the matter came before the Federal Circuit Court and on that day, the Court noted that “the father alleges the children have been sexually abused whilst in the care of the mother, mother alleges the father is looking and/or touching the children’s genitals inspecting for signs of abuse”. On that basis the matter was transferred to this Court.
On 9 November 2015 all outstanding applications, final and interim, came before the Registrar of this Court. The matter was considered for inclusion in the Magellan Protocol and rejected, quite properly with respect, by the Registrar. There being no current or past JIRT investigation, no charges laid or considered against any alleged perpetrator and the allegations being historical having been made 6 February 2014, the matter quite clearly did not fit the guidelines.
On 19 November 2015 the mother filed another Application in a Case and Affidavit, again raising supervised time for the children in a centre and restraints on the father’s conduct.
On 3 December 2015 the matter came before me. On that day there was a determination of interim parenting orders and the matter adjourned.
On 11 December 2015 the mother filed an Application in a Case in relation to the father’s postings on Facebook which identified the parties’ children, legal representatives etc.
On 18 December 2015 an order was made for the father to remove all references to proceedings that he had posted. The father did not attend on 27 January 2016 in respect of that issue but the mother withdrew her application, the father having complied with the orders.
On 23 February 2016 the matter was set down for four days of final hearing, directions were made for filing of documents.
The mother filed her documents as directed.
On 23 March 2016 the mother filed her Amended Initiating Application. For the first time she proposed on a final basis that there be no time between the children and the father at all. Having heard all of the evidence I conclude that almost four years of uncontained litigation has had an adverse impact on the ability of the mother to contemplate implementing any more Court orders.
As stated earlier in these Reasons, the father did not file any documents and did not prepare for the hearing. However, the father did spend time with the children at a contact centre as ordered on an interim basis in December 2015. The records of the visits were not at Court. The father did not issue a subpoena nor did either of the other parties. The Court would have been assisted by those records. The father had asked at the centre on the Friday prior to the trial commencing, and was told that a subpoena was required.
Given the total silence of the father in respect of the proceedings in this Court it may be that the other two parties expected that the father would not attend the final hearing. He did, and I am satisfied that he did so, uncertain as to what would happen, if anything, but committed to a relationship with his children. He put himself at a disadvantage by not filing an Affidavit reflecting his current circumstances and a Response proposing realistic orders but his presence is significant.
The mother has a grant of Legal Aid, the father does not. He has been in uncertain financial circumstances since his bankruptcy in 2008. He was, it seems, recently evicted from his premises through inability to pay the rent. He has been previously legally represented and he may well have disentitled himself to Legal Aid representation. He can be difficult, abrasive; inclined to grand stand and be dramatic at times but I am not in a position of knowledge as to why he lost representation. If his statements to the first Family Consultant are accurate, he tended to blame previous lawyers for his difficulties and lack of progress in the Court.
It is with a considerable sense of frustration that I now determine on a final basis a matter so incomplete, yet with such a history.

ISSUES

The father conceded that he is not in a position to have the children living with him in an equal shared care arrangement. His accommodation is unsuitable, he does not have sufficient funds to support them and he properly acknowledged the disruption to their life by such a change.
The father acknowledged, despite some criticism, that the children were doing well in the mother’s household. In his final submission the father said, “The children have stability with their mother and stepfather, they are fed, clothed and educated and I am grateful for that.”
The issues reduced to become what time and communication, if any, should there be between the children and their father.

Until March 2016 the mother would have agreed to alternate weekends and time in holiday periods. I accept that she was very much distressed by the defamatory postings by the father about her partner Mr F, and worried by what she describes as the father’s obsession with the idea that Mr F may have molested the children. This led to the father checking, on at least one occasion, the older child’s body in the bath and the younger child’s body, by frank inspection of her genitals.
Overall however, I consider that the mother has simply become fed-up with coming to Court, with preparing Affidavits, with contending with the father.
On behalf of the Independent Children’s Lawyer, the position was put that the children have a loving relationship with their father and have enjoyed their time with him in the centre. Although there is no documentary evidence of the latter proposition, to her great credit the mother readily conceded that was so.
The question is, should time, which the children enjoy, stop for fear of difficulties breaking out between the parents if unsupervised time commences or should further arrangements be put in place.

Evidence

The documents relied on in respect of the application were as follows:
The mother [Applicant]
(a)Amended Initiating Application filed 23/03/2016;
(b)Affidavit of the mother filed 1/09/2016;
(c)Affidavit of the mother’s partner, Mr N, filed 1/09/2016;
(d)Affidavit of Mr O, solicitor for the mother, filed 19/03/2014 annexing the psychiatric assessment of Dr K;
(e)Notice of Risk filed 17/08/2015;
The father [Respondent]
(f)Response filed 13/07/2012;
(g)Response filed 14/10/2015;
(h)Notice of Risk filed 13/07/2012;
(i)Notice of Risk filed 14/10/2015;
Reports
(j)Family Report dated 17/06/2013; and
(k)Family Report dated 10/07/2015.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

The benefit to the child of having a meaningful relationship with both the child’s parents is an important consideration here.
The children have their most significant relationship with their mother who has been their primary carer all their lives. They apparently also have an important relationship with their stepfather. However they do both have a meaningful relationship with their father despite all the disruptions to it.
In both Family Reports there was a positive observation of the children’s relationship with their father. In the most recent report[10] there is this:
In observation between the children and the father, [B] was observed to greet the father with hugs and laughter and they were observed interacting in a child focused way regarding activities he wished to pursue, demonstrating that they are well known to each other and that [B] is able to gain safety and security from his father in this setting. A positive attachment was shown to be developing. [C] was observed to be less forthcoming choosing to play with the dolls house on her own with her back to the room. The father appropriately went to her and engaged in her level of play in a child focused manner. [C] responded appropriately and a relationship that appeared close and loving was noted.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[10] Family Report No. 2 dated 10/07/2015, par 71

As a priority children must be protected from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
I am not satisfied that these children have been exposed to such harm by either of their parents and that the meaningful relationship they have should be preserved.
I take into account those feelings the children have for their father have been retained despite the erratic patterns of spending time with him, from as little as two hours a fortnight supervised to alternate weekends and other special times.
The younger child to the proceedings was born just after the parties separated but no doubt she has come to understand who her father is and why he is important to her through the relationship she has with her older brother. In the first six months of B’s life, the father was very much involved on a day to day basis and that relationship was fully developed when the parties separated early in 2012.
The mother has been responsible for making the decisions about the children, where they live, which preschool and school they attend, their education and their health. C was born with a heart condition which was a source of concern to both parents as an infant and I have no doubt the mother has carefully monitored that situation and attended medical appointments as required.

Additional Considerations

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father concedes that he has made very little financial contribution.
The mother is in employment, as is her partner. They both work hard to support the subject children and in the case of the stepfather, his four children from previous relationships. The mother would no doubt be greatly assisted by the father obtaining employment and once he has re-established himself in proper accommodation, paying child support, either through assessment or giving her money as often as he could to assist with all of their needs. Children need clothes, shoes, school books, excursion fees, health expenses, holidays and so it goes on. The father may not have fully acknowledged to himself how frustrating it has been for the mother that she is working to support the children without his input.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

It is clearly appropriate that the children continue to live with their mother and that she have sole parental responsibility for them.
This is not through any lack of interest on the father’s part, but because the communication between the parties, poor when the relationship broke down, is now completely absent.
The mother is antagonised, justifiably, by the father’s behaviour: Sending too many texts, on those occasions when they are together, talking over the top of her, being quite overbearing, and insisting on having his own way.
The mother no longer wants to manage the father. She may know that given the opportunity he is capable of engaging in a respectful conversation but when excited or upset, comes in so strongly that he does not listen to her.
The father has a great faith in mediation and believes that communication could be improved if the parties attended mediation. In my view this is naive. At various points over the last four and a half years this matter may have resolved with the assistance of a mediated conference but it has been too long and too bitter to expect that conciliatory approach to be successful.

The practical difficulty and expense of a child spending time with and communicating with a parent

There are some significant practical difficulties in this case.
The father has recently lost his home, which did have appropriate accommodation for the children, through his inability to meet his rent.
He gave evidence that he had lost a contract [the father is a carpenter] the day before he was due to start. However it seems there is a long history ranging back over at least eight years of the father struggling financially and struggling to maintain lucrative work. He is now a boarder in a house in a suburb of Northern Sydney. The father properly conceded that such a house, with a recent addition of a transitory boarder, a house of single men, would not be an appropriate place for children to stay.
The distance between the parties is about a one hour drive. The expense represents a difficulty for the mother.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Capacity is a real issue here.
On behalf of the mother it was said that until the father has a further psychiatric and psychological assessment or at least complies with the treatment plan laid out by Dr M, he should not spend time with the children. I do not accept this submission. It appears to me that the father has in the past sought medical and psychological assistance when he needed it. Certainly he saw a psychologist in 2012 who noted that he was reactively distressed after the breakdown of this relationship.
Both that treating psychologist and a subsequent psychiatrist came to the conclusion that there was no mental illness present in the father. Dr M raised the possibility of there being a personality disorder or bi-polar disorder but did not make that diagnosis.
I can therefore conclude that the person that the father is, is the person that the mother has always known, other than for a period when he was misdiagnosed with ADHD and reacted adversely to prescribed dexamphetamine. That must have been a difficult period for her to live through. However, since 2011 it is apparent that the father is functioning at a level which is familiar to the mother and she was, until March 2016 content for him to spend time with the children despite his irritating characteristics around communication and his self-righteousness.
The mother has a good capacity to meet the needs of the children and has persevered with orders.
The father raised some non-compliance by the mother with weekend time when the older child wanted to play sport. There was no Contravention Application brought about that. I accept that the mother should have strictly complied but the father should accept that the needs of children should properly be discussed and that the opportunity the mother was talking about, to be involved in the boy’s sport, is a real consideration of parental responsibility and could have been adjusted in the child’s interest.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

The children are aged almost seven and four and a half. They are happy, well-adjusted children who love both their parents and extended family on their mother’s side.

If the child is an Aboriginal child or a Torres Strait Islander child

The children have a right to enjoy their aboriginal culture and there is nothing restricting that right.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

The mother obtained a Family Violence Order for two years. It expired in 2014. The mother currently has the benefit of an interim order under s 68B which restrains the father from coming to the home and approaching her and the children under certain circumstances. That order has promoted what the first Family Consultant said would be of greatest assistance, that is, that the parents be kept away from each other. It is for that reason that I am prepared to make the order on a final basis.
It appears to me that the father remains hopeful that he could still persuade the mother that they regularly meet to chat and discuss the progress and welfare of their children in a civilised way. There is absolutely no indication that that has happened or is likely to happen in the immediate and mid-term future particularly in circumstances when the father has been so offensive about the mother’s partner.
The father in the witness box expressed his remorse by saying that he was stupid to have posted comments about the stepfather on Facebook. He conceded that he had no evidence or proper basis for making such statements. It is certainly a limit on his capacity as a parent that he would say such things on social media, identifying his children, said by him to be at risk in the mother’s household. Third parties reading such material could have involved themselves with adverse impact on the children.
I am satisfied, there is no risk to the children in the mother’s household.

Any other fact or circumstance that the court thinks is relevant

During the course of his submissions which were carefully thought out, the father conceded that his behaviour is at times erratic and disrespectful but submitted that that did not amount to a mental health condition. He is right about that.
He also submitted that the fact that Dr M and both Family Consultants had raised the possibility of him having a mental health condition should not justify cutting him off from his children. In my view, he is right about that too.
The Independent Children’s Lawyer put forward a proposal[11] which supports time between the children and their father. The proposal is a progressive one, contingent on the father attending upon his general practitioner for a mental health assessment and also on his compliance with any mental health plan or psychiatric treatment or counselling recommended. I do not propose to make such a contingent order for the following reasons, discussed during the course of submissions.
[11] Exhibit 6
It may well be that the father would a happier and more stable person if he took up the recommendations of Dr M. They have been put forward by the Doctor as a potential source of benefit to the father. However, that is not a proper basis for becoming a condition in a set of court orders.
The risk, if that is done, is that the father complies with what is ordered in terms of attending appointments, attaining certain documents, at worst paying lip service to what he thought was necessary in order to increase his time with his children. Further, there is no basis for believing that because he went through that process with whatever motivation it would effect a change at all, or a change that would inevitably be beneficial to the children.

Conclusion

In my view the Court is obliged to make orders based on the evidence before it.
The persuasive evidence is of:
i)The relationship between the children and the father, a positive and loving one;
ii)The former willingness of the mother for the father to spend regular time including overnight time provided his accommodation was suitable;
iii)The number of times the parties were able to agree on orders by consent, trying their best to be guided by whatever the most recent report or event was.
There should be time for the children with the father.
The evidence before me supports a period of time continuing the regime of supervised time in a contact centre, then after a relatively short time of three months, proceed to day time unsupervised contact.
At the present time the father is in very straitened financial circumstances. He says he cannot afford to spend money on anything other than day to day essentials and I have no basis not to accept that evidence. He also needs to work and the children would benefit if he did.
In the event that the father is able to obtain independent accommodation with at least two bedrooms to enable the children to stay with him, then the time should progress to alternate weekends, Saturday morning to Sunday afternoon, but no more. Either the mother will be satisfied with his care of the children and restraint in what he says and does with them and be willing to increase that time or she will not.
It is a matter for the father as to whether he chooses to take up the medical/psychological advice that has been offered to him. If he does, and achieves a positive benefit then it would also be a matter for him to provide to the mother written or documentary evidence of positive change or to make a fresh application to the Court for more extensive time, perhaps including holiday time.
In the event that the father believes that he is in a position to have time with the children for more extended, regular periods and for blocks of holiday time, that will be a matter for agreement or for evidence in another Court event.
I make orders accordingly.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 November 2016.

Associate:

Date: 22 November

[2016] FamCA 999

24 November 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness