Mullaly and Mullaly (No. 2)

FAMILY COURT OF AUSTRALIA

MULLALY & MULLALY (NO. 2)

[2018] FamCA 251

FAMILY LAW – CHILDREN –Where the father, after his adjournment application was refused, did not return to court – Where the matter was dealt with on an undefended basis – Where orders were made on an interim basis and the father was given 28 days liberty to relist the matter – Where there is a history of family violence - Where the father suffers from severe mental health issues – Where orders are made that the mother have sole parental responsibility for the child, the child live with her and the father spend no time with the child– Where the father has not complied with the order which afforded him the opportunity to relist the matter - – Where the orders have become final

Family Law Act 1975 (Cth)

APPLICANT:

Ms Mullaly

RESPONDENT:

Mr Mullaly

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

471

2011

DATE DELIVERED:

23 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

5 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies, SC

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Litigant in person (before luncheon adjournment only)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

It is noted that orders 1 to 9 made on 5 March 2018 are now final orders.
The Registrar or her delegate forward by post a sealed copy of these orders and Reasons to the father at V Street, Suburb W and by email to …

ORDERS (made 5.3.18)

The orders made on 2 April 2012 are discharged.
The mother shall have sole parental responsibility for the child B born … 2009 (‘the child’).
The child shall live with the mother.
The father shall spend no time with the child.
The mother shall be at liberty to remove the child from the Commonwealth of Australia for the purpose of taking a holiday.
To facilitate Order 5, the child shall be permitted to travel internationally without the need for the consent of the father to be provided for the issue of a passport to the child. The mother shall be the only person with ‘parental responsibility’ for the child for the purpose of applying for, and being issued with, an Australian passport for the child.
Within six months, the Father shall pay to the mother the sum of $7,500 being one half of the costs of Dr D’s report.
Pursuant to Section 68B of the Family Law Act the father is injuncted and restrained from:
8.1.Contacting, assaulting, molesting, harassing, denigrating or abusing the mother
8.2.approaching or being within 200 metres of the child Maloney or the mother
8.3.Being within 200m of any school or care facility (including outside of school care or vacation care) that the child attends.
8.4.Being within 200m of the mother’s residence
8.5.Being within 200m of the mother’s place of employment
8.6.Contacting the mother by any means other than through her legal representative
The preceding order is an injunction made pursuant to Section 68B of the Family Law Act for the personal protection of Ms Mullaly and the child B, and the provisions Section 68C of the Family Law Act apply to it.
The father may within 28 days seek to relist the matter before me by filing an Application in a Case to do so supported by an affidavit by himself, by any medical practitioner he has consulted and by Ms U explaining his absence from my court room on the afternoon on 5 March 2018 and in his affidavit setting out what he proposes in terms of how the matter should proceed from his point of view.
In the event that that Application in a Case is not filed on or before 4pm 3 April 2018, the orders I have made pending further order will become final orders.
My reasons for the interim orders I have made and for any final orders that may come into operation as a result of these orders are reserved.
The mother’s costs of today be reserved.

NOTATION:

After I refused the father’s adjournment application shortly before 1pm today and adjourned the matter for the commencement of the hearing at 2pm, the father did not return to the court room. I waited until 2.20pm to commence the hearing. Nobody could find the father in the building. The matter proceeded by way of hearing on an undefended basis. That hearing had concluded and I was at the point of making final orders and reserving my reasons when my attention was drawn to an email sent by Ms U at 15.40 to the case coordinator. The text of that email is Exhibit 23. In the circumstances, I make orders pending further order on the basis that, absent further application by the father, these interim orders shall become final orders at 4pm on 3 April 2018.

ORDER MADE IN CHAMBERS

The Registrar or his delegate forward by post a sealed copy of these orders to V Street, Suburb W and by email to ...

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 Mullaly & Mullaly (No. 2) 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 SYDNEY

FILE NUMBER: PAC 471 of 2011

Ms Mullaly

Applicant

And

Mr Mullaly

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern what final orders should be made in respect to parenting arrangements for B born in 2009 (‘the child’).
The child is not currently spending any time with the father. Other than some time with the father during the family report interviews, he has not spent time with him since February 2015. It is the mother’s position that there should be an order for no time between the child and his father.
The mother believes that the father poses an unacceptable risk to the child because of his mental disorder and his behaviour to her and other adults before and after separation. This behaviour includes alcohol abuse which has resulted in multiple arrests, attempts of self-harm and suicide, assaults including those on the maternal grandparents, larceny, incidents of verbal and physical altercations with other adults while the child is present, bombarding the mother with texts and phone calls including those of a graphic nature, stalking, and intimidation of the mother.
As notation 14 made 5 March 2018 indicates, this matter proceeded on an undefended basis. That hearing had concluded and I was at the point of making final orders and reserving my reasons when my attention was drawn to an email sent by Ms U at 15:40 to the case coordinator. The text of that email is contained in Exhibit 23 and set out in Schedule 1. In the circumstances, I make orders pending further order on the basis that, absent further application by the father, these interim orders shall become final orders at 4pm on 3 April 2018.
I now provide reasons for the interim orders.
As set out below, the father has failed to take the opportunity afforded to him by these orders. Consequently the interim orders have now become final orders.

APPLICATIONS

Both the mother and the Independent Children's Lawyer seek that:
7.1.The orders made on 2 April 2012 are discharged;
7.2.The mother shall have sole parental responsibility for the child B born in 2009 (‘the child’);
7.3.The child shall live with the mother;
7.4.The father shall spend no time with the child;
7.5.The mother shall be at liberty to remove the child from the Commonwealth of Australia for the purpose of taking a holiday;
7.6.To facilitate Order 4 the child shall be permitted to travel internationally without the need for the consent of the father to be provided for the issue of a passport to the child. The mother shall be the only person with ‘parental responsibility’ for the child for the purpose of applying for, and being issued with, an Australian passport for the child; and
7.7.Within 28 days the Father shall pay to the mother the sum of $7,500 being one half of the costs of Dr D’s report.
The father, who did not appear, had sought:
8.1.That the mother have sole parental responsibility;
8.2.That the child shall live with the mother;
8.3.That the time the child spends with the father is increased in increments to include overnight time 3 months after the orders, and them each alternative weekend 6 months after the orders;
8.4.Usual school holiday and special occasion time;
8.5.That the parties and child attend counselling; and
8.6.That either party are restrained from residing more than 100 kms from the Greater Sydney Metropolitan Area without first obtaining written consent.

DOCUMENTS RELIED UPON

The documents upon which the mother relies include:
9.1.Amended Application filed 28 June 2017;
9.2.Affidavit of Ms Mullaly filed 18 August 2018;
9.3.Affidavit of Ms X filed 18 August 2018;
9.4.Notice of Risk of Abuse filed 12 May 2015; and
9.5.Material produced on subpoena to be tendered at the hearing.
Although the father did not appear, I take into account two documents filed by the father:
10.1.Affidavit of Mr Mullaly filed 19 September 2017; and
10.2.Affidavit of Ms U filed 19 September 2017.
Neither attended to give evidence.
The single expert, Dr D provided a report dated 30 March 2017. The wife and the Independent Children's Lawyer also tendered a significant volume of documents from subpoenaed material primarily about the father’s mental status and the history of behaviour.

SHORT HISTORY

The applicant mother was born in 1978 and is currently 39 years old.
The respondent father was born in 1979 and is currently 38 years old.
The parties commenced cohabitation in October 2005.
The parties were married in 2006.
The parties’ child, B, was born in 2009 and is currently aged 9.
The parties separated on a final basis on 24 April 2010.

DETAILED CHRONOLOGY

The applicant mother was born in 1978 and is currently 39 years old.
The respondent father was born in 1979 and is currently 38 years old.
In early 1996 the father was convicted of criminal damage (intent to damage/destroy property).
In mid 1996 the father was convicted of theft of a motor vehicle.
In 1998 the father was convicted of being drunk in a public place, use of a motor vehicle in breach of registration, arson, unlawfully being on premises, impersonating a member of the police force and intentionally destroying property.
In 1998 the father was convicted of breach of an intervention order.
In 1999 the father was convicted of making threats to kill with possession of a regulated weapon.
In 2004 the father was convicted of recklessly causing injury, intentional damage of property and breach of an intervention order to obtain a financial advantage.
The parties commenced cohabitation in October 2005.
The parties were married in 2006.
The parties lived with the maternal grandmother from late 2006 until separation.
In July 2007 the father was convicted of mid-range PCA, with his licence expired less than two years before the first offence.
The parties’ child, B, was born in 2009 and is currently aged nine.
In late 2009 the mother alleges that the father overdosed and was taken by ambulance to hospital while the parties were staying with the paternal grandmother in Melbourne.
In mid 2010, the father reports drinking too much and is pulled over by police and charged. He is admitted to hospital; subsequently charged with high range PCA and disqualified from driving for three years.
The parties separated on a final basis on 24 April 2010. The mother asked the father to leave after events involving his drink driving, his attempted suicide and then subsequent, hospitalisation.
In late April 2010, the mother asserts that the father picked up her mobile from the kitchen bench and threw it down the hallway and out the front door. The phone broke the screen on the front door and went through it and out into the bushes. The father’s friend got him out of the home. The father denied this incident occurred.
On 16 July 2010, the mother received 93 missed calls and dozens of text messages from the father in which he threatens the mother and threatened to kill himself.
In mid 2010, the father kicked the maternal grandparents’ car while in the presence of the child. The father was convicted of assault and property damage.
From 17 July 2010 to 25 December 2010 the child did not spend any time with his father.
On 18 July 2010, the first provisional ADVO was issued for the protection of the mother, maternal grandfather and the child.
On 13 September 2010, the father was arrested and attempted to hang himself with a hoodie cord in police custody. The father was scheduled and taken to Y Hospital.
On 25 December 2010 the child spent one hour with the father.
In February 2011 the father commenced a relationship with Ms Z.
In 2012 the father was convicted of driving while disqualified and referred to drug and alcohol counselling as part of his sentence.
In March 2012 the father commenced a relationship with Ms S (Ms S).
On 2 April 2012 final parenting orders were made by consent.
In mid 2012 the father was convicted of larceny as bailee with property greater in value than $2,000 and less than $5,000.
On 14 September 2012 the father said the child spent the first overnight time with him.
On 19 November 2012 the parties obtained a divorce order.
From April 2012 to January 2015 the child spent time with the father in accordance with the final orders dated 2 April 2012 and as varied by agreement including for some overnight periods when the father was living with Ms S. The mother alleged that the father continued to send her messages that harassed and intimidated her.
In March 2013 the police attended at the father’s home and found the father outside his home with two knives. The police secured the knives and handcuffed the father. The father threatened to kill himself and advised the police that he had been drinking all afternoon. It is reported that the father held broken beer bottles and had hit himself over the head with one. The father was conveyed to Y Hospital by police.
In October 2013 the police attended the home of the father due to a domestic dispute.
On 22 May 2014 the father texted the mother, “I’m not giving him back.. see how you like it”.
In September 2014 there was a dispute between Ms S and the father in a car with the child present. The child began crying and was upset.
The police are called again in January 2015 regarding an incident between the father and his partner. The father was arrested and charged with malicious damage. He was later convicted and made the subject of an Apprehended Domestic Violence Order.
Multiple text messages are sent from the father to the mother throughout January threatening self-harm.
In January 2015 the father’s ex partner’s car was set alight. That vehicle was the subject of a dispute between the father and his ex-partner.
During January 2015 the father moved into the home of Ms U.
On 3 February 2015 the father sent the mother a web link to a website containing pornographic images and text relating to the father’s previous partner, Ms S. The mother told the father to take down the website and notified the police. Following this a further image was uploaded with the words “You’re Next”.
On 7 February 2015 the mother received this message from the father, “You can’t do this to me, you can’t stop me from seeing my son. You are going to pay for this! You’re a fu**ing c*nt” and “You have no right! You’re gonna pay, I’ll fight you to the day I die”. The father attended the mother’s home and banged on the door. The mother called the police. The police attend at the mother’s home. The mother received further text messages from the father that night in which he threatened self-harm.
On 8 February 2015 the mother received a graphic picture message from the father of a bloody hand followed by a text message which read – “Goodbye [Ms Mullaly]. I was not bluffing. I’m weak and u pushed me, please take good care of my prince always love him even if he makes mistakes and guide him make sure he doesn’t take the wrong path. He is an amazing little boy. I am proud to have been his daddy!”
Late February 2015 the child ceased spending time with the father. The mother ceased all communication with the father.
In March 2015 the father breached the ADVO for the protection of his former partner Ms S and was subsequently charged. The father was convicted of contravening the ADVO, and stalk/intimidating. The penalties imposed an order for drug and alcohol rehabilitation and psychological assistance.
The father started a Facebook community page and website called “…”. The material was removed following a letter from the mother’s solicitor to the father’s solicitor dated 10 April 2015.
In June 2015 the father was convicted of destroying and damaging property.
In December 2016 the father says in dispute with a neighbour after the neighbour swung a bat at him, that he “went to his vehicle and got an empty nail gun to scare off the neighbour”. The father was charged with three offences.
In December 2017 the father was convicted of common assault.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring 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 child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a 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 (such as grandparents and other relatives); 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 (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

FATHER’S MENTAL STATUS

Borderline Personality Disorder

The single expert has diagnosed the father with significant mental health issues including personality disorder, depression, alcohol dependency and bulimia.
The father has been previously diagnosed with Borderline Personality Disorder. The father refutes this diagnosis, submitting that the doctor who diagnosed him, Dr R, was later discredited. This ignores the numerous other reports from multiple treating professionals who also make similar diagnoses with which the single expert agrees.

The report of Mr CC, clinical psychologist dated 20 August 2010, diagnoses the father with Severe Borderline Personality Disorder. The father’s employer had referred the father for counselling to Mr CC. In this report, the father describes an incident where he had “snapped” when the mother attempted to leave with the child and “verbally abused and pushed his father-in-law, kicked his car and threw fishing rods at him”. This description of events is inconsistent with his affidavit of 19 September 2017 where he denies at paragraph [19] that he ever threw fishing rods at his father-in-law.
The report of psychiatrist Dr DD dated 30 November 2011 also diagnoses the father with Borderline Personality Disorder. Dr DD identified that the father will need one to two years of dialectical behaviour therapy and will have lifelong difficulties stating, “When he is in periods of anger and irritability, he has the potential to hurt others around him.” Still, in August 2015, clinical psychologist Ms EE opined that the father “presented with symptoms of depression and Borderline Personality Disorder”. There is no evidence that the father has undertaken any of the recommended treatment for his diagnosis.
Counsel for the mother submitted that the reports and material were used by the father when he faced a custodial sentence, and that the above reports were all provided by the father in the context of criminal court cases. This is supported by Exhibit 14 which is a letter sent by psychologist Mr FF on 21 September 2016 to the father’s General Practitioner. Mr FF states that the father attended for both psychological treatment and assessment for the purposes of producing a report for his court case and since the completion of the report had not made another appointment.
I accept Counsel for the mother’s submissions that representations made by the father in his affidavit are inconsistent with the numerous professional assessments sought by him in circumstances where a diagnosis benefited him in some other material way. Apart from that, there appears to be no commitment by the father to seek treatment or receive assistance for his Borderline Personality Disorder.

Suicide Attempts

On 11 May 2010 the father was charged with failing to provide a breath test and failing to stop at the testing station. A breath test was eventually taken and the father’s blood alcohol was estimated at about 0.225 mmol per litre. He was transferred to the police station where he subsequently attempted to hang himself in the cells with pieces of his clothing. He repeated these attempts until he was left in his underwear. He was restrained and transported to HH Hospital where he wandered away from the hospital. The police recovered the father and he became the subject of an order under the Mental Health Act.

Alcohol Abuse

The father has had a longstanding history of alcohol dependency since the age of 15 and has been diagnosed with Alcohol Dependence by Mr GG on 22 October 2013. His dependency has resulted in several PCAs, physical altercations and assault charges.
In relation to drink driving offences, the father mentioned to a doctor that he had a DUI in May 2008 that resulted in the loss of licence for six months and a $1,000 fine. The father has been also charged with mid-range PCA resulting in a fine of $400 and six months disqualified licence in 2009, and in 2010 he was fined $400 and given a section 9 bond for 12 months and had his licence disqualified for three years. Subsequently, in 2011 he was found guilty of driving while disqualified from holding a licence.

FAMILY VIOLENCE

Subpoenaed reports from both the Victorian and New South Wales Police show a history of domestic violence between the father and his past domestic partners. The pattern of violence, threats, intimidation and AVO breaches, which are detailed in the police reports, are consistent with the mother’s evidence of the father’s violent behaviour towards her.
Police reports detail domestic violence perpetrated by the father to the mother. They note a history of AVO breaches, intimidation and harassment including the father attending the mother’s home on a number of occasions requesting to see the child and several attempts/threats of self-harm.
The police in their report hold fears for the mother and child due to the father’s “unpredictability and irrationality” and that due to the father’s “erratic behaviour” the police believe that the father is “capable of becoming extremely violent especially due to the increased amounts of threats of self-harm”.
The NSW Police report in Exhibit 15 describes one such incident where, in February 2015, an argument over the telephone occurred between the mother and father which culminated in the father threatening suicide at midnight that evening. Later at 12:12 am the father sent the mother a text of his hand covered in what appeared to be blood. About half an hour later the mother received another text which read as a suicide note blaming the mother. The police attended the scene and it was confirmed that the father had not self-harmed. The father denied ever sending the text messages.
The records which have been tendered detail the father’s behaviour towards other female partners. For example, in September 2004, Victorian Police records describe one such incident between the father and his partner at the time. The couple were residing together. That evening, his former partner returned from work to find the father intoxicated and with her initials carved into the skin of his forearm. An argument commenced where the father accused his former partner of cheating and threatened to kill himself with a large carving knife. His former partner ran out of the home and down the street screaming as the father chased her. Neighbours were alerted and intervened, protecting his former partner until a friend attended the scene to collect her. The father then approached them, picking up his former partner and throwing her to the ground. She suffered minor bruising and swelling to her left hand. The former partner and her friend immediately reported the incident to the police where a warrant was issued for the father’s arrest. He was taken into custody and then granted bail. Upon return to her home that evening, his former partner found the father’s copy of his undertaking of bail with conditions on her bed with a hand written message ‘this doesn’t mean shit I will see you soon’. Bleach had been poured on the entirety of her clothes in her closet.
For a number of days following this incident the Victorian Police report shows the father threatening his former partner and one of her male friends. The father was accused of driving past the home on several occasions and sending threatening text messages to his former partner’s friend reading ‘you are all fucked’ and ‘you just watch yourself’. His former partner had found key scratches on the bonnet of her car. In September 2014, the father, whilst attending his former partner’s street observed her friend leaving the home in his vehicle and attempted to run him off the road. The friend was forced to mount the footpath in an attempt to avoid an accident. The father denied the above claims.
In December 2004 the father was charged and convicted of recklessly causing injury, intentional property damage and several intervention order breaches in relation to the above incidences.
The father is currently in a domestic relationship with Ms U. The couple is currently residing together with Ms U’s previous partner. The NSW Police reports in Exhibit 10 describe an incident on in January 2016 which involved a physical altercation between the father and a man, who while not named in the reports, seems to be Ms U’s previous partner.
The New South Wales Police records (Exhibit 10) include a report made by an elderly couple anonymously requesting the police conduct a welfare check on Ms U’s safety. Counsel for the mother submitted that this was likely Ms U’s parents who were concerned that the father was perpetrating physical violence on their daughter. Ms U is reportedly reliant on the father as their finances are interwoven.
In 1999 the father was found guilty of making threats to kill and possession of a regulated weapon and was sentenced to a two year suspended sentence.
The father has been found guilty in NSW of contravening an AVO in 2010, 2012, and twice in 2015. He has breached intervention orders in Victoria on seven counts in 2004 and has been found guilty of stalk/intimidate in 2004, 2015 and 2016.

Other incidences of violence

There is considerably more material of the father’s violent behaviour from time to time including, for example, his threats with the nail gun and spitting on former employers, but what I have set out is sufficient to demonstrate the history of the outward manifestations of the father’s mental disorder.

THE EFFECT OF THE FATHER’S BEHAVIOUR UPON THE MOTHER

When the mother was seen by the family report writer for the purposes of preparing a Chapter 15 expert report the following was reported:
He scares me. He said he would kill me. I suspect that he will kill us. I need to run. He gets more violent. He would kill me he said, ‘you will be dead’. The worst events that occurred were once he held her by the throat and put his wrist against her. The worst violence was the verbal attacks. He reported her brother to the Police who have investigated her brother and he reported her mother and claimed that she was defrauding her business and this led to also Police involvement.
In addition, [Mr Mullaly] physically attacked her father. [Ms Mullaly] continued, “I can’t see him, I can’t handle him. I’m glad that [B] saw him but I can’t see him……. He will kill us. He’s thrown [Ms U] over. She will leave him. He will kill us.
The mother is the primary carer of the child. The mother has the firmly held belief that the father is capable of killing her and the child. Without making any finding as to whether or not those views are reasonably held, it is in the child’s best interests to make orders which minimise those fears.

THE EXPERT’S OPINION

Having interviewed the parents and assessed the evidence that was then available to him Dr D went onto express the following view:
I find at this stage that I’m not convinced that the father has been able to rehabilitate his personality and mental health problem, alcohol misuse and threatening behaviours to be confident that he is an acceptable risk. I am happy to recommend that the mother remain the primary carer of the child as I believe she is an outstanding parent and will continue to be able to provide well for the child and with her substantial support
In relation to the child’s future exposure to his father, the single expert recommends:
94.1.That there be recognition contact at between 2 - 4 times a year stating that:
I understand that the mother would be unhappy with recognition contact as this potentially opens a door for the father and which the mother finds could be a concern for her and may lead to increased intimidation and threats from the father. However, the intimidation and threats from the father have not been prevented by there being no contract.
94.2.That the father needs to undertake more substantial psychological treatment under the guidance of a psychiatrist. This will offer more future opportunities to have a substantial role in the child’s life.
94.3.That if the father continues to make threats against the mother or her family the expert recommends that supervised contact should cease stating that:
If the Judge accepts that the father has continued to make threats and has continued to try and damage and undermine the various members of the maternal family then in my view the father still presents as an unacceptable risk to the child and to the child’s maternal family.
94.4.Should the father, after two years, show substantial improvement it can then become possible to revisit more substantial time arrangements.
The condition which the father has is a serious one which is not amenable to an easy course of treatment. As set out above, the father has demonstrated a history of failing to take opportunities to attempt to treat his mental disorder.

CONCLUSIONS ABOUT BEST INTERESTS

Many of the statutory considerations which I am required to take into account have little weight in the circumstances of this case where there needs to be a focus on the matters central to the determination of what is in the child’s best interests. Those are:
96.1.The father’s parenting capacity, having regard to his mental disorder and behavioural history including his history of family violence;
96.2.The child’s safety when with his father;
96.3.The mother’s genuinely held fears and the effect of those fears upon her parenting capacity.
The father seeks orders that would build up the time the child spent with him to an arrangement where the child would spend time with his father for four nights per fortnight, half school holidays and on special occasions.
The mother contends that the father is an unacceptable risk to the child because of his behaviour towards her and other adults. It not contended that he has intentionally harmed the child in the past but he appears to be unaware of the damage that his conflict, threats and aggression towards others have on the child and his wellbeing.
The material filed by the mother sets out the father’s persistent regime of terrorising her since separation. He has engaged in this behaviour with seemingly no regard for the impact that it would have on his son in circumstances where the mother has been the child’s primary carer throughout his life. Dr D found that, “[Ms Mullaly] has been traumatised by the relationship and has a chronic adjustment disorder with heightened anxiety from the continued threats and intimidation from [Mr Mullaly]”.
Furthermore, the orders sought by the father show that he has failed to consider the profound effect that his behaviour has had on the mother. It is apparent from the mother’s evidence and that of the court expert that if the time sought by the father was granted she would not be able to cope with it. There is no acknowledgment or acceptance of that position in the father’s orders. His focus seems to be what his entitlements might be rather than looking at the child’s position holistically.
The father himself is suffering from “a persistent depressive disorder and dependent personality disorder with anti social and narcissistic features”. There is no doubt that these aspects of his personality and his mental health issues impact on his parenting ability. Whilst the child has expressed the view that he would like to spend time with his father, the report of Dr D also notes that the child is immature for his age. There is no doubt that the child (given his age and maturity) does not have the capacity to assess any risk of harm or indeed the extent of his father’s manipulation.
In essence, this is a risk case where the level of family violence means that I am satisfied that a no time order as sought by the mother and the Independent Children's Lawyer is warranted.

ORDERS 10 – 12 MADE 5 MARCH 2018

On 5 March 2018 I made the further following orders:
10.    The father may within 28 days seek to relist the matter before me by filing an Application in a Case to do so supported by an affidavit by himself, by any medical practitioner he has consulted and by Ms U explaining his absence from my court room on the afternoon on 5 March 2018 and in his affidavit setting out what he proposes in terms of how the matter should proceed from his point of view.
11.    In the event that that Application in a Case is not filed on or before 4pm 3 April 2018, the orders I have made pending further order will become final orders.
12.    My reasons for the interim orders I have made and for any final orders that may come into operation as a result of these orders are reserved.
As I noted on 5 March, after I refused the father’s adjournment application shortly before 1pm on that day, and adjourned the matter for the commencement of the hearing at 2pm, the father did not return to the court room. I waited until 2.20pm to commence the hearing. The father could not be located in the court building. The matter proceeded by way of hearing on an undefended basis. That hearing had concluded and I was at the point of making final orders and reserving my reasons when my attention was drawn to an email sent by Ms U at 3.40pm to the case coordinator. The text of that email is Exhibit 23. In the circumstances, I made orders pending further order on the basis that, absent further application by the father, these interim orders shall become final orders at 4pm on 3 April 2018.
On 6 March 2018 at 9:27 the father, in accordance with order 15, was sent a copy of the orders that had been made on 5 March 2018 to his email address.
On 6 March 2018 at 9:42 the father sent to the case coordinator an email in the terms of Schedule 2.
At 2.34pm on 3 April the father uploaded to the portal an application in a case which asserted that “The orders are appended”. There were no orders appended. The father also uploaded what purported to be two affidavits, which documents were totally blank.
At 4:44pm on 3 April the client services officer sent the following email to the father:
Dear [Mr Mullaly],
This has reference to the Application in a Case and affidavit efiled this afternoon.
Please be informed that the Application in a Case and affidavits has been voided because it is incomplete and no orders sought appended to it and the supporting affidavits are blank.
We also tried to contact you by phone but there was no response.
At 17:00 on 3 April the father sent the following email:
Hi [client services officer]
Sorry I am currently in a meeting, I assume you tried calling from a private number??. This was filed online only a few hours ago and I received confirmation to that effect.
I don’t understand what you mean the orders sort and the affidavits are blank…..?? How can the documents possibly be blank, they were not blank when I uploaded them..!! I followed all the instructions online and they appeared to upload correctly.
This is unbelievable, I am about to leave for Brisbane for work and all the documents are at home. What am I now supposed to do, if you see the attached order of the 5^th March, I was to file this application by 4pm today or basically never see my son again. It’s now 4:55pm….!! I am going to need some time to refile this application in person because obviously the eFiling system is far from reliable, this is outrageous…..!!!
Regards
[Mr Mullaly]
At 12:16, 4 April the father sent the following further email:
Hi [client services officer]
I would really appreciate some assistance or at least a response. I do not accept the these documents were uploaded were blank, its simply not feasible….!!! It is now the case that due to an error beyond my control with the eFiling system, Justice Watts will now make the orders as attached final orders because of this error. What’s more is I cannot even see these alleged “Blank Documents” because they have conveniently been deleted.
As a matter of urgency I would appreciate if someone from the registry contact me and provide some assistance as to how this can be rectified.
Regards
[Mr Mullaly]
On 5 April 2018 the Docket Registrar sent a letter to the father, the mother and the Independent Children's Lawyer in the following terms:
Order 10 made by Watts J on 5 March 2018 provided:
The father may within 28 days seek to relist the matter before me by filing an Application in a Case to do so supported by an affidavit by himself, by any medical practitioner he has consulted and by [Ms U] explaining his absence from my court room on the afternoon on 5 March 2018 and in his affidavit setting out what he proposes in terms of how the matter should proceed from his point of view
At 2.34pm on 3 April 2018 it appears that you filed on the court portal an Application in a Case which did not contain the orders you were seeking and two “affidavits” that were blank.
As you are aware, the orders of 5 March 2018 further provided that the current interim orders would become final if you did not seek to relist the matter before the trial judge in accordance with order 10.
If you assert that you had completed an Application in a Case and that affidavits in support of that application were sworn or affirmed prior to 2.34pm on 3 April 2018, you need to attend the court as soon as is practicable but no longer than 7 days and provide the documents which you say you unsuccessfully attempted to upload.
Once you have attended to that I will refer the matter to the trial judge’s chambers for the consideration of any further listing.

On 19 April 2018 the Docket Registrar made the following notation on the court file:
I note that no material has been filed in this matter by the father subsequent to orders being made by His Honour Justice Watts on 5^th March 2018 despite an extension of time being granted to file such material. Accordingly, the matter is referred to the Trial Judge in chambers for consideration as to any further orders to be made by His Honour.
Given that the father has failed to comply with order 10 made 5 March 2018, orders 1 to 9 made on 5 March 2018 are now final orders.
I direct the Registrar or her delegate forward by post a sealed copy of these orders and Reasons to the father at V Street, Suburb W and by email to …

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 23 April 2018.

Associate:

Date: 23.4.18

SCHEDULE 1 (Ms U’s email 5.3.18 at 15:40)

My name is Ms U. I am the partner of Mr Mullaly who is the respondent father in a matter before Justice Watts today in courtroom 7.

I urgently wish to advise you that upon leaving the court earlier today for lunch, Mr Mullaly was quite traumatized and stressed about the proceeding and was complaining of feeling lightheaded and of pains in his chest. Within approximately five minutes, Mr Mullaly became quite pale and said he felt as though he was going to pass out. Mr Mullaly is now seeking medical treatment.

At this stage, it is uncertain as to whether Mr Mullaly will indeed be able to take any further part in the proceedings due to the stress and trauma he has suffered as a result of the proceedings this morning.

Please feel free to contact me on … should you require any further information.

Regards,

Ms U

SCHEDULE 2 (Father’s email 6.3.18 at 9:42)

Good Morning Case Coordinator,

My name is Mr Mullaly, I am the respondent father and I am writing to you in relation to the above matter that is before Justice Watts.

I attended court yesterday where I made an application for an adjournment under section 57 of the Legal Aid Commissions Act, and this application was dismissed. During the proceedings yesterday I became very distressed and upset as a result of my treatment by the mother's barrister Ms Gillies, in particular I felt extremely intimidated by her unnecessary and unprofessional verbal attacks. I was also subjected to some abusive and intimidating comments made by persons whom attended court with the mother.

As a result of my treatment from the mothers barrister and the process, during the lunchtime adjournment my partner and I went to get some lunch and print documents and I suffered a panic attack and had to seek medical attention. My treating Doctor has suggested that attending court could have a further impact on my health, however It is my intention to attend court today. I would respectfully request being able to speak with the court support liaison officer should such a service be available and/or legal aid duty solicitor prior to any proceedings commencing. I have concerns as to my general health however wish to do everything I can to not cause any further delays to the court.

As I do have some apprehensions about attending court today I respectfully request that someone please contact me the earliest convenience to arrange to meet with them upon arrival at the court this morning. I can be contacted on …

Regards

Mr Mullaly

[2018] FamCA 251

23 April 2018

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