NADILE & RABATIN

[2020] FCCA 17

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADILE & RABATIN [2020] FCCA 17

Catchwords:
FAMILY LAW – Bitter parenting dispute – father alleging mother inventing spurious assaults on the children and influencing children not to see him – father highly critical of independent experts – father not accepting children are scared of him – father denying children’s allegations of assaults – evidence taken as a whole overwhelming –assaults clearly established – father’s unfortunate lack of insight – orders made as proposed by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Goode & Goode [2006] FamCA 1346
Rice v Asplund (1979) FLC 90-725

Applicant: MS NADILE

Respondent: MR RABATIN

File Number: MLC 2874 of 2009

Judgment of: Judge Burchardt

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Melbourne

Delivered on: 10 January 2020

REPRESENTATION

Counsel for the Applicant: Ms Wiener

Solicitors for the Applicant: Peter Lynch

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer: Mr Gardiner

Solicitors for the Independent Children's Lawyer: McCormack & Co

ORDERS

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the children X born 2002 (“X”), Y born 2003 (“Y”) and Z born 2008 (“Z”) (collectively “the children”).

3. In exercising sole parental responsibility, the mother will inform the father, as soon as is practicable, of any major decisions made regarding the children’s health, medical treatment, welfare and/or education.

4. The children live with the mother.

5. The father spend time and communicate with X subject to her wishes.

6. The father have no face-to-face contact with Y and Z.

7. Each parent keep the other informed of any changes to their residential address, telephone numbers or email address within 48 hours of any such change.

8. The mother keep the father informed of any illness or injury occurring to the child, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

9. The mother authorise any medical practitioners upon whom the children may attend to communicate with the father with respect to the children’s medical conditions and/or requirements.

10. The mother authorise the father to receive copies at his expense of the children’s school reports, photographs, newsletters and other like documents.

11. The parties be at liberty to provide a copy of these orders to the children’s schools and any medical practitioner and/or allied health professional attending upon the children.

12. The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

    (b)Discussing these proceedings,

    to or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.

13. The Order appointing the Independent Children’s Lawyer be discharged.

14. All extant applications are hereby dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B.If the Father were to properly direct himself to anger management and Men’s Behavioural Change initiatives, and provide evidence to show an acceptance on his part of the nature of his past conduct and a willingness to endeavour to reach out to his children in a fashion in which he would abandon his criticisms of the mother, the Rice v Asplund (1979) FLC 90-725 doctrine should not be held against him.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 2874 of 2009

MS NADILE

Applicant

And

MR RABATIN

Respondent

REASONS FOR JUDGMENT

Introductory

1. This judgment is concerned with the best interests of three children, X born 2002, Y born 2003 and Z (“Z”) born 2008.  Very unfortunately, all three children have a number of medical difficulties, most pronouncedly so in the case of Y. 

2. The applicant mother’s position is effectively that the father ought not spend time with the children because of the difficulties this has given rise to for them in the past.  The father’s position by way of contrast is that while X should spend time with him in accordance with her wishes, Y and Z should continue to spend time with him pursuant to orders which were effectively suspended in the course of these proceedings.

3. It should be noted at the outset that the father’s position is one of unremitting criticism of the mother whom he roundly accuses of fabricating false allegations against him, both herself and with the connivance of a number of professional persons.  Indeed, it is the father’s view that what one might describe as the system (including the court) is against him. 

4. For the reasons that follow I am going to make the orders proposed by the Independent Children’s Lawyer and supported by the mother. 

Agreed or uncontroversial matters

1. The mother was born in 1973 and the father was born in 1967.  The parties appear to have commenced their relationship in 1999 and married in 2001.  They separated in February 2008 and were divorced on 19 May 2009. 

2. The parties were in previous litigation in 2014 to 2015 during the course of which a Family Report was prepared and ultimately Final Orders were made before Judge O’Sullivan on 16 July 2015 whereby the children lived with the mother and Y and Z spent time with the father. 

3. The conduct of this case has been marked by Contravention Applications by both sides and a number of Applications in a Case of perhaps somewhat reduced forensic value. On 2 February 2018, the Court made Orders suspending the father’s time until a section 11F report due on 2 March 2018 and on that date, an order was made for the father’s time to resume. On 30 April 2018, the father’s time was again suspended and the matter adjourned to trial in August 2018. On the posited trial date of 22 August 2018, the matter was adjourned until February 2019 and orders were made for therapeutic counselling to occur with a counsellor nominated by the Independent Children’s Lawyer.

4. When the matter returned to Court on 15 February 2019, counsel for the Independent Children’s Lawyer submitted that it was apparent that the therapeutic counselling had not worked and the matter was relisted for trial, over the trenchant objections of the father, in November 2019, the earliest available date.

5. A procedural history is not generally of sufficient moment to merit recitation but it will become apparent, I trust, why I have set this history out.

The relevant professional reports  

The Report of Dr A 

1. Though Dr A has touched on at least one area of the voluminous materials put on by the parties, the report of Dr A that caused her, as I understand it, to be required to give evidence was made on 1 August 2014.  It is Annexure H to the mother’s Affidavit affirmed 26 February 2018.  Dr A is a paediatrician and she saw both X and Z in 2014 for paediatric review in the context of concerns regarding allegations against their father.  I note that X told Dr A that:

   The episodes of smacking, ear flicking and so on had been going on for many years.  She told me that her father had said that he was sorry on several occasions and that it wouldn’t happen again, but every time he said this, it would happen again.  She told me that her father would get very angry and shout at them and that it made her feel very frightened and angry.

2. I note that Z told Dr A inter alia that he still liked his father and wished to see him although he did make some complaints. The passage in the report that appears to have given rise to particular emphasis is as follows:

   My only previous contact with Mr Rabatin was in 2012.  A concern about physical discipline was raised with me by Ms Nadile but I have not had any opportunity to meet with Mr Rabatin, or hear his side of events.  In the first instance I wanted to make contact to give him an opportunity to perhaps come and meet with me to obtain further support in managing the children’s behaviour if it was presenting challenges. My contemporaneous notes from 31 July 2012 are as follows:

   Phone call to dad – very aggressive.  I opened with trying to invite him to be involved in the process.  I acknowledged that he hadn’t had access to health professionals involved in his children’s care.  He became quite aggressive and said“what are you getting at”. I told him that I was wanting to support him in managing the difficult behaviours, he said I was talking to him like an idiot.  I said I was trying to give him respect as the children’s father, he asked what the real point was, I said I had concerns specifically about physical discipline, he laughed and said it was ridiculous and hung up. 

   Following on from this conversation in which Mr Rabatin was not only extremely aggressive but also quite belittling of me and dismissive of my concerns, I called Ms Nadile and advised her to contact Protective Services if she had ongoing concerns. 

The Report of Dr B

1. Dr B has filed an Affidavit deposing as to his experience in seeking to undertake therapeutic counselling ordered by the Court on 22 August 2018.  He appends his report dated 7 February 2019.  His report on page 12 of 18 is telling:

   In the sessions with Mr Rabatin he consistently blamed others for not being able to see his children.  In particular, he blamed the children’s Mother, Ms Nadile claiming that she was coaching the children and seeking out professionals who would support her viewpoint.  He stated that believes that no one else sees Ms Nadile’s faults except for him.  He also felt that the report from Dr C @ D Psychology regarding Z’s mental state was the primary reason he was no longer able to see the boys.  He made claims that the legal system was conspiring against him.  He claimed that the children’s school changed documents to support Ms Nadile and that DHHS had taken Ms Nadile’s side and had not engaged adequately with him including not returning his calls. When challenged on these points, he refused to accept that he had any responsibility for why he was not seeing the children.

   Mr Rabatin denied that he had any problems with anger or aggression.  He acknowledged that he raises his voice with the kids but denied he ever gets angry.  He consequently refused to accept the advice he was given about modulating his voice and controlling his actions.  He said that he had been previously advised to attend counselling but had pulled out as he felt it would not have any benefit to him and felt it did not apply to him.  He claimed that any physical discipline with the children had occurred several years ago and was never extreme. He claimed that he merely prodded Z when they were playing football and denied that he had punched him as has been described in court documents – the incident occurred in early 2018.  He dismissed the concerns the children have about seeing him and denied that they were not safe with him.  He felt that the concerns of the children should not dictate if he could see them even if they had concerns about seeing him that they perceived as real and serious. 

   Mr Rabatin’s daughter, X, asked to see her Father, Mr Rabatin with me present in the counselling room in Suburb N.  She had some ground rules to help her feel safe which she asked me to share with her Father.  She requested where each of us would sit so that she could feel safe and be able to exit the room easily and safely if she should need to leave the room, and she asked her Father not to raise any issues from the past such as why she had not seen him for a while.  Mr Rabatin expressed reluctance to agree with these requests but said he would go along.  The joint session was held on 24/10/2018.  When Mr Rabatin came into the room, he tried to sit in a different seat stating that it should not matter where he sat.  He was reminded of the requests X had made and why they had been made.  He tried to dismiss her concerns but complied with her request.  A general conversation ensued about recent events in X’s life.  While talking about who was providing driving instructions to her (she has recently obtained her Learner’s Permit) he appeared to disparage her Mother’s ability to be an adequate driving instructor which bothered X.  He also commented on an incident with Y who had been allowed to drive Mr Rabatin’s car while in the driveway at Mr Rabatin’s home which he felt had been used to support the children not seeing him.  He was reminded not to raise this issue in the past.  A general conversation continued.  X asked her Father about things in his life but he only provided vague answers.  Later in the session Mr Rabatin asked X about why he was not seeing the boys and said her Mother was messing with him.  X tried to explain that no one was trying to mess with him or thinking badly of him but he did not listen to what X was saying or feeling and raised this issue a few more times before X ended this session.  After the session I talked to Mr Rabatin about the session.  He felt that no one had the right to dictate what he could or could not raise in the session. 

2. I note that the report records dissatisfaction on the father’s part with the progress of the counselling and the father’s apparent concern that Dr B was overly empowered.  Two further extracts on page 14 of 18 of the affidavit are also worthy of note:

   During the final session with Mr Rabatin which was held on 17/12/2018, Mr Rabatin continued to dismiss the advice given to him.  The tendency for children to mask their emotions when in a difficult or dangerous situation was discussed.  Mr Rabatin acknowledged that all kids do this but refused to see how this might apply to his boys and their desires to see him.  He again dismissed their concerns and denied any physical abuse.  He again claimed that the courts, the professionals and the schools involved had colluded to keep him from seeing his children.  He again stated his belief that the report from Dr C @ D Psychology was what had stopped him from seeing the boys.

3. The next extract is as follows:

   Mr Rabatin continued to talk over me, and left the counselling room in a bad mood expressing his disgust about how things had proceeded, my unwillingness to follow his agenda and allow him to see the boys, and claimed I was a criminal because of the fees charged for each session (he has only paid for 3 of his sessions and not paid for his half of one of Z’s sessions).  The following day (18/12/2018) I received a phone call from Dr C to inform me that Mr Rabatin had turned up at her clinic acting aggressively and had been out of control.  He apparently threatened them in relation to seeing the boys in a role he feels she played in that. 

The Section 11F Report of Mr E

1. Mr E conducted interviews pursuant to Section 11F of the Family Law Act 1975 (Cth) (“the Act”) on 2 March 2018. Mr E noted the allegations of assaults by the father and the father’s denials. Mr E noted on the second page of his report:

   It was troubling that when the mother was leaving the Registry via the rear stairwell she told Z that, “Mr O is taking us out the back way so you don’t see dad.” 

2. I note that X told Mr E that she was terrified of her father because of his abuse, treatment of her and her siblings, although Mr E noted there was some difficulty with her narrative. 

3. In respect of Z, who Mr E found to be sensitive and gentile:

   Z stated he still loves his father but suggested “he’s not been nice to me”…

   According to Z, his father sometimes shouts at him if he does something wrong.  He said his father once smacked his leg but it was “not that hard … it kind of frightened him.”  He said his father has said “if you do that again I’ll hit you.”  When asked about the incident where his father allegedly punched him in the stomach Z said this occurred when they were playing footy in the backyard and they had a play fight.  He described his father putting his fist out and pressing it against his stomach.  He described this as a punch although he said it did not hurt him.  He said he “didn’t feel good” and was a “bit worried sick”.  

4. I note that Z, however, did not wish to see his father on the day.

The Family Report of Ms F

1. Ms F’s report is lengthy and detailed and I, of course, have regard to all of it.  For present purposes, it is sufficient to note that X was nervous and scared to see her father because he used to hit her and threaten her years ago (paragraph 59).  Z thought the idea of seeing his father on the day of assessment was “Bad” (paragraph 66). 

2. Ms F noted reports from Dr A and Dr G as to Z’s ADHD and anxiety and post-traumatic mental health symptoms (paragraph 67).  The report noted Z’s extremely equivocal views about whether he wished to see his father and noted that he had a different version of the alleged punch in October 2018 now asserting it was not an accident (paragraph 72).

3. Ms F noted material from a number of collateral sources including (but by no means limited to) a report from Dr C, at D Psychology, who identified issues between Z and his father, including Z’s suicidal ideation. 

4. Ms F noted the father’s categorical denials of all concerns of abusive behaviour (paragraph 88) and expressed concern that both Z and his mother’s reports, in relation to the alleged assault, had changed over time significantly (paragraph 89).  At paragraph 90, Ms F noted that because Z had been spoken to or assessed in relation to his father so frequently this might have contributed to his purported fear.

5. At paragraph 91, Ms F noted:

   Mr Rabatin’s rather abstinent position that ‘professionals had already formed their opinions therefore there was no point in communicating with them’ was particularly unhelpful and lacking in insight.

6. Ms F also noted the strong possibility that the mother’s difficulties with depression and anxiety had influenced the nature of her responses to reports that Mr Rabatin had behaved inappropriately and might have responded in a manner disparate to the degree of concern actually required (paragraph 92).  Ms F went on to recommend the therapeutic counselling that was eventually attempted with Dr B.

The Report from Department of Health and Human Services

1. Mr H, Child Protection Practitioner, provided a DHHS response on 17 August 2018.  It noted the extensive history of reports made in respect of the children.  Relevantly, on page 4, the report noted the father’s assertions that the mother was mentally ill and was contriving all the allegations against him together with the father’s statement that he had never seen any evidence that any of his children were in any way scared of him.

2. I note inter alia that at page 4:

   Mr Rabatin stated that he began Suburb J Men's Behavioural Change Program but did not complete this course as he did not find it useful.  Mr Rabatin expressed that he did not believe that he required the support of any services to help build upon his parenting capacity. 

3. The report noted that X did not want to see her father, Y stated that the father was selfish and mean but did not otherwise wish to be interviewed, and that Z was less anxious and scared now that he was not having contact with his father.

4. On page 7, the report noted:

   Child Protection believes that X, Y and Z spoke of their experiences on their own volition and that they were not ‘trained’ by Ms Nadile.  Child Protection is deeply concerned about X, Y and Z’s emotional and physical reactions to contact with Mr Rabatin.  These concerns are compounded by Mr Rabatin’s lack of insight into his behaviours and unwillingness to engage in programs. 

1. A further response has been received from the department dated 17 November 2019 from Ms K, Senior Child Protection Practitioner.  Ms K is Mr H’s supervisor.  Relevantly, this letter, which was tendered as exhibit 1, asserts:

   Child Protection were informed on 7 November 2019 that Mr Rabatin had presented with aggressive and intimidating behaviour towards his Psychologist, which resulted in Police seeking a further Intervention Order against Mr Rabatin. 

   There are also ongoing protective concerns in relation to Mr Rabatin’s behaviour towards Ms Nadile and her children, which is in breach of the Intervention Order.

2. The report noted that the father had been invited to speak with Child Protection but had failed to do so and went on to note that the view of the Department that the father poses a risk to his children, had not been possible to fully assess, and concluded:

   Child Protection would respectfully recommend that Mr Rabatin should not have any unsupervised day time contact and no overnight contact with either of the children until such time that the reported protective concerns had been fully investigated and addressed.

Other Reports

1. As will be apparent from the text of this judgment – and, indeed, from the materials filed – there have been a number of other professionals involved with this family and their materials are dispersed throughout the voluminous affidavit materials of the parties.  For reasons that I hope will become apparent it will not, however, be necessary to detail them further at this point.

The Parties’ Affidavits

1. In a proceeding in which there are 106 items on the Court file, albeit some have been going back to the proceedings in 2014 to 2015, it is immediately apparent that there is no shortage of affidavits.  The mother has been a prolific if not profuse affidavit writer and her style is dense and concentrated.  I have read all of the parties’ affidavits and have appropriate regard to them but do not propose to take a great deal from them at this stage. 

2. The only matter which is, in my opinion, necessary to refer to amidst the parties’ unending mutual recrimination is a passage in the mother’s Affidavit affirmed on 2 October 2019.  At paragraph 11, the mother sets out a series of texts between X and the father.  The original texts are Annexure H to the Affidavit.  What is clear from those exchanges is the complete failure of the father to be able, in his discourse with X, to avoid overt and repeated criticism of the mother and, perhaps more importantly, X’s very clear responses to the effect that she does not want the father to say “bad stuff about my mum.”

3. It should be noted that these extracts are entirely consistent with the father’s behaviour when he saw X with Dr B.

4. As indicated, I have had regard to the parties’ affidavits but, in the circumstances, it is more appropriate to concentrate on what they said at Court. 

The Submissions Made and Evidence Given at Court

1. What follows is taken from my notes.  Self-evidently, it is not a transcript but records aspects of the matter that I found significant. 

2. In opening, counsel for the Independent Children’s Lawyer pointed to the fact that Dr A and Dr C and Dr B were all required to give evidence.  Dr B had attended Court and, as a courtesy – and without any opposition – he was heard first. 

3. Dr B adopted his Affidavit as true and correct.  He noted that the family had ceased to be clients but that he had undertaken reportable therapy pursuant to the orders made on 22 August 2018. 

4. Dr B was first questioned by Mr Rabatin who was representing himself.  Dr B said he had told the father that it would take time to make rapport with the children.  He was going to work towards the children reconciling with the father to see him.  He planned three sessions with the children and three sessions with the father and mother.  He had not been sure that three sessions would be enough.  He remembered the father being aggressive in the last session.  He said the father was talking over him and was loud, red in the face and appeared angry.  He had called Dr B a criminal.

5. Under questioning, by counsel for the Independent Children’s Lawyer, Dr B said he had completed three sessions and provided advice to both the mother and father. 

6. Under questioning by counsel for the mother, Dr B confirmed that the father had said that the legal system was conspiring against him and that he himself was also.

The Opening of the Mother

1. Counsel submitted that in April 2018 time had been suspended.  There was a road map of therapeutic counselling but this had not worked.  The father was to undertake an anger management course but had not done so.  Counsel referred to the Department of Health and Human Services’ letter, which was tended as exhibit 1.  Counsel submitted time should remain suspended but that if the father undertook anger management and counselling, which the mother was prepared to undertake herself, then it is possible there could be a time for the father to make an application.  X should spend time in accordance with her wishes.

2. It should be noted that the father and counsel for the Independent Children’s Lawyer elected not to put any questions to the Mother.

The Opening and Evidence of the Father  

1. The father sought that the earlier arrangements be reinstated.  Time should take place every second weekend and one afternoon a week.  X should spend time with him in accordance with her wishes. 

2. The father was sworn and affirmed his affidavits.  He is an unemployed tradesman. 

3. The father said that the mother’s affidavit of 3 July 2018 had referred to one punch only, that she had not taken the child to the doctor or to Child Protection.  Her affidavit of 29 January 2018 had asserted that Z has no special needs.  He said that Y had never been smacked and there were no threats in Y’s presence or to Z.  The father said Z had disclosed he had been hit in the stomach. 

4. The father referred to disclosures in the Family Report at paragraph 89 but noted the different account given in the section 11F report. The father said the boys never had a bad night while they were with him. Z had told Mr L that he had not been hurt. He had pleaded guilty to a breach of Intervention Order. The father referred to the various reports, including those by Dr A and Dr G, and noted the lengthy list of practitioners the children had seen.

5. Under cross-examination, by counsel for the mother, the father said that Dr B had come as a result of the Family Report and Orders made in August 2018.  It was to repair his relationship with the children and it was in everyone’s best interest to cooperate.  He probably had said that the legal system was conspiring against him.  He has been in Court many times.  He had explained about the allegations of him hitting his children which were lies. 

6. The mother had changed school documents and the Department of Human Services took her side.  He had asked on the phone what it was about but was given no answers.  He asked why they had not come to see him.  He has said raising your voice is not against the law and everyone gets angry.  It was possible Dr B had given him advice about this. 

7. When asked about a Men’s Behavioural Change Program, the father said there was a whiteboard and it was like being in primary school.  It did not seem to be heading anywhere and was repetitive.  Everyone controls their actions.  He did not recall Dr B giving him advice to modulate his voice.  Children’s concerns should be taken into account, but he had said they were safer with him.  He did not recall anything about X driving and did not say that the mother was messing with him.  He might have asked X why he was not seeing the boys.  He did not need to ask her why he was not seeing the boys.  He might have said no one can tell him what to do in the session. 

8. It was apparent from the answers the father gave that he had in fact read Dr B’s report and had indeed been frustrated with his experiences with Dr B. 

9. The father said the boys have been concerned for years.  He just wanted to know about the timeframe in which he was going to see the boys.  When his email to Dr B was put to him he said he did not remember it but he had seen things like this hundreds of times.  He tells the children to brush their teeth in the morning and that their mother should be making them do this. 

10. When asked if he could say anything positive about the mother the father’s response was dramatic.  He threw his plastic cup away.  After a pause during which he endeavoured to compose himself with the assistance of a friend or relative who came forward from the well of the court and put an arm around him and told him words to the effect to relax, the father said the mother was probably a good mother.  He said, “I have not been there for so long.”  He then proceeded to make a statement which can only be described as a vent.  He went on to say that that was when the mother’s campaign started.  There were repetitive lies about him smacking and hitting.  He had said five years ago the children got a legal smack.  There had been no smacking for many years.  The mother gets help in certain areas such as the DHHS and so many places.  Dr A had said Mr Rabatin had been verbally aggressive very early on.  Dr A did not like him disagreeing with her. 

11. The father did not know if the mother was unwell.  It was not for him to decide.  He would accept it if everybody said so.  When it was put to him that he had accused the courts and schools of colluding against him he said this was possible. 

12. When cross-examined about Mr H, the DHHS worker, the father said he had spoken to him on a number of occasions.  He had tried to have a discussion with him but he was not saying much.  He seemed very temporary.  He was perhaps a backpacker.  He was telling the father what he had done with the children and accusing him of punching his son.  The father asked rhetorically, “How many lies do I have to disprove?” 

13. The father said his accusation that the mother might have Munchausen’s by Proxy might have been explained to him.  The mother was trying to alienate the children.  There are lots of things kids don’t like.  Raised voice for sure.  Not seeing them makes it hard to have a relationship with them.  When asked what his solution was the father said it was seeing his children.  Not having them taken away by lies.  The children do not like a raised voice so he cannot say negative things to the children.  He did not believe that this was the right way to go.  He placed no pressure on the children to agree with him.  He wanted the children to hear and know his views.  He had accused the mother of shopping for professionals.  When it was put to him that he was accusing the mother of contriving everything, the father appeared to deny this although as with a number of his answers it was not entirely easy to understand.  He had used the term doctor shopping. 

14. At this point the evidence of Dr A was interposed. 

The evidence of Dr A

1. The father asked questions of Dr A.  She had not seen Y for three years but had seen the other two children more recently.  Z has ADHD.  She had not met the father except for a telephone call in 2012 when the father was very aggressive.  He had asked aggressively “what are you getting at”.  She had tried to help the father but he was very aggressive.  She had written to him because she was concerned the interview had not gone well.  Dr A confirmed that she is undertaking continuing treatment of X and Z.

The evidence of the father continued

1. The father confirmed that he had been interviewed by the police for a breach of the Intervention Order on 29 June 2019.  He denied removing Y from the camera area in June 2019.  He did not recall saying that he did not agree with the Intervention Order but might have said this.  He had not said it does not exist.  He then went on to say that he might have said this.  He just saw his kids.  It is not illegal.  In the end the father seemed to me to admit his breach of the earlier Intervention Order.  He had told the police “I don’t care what you want, do what the fuck you want”. 

2. The father said that everyone involved will pay for what they have done.  The dogs at court will pay for that they’ve done.  It is everyone in the system.  She can say anything to get an order.  Nothing will stop him from seeing his kids because it is based on punches and other lies.  He had been fined $2000 for a second breach of the Intervention Order and $850 for an earlier one.  He had walked next to Y but had not dragged him by the arms.  He had told two people in court they were pigs but had not been escorted out.  There was no justification for Dr C taking out an Intervention Order. 

3. It should be noted that I ceased Ms Wiener’s cross-examination of the father because in my opinion the father’s demeanour in answers had been well and truly indicated and further questioning was not likely to elicit significant additional information commensurate with the time it might have taken. 

4. Under cross-examination by counsel for the Independent Children’s Lawyer, the father agreed that Z’s fear was real but said it was created by the mother.  He did not really agree that Z was suicidal.  He asked rhetorically “how could I know for sure” and said “I do not believe it”.  He does not accept that Z is fearful of him.  This was not his experience of Z.  The father conceded that Dr B, Dr A and the Department of Human Services in the person of Mr H all said he was aggressive.  His natural demeanour could be said to be aggressive.  It could come across like this to children. 

5. When asked why he had not attended counselling as earlier ordered, the father gave no satisfactory answer.  He said there were a lot of recommendations.  He was asked why he had not undertaken anger management but said he had been to quite a few sessions.  At the finish it was like being there on day 1.  When asked about his interviews with Dr B and then going to see Dr C, the father did not remember if this was in the same week.  He had been there and asked her “do you know what you’ve done”.  She had stopped him seeing his children.  It was strange that there were suddenly problems.  He thought Z had told Dr M he was suicidal, that was what was written down.  From all of his experience things were fine.  The claims do not line up with the evidence.  There are different types of therapeutic counselling.  Part of the trouble is he did not see Z in earlier times. 

6. There was no re-examination.

The evidence of the father’s mother

1. The father’s mother, Mrs Rabatin was called by leave.  She is retired.  She said that she would just like to say that the last block of time was two years ago.  She never saw anything wrong.  The children are not afraid of the father and jump on him and went home happy.  The last time she saw the children was at the end of 2018.  The house is safe and the children are happy.  She did not know why they keep disappearing.

Some brief observations about the credit of the witnesses

1. Dr B and Dr A gave their evidence in unsurprisingly measured terms.  They were plainly telling the truth. 

2. As indicated, the court had no opportunity to observe the mother’s demeanour. 

3. The father was I regret to say a poor witness.  He was combative at all points and had a tendency to answer questions with questions.  His answers, for example in relation to why he had not completed the Men’s Behavioural Change Program were evasive and non-responsive.  As indicated, he lost his temper and threw his cup away when pressed as to whether there was anything pleasant he could say about the mother.  At times he was visibly furious when being cross-examined by counsel for the mother.  His demeanour in Court suggested that he is not amenable to influence by third parties he feels may be antithetical to his interest.  I had to ask the father on numerous occasions not to move his seat in the witness box away from the microphone.  He would comply but then move his seat back again.  He impressed me as being a person who sees no great need to cooperate with anyone with whom he does not desire to do so. 

The final submissions of the parties

1. Counsel for the Independent Children’s Lawyer submitted that the reality was the evidence of the two professionals and the Department.  The father had been very aggressive in the witness box and there had been the incident with the cup.  Sometimes there were no problems but there were times when the father’s aggression gets the better of him and the reality is that Z is suicidal.  It does not matter whose fault this is.  Therapeutic counselling did not occur and did not work because of the father’s conduct.  He had seen X but behaved inappropriately. 

2. Then there was the situation with Dr C.  It did not matter whether it was just one day or one week later.  The father had opportunities in the 2015 Orders but had not attended the psychologist.  He had not complied with the Magistrates’ Court in relation to anger management and had breached the Intervention Orders.  Counsel asked rhetorically why he had visited Y’s school at all.  All the father does is blame the mother and the professionals.  The father is obsessed with the incident of the punch but there is far more to it than that.  This is damaging to Z.  The father will never be able to accept blame. 

3. The Independent Children’s Lawyer says there should be no face to face time and that an annotation should be made to the effect that if the father addresses his anger management difficulties and expresses a genuine desire to engage in counselling, then there should be an annotation to the effect the Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) doctrine should not be held against him.

4. Counsel for the mother adopted the submissions of the Independent Children’s Lawyer.  The father had been aggressive to Dr B, Dr A, Dr C, and to the DHHS worker and in the witness box.  He had described court staff as pigs.  He could not control his temper and emotions.  He had been given every opportunity.  His text messages to X were completely inappropriate.  There should not be any orders for time to be spent.  If the father properly engaged with the relevant courses then it would be a different proposition.

5. In final submissions the father said he disagreed with all of it.  He did not agree that what the other parties had put was correct.  There is no problem when he was seeing the children.  Time with the children was the best thing to fix the problems that are there.  He would like to see Z.

6. At this point it is appropriate to proceed to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. There is no doubt that there has been family violence.  Whatever reservations one may have about the extent of family violence, the children have disclosed assaults by their father consistently over the years.  Indeed the father’s own position was that there was physical discipline with the children but that it was many years ago.  Given the father’s concentration, if not obsession on the matter, I would make it clear that I accept the reservations of Ms F about the alleged punch incident.  The fact is that Z told Mr E that it was not a matter that was of significance.  Nonetheless, as counsel for the Independent Children’s Lawyer submitted, there has plainly been much more to it than that.  The father has yelled at the children. I have no doubt he yelled at the mother and he has assaulted the children even if some time ago.  The presumption is therefore plainly rebutted.

2. Even if I were to be wrong as to this, the presumption is plainly rebutted in any event.  The father is absolutely obsessed in his detestation of the mother and there is no prospect whatsoever that this mindset will change.  Indeed it is plainly completely hard-wired into the father’s thinking.  The prospects that the parents could meaningfully exercise joint parental responsibility is wholly unsustainable.  As a matter of practical politics the mother will have to have sole parental responsibility but I will require her to notify the father of any major long-term changes affecting the children and keep him informed of all matters to do with their medical treatment.  The father’s acceptance of the children’s various health difficulties has been problematic over the years (at the time of the 2015 family report he did not even accept that X was autistic by way of illustration) but he is the children’s father and he ought to know what is happening.

The spend time regime – the primary considerations

1. In principle, everyone agrees that it is in the best interests of the children to have a meaningful relationship with both of their parents.  However there are some qualifications to this general proposition.  First, although the mother has said repeatedly and at great length that she is keen for the father to have a relationship with the children, I share Ms F’s doubts as to whether this is truly so.  I think that her desire to protect the children from the various negative qualities that she perceives the father to have is a far stronger emotion in her than any desire for the children to have a relationship with their father.  It might be thought that this is a surprising finding given that I have not seen her cross-examined, but if one reads the plethora of affidavits that she has written from time to time the clear picture that emerges is one of great reservations about the father at every turn and in every way. 

2. In any event this is by no means the decisive consideration. I accept that the father loves his children and very much wishes to see them. Unfortunately, however, there is a need to protect the children from the risk of physical or psychological harm from being subjected to abuse or family violence within the meaning of the extended definition to that latter expression found in section 4AB of the Family Law Act 1975 (Cth) (“the Act”). The father is quite unable to control his behaviour. He could not control his temper even in court. He has shouted at the children and made them fearful of him. When given the opportunity to talk to X with Dr B, the father still could not contain himself and immediately started abusing the mother in X’s presence. The fact that the father does not see that this is a form of abuse is consistent with his most unfortunate and extremely marked lack of insight.

3. It should be noted that the need to protect the children from these risks is required to be given greater weight pursuant to section 60CC(2A) of the Act.

The additional considerations

Section 60CC(3)(a)

1. Although the father takes vivid issue as to how this may have happened, the children have expressed their views extremely clearly.  X, who will relatively shortly turn 17, has made her views entirely clear.  The text interchanges between her and her father show the most regrettable lack of insight on his part and he has effectively alienated his daughter from him.  Y has expressed little by way of views which is, of course, wholly unsurprising given his developmental difficulty, but even he has expressed a negative view of his father.  Z is terrified of his father.  Counsel for the Independent Children’s Lawyer is correct to say that it does not matter why this is the case.  The fact is that he is suffering suicidal ideation which is nothing short of tragic for an 11-year-old child.  The children’s views must, given their ages and circumstances, be given considerable weight.

Section 60CC(3)(b)

1. The children appear to have a very close relationship with their mother who has always been their primary carer.  I note that Ms F thought the children tended to operate to an extent as a unit and given the conflict to which they have been exposed this is in no way surprising.  The children’s relationship with their father is more nuanced.  Both X and Z have from time to time expressed that they might wish to have an ongoing relationship with their father but in a sense only if he changes.  The father’s appallingly insightless behaviour towards his children has undoubtedly contributed in the strongest way to the very regrettable present sundering of his relationship with his children.  His continuing failure to address the sequelae to his angry behaviour in the past which has included assaults, even if historical, and a continuing incapacity on his part to control his temper, even in Court, suggests that his relationship with the children will not improve until and unless he addresses his own behaviour. 

2. It is all the more regrettable that the father’s behaviour has also led to a sundering of the children’s relationship with the paternal grandparents whom I note X misses.  This is yet another unfortunate aspect of this unhappy case. 

Section 60CC(3)(c)

1. Both parents have sought to take the opportunity to participate in making decisions about major long-term issues in relation to the children and spend time and communicate with them.  The intensity of this dispute shows very clearly the father’s love for his children and his desire to spend time and communicate with them.  His own behaviour of course has largely frustrated this purpose.

Section 60CC(3)(ca)

1. The mother has unquestionably fulfilled her obligations to maintain the children.  The father’s capacity to do so has been compromised by his failure to spend time with them.

Section 60CC(3)(d)

1. It is not perhaps the question of separation from their mother that would cause these children distress although in Y’s case, given his difficulties, one might infer it might be significant.  What is really likely to distress the children is being forced to spend any time with their father. 

Section 60CC(3)(e)

1. There is no particular difficulty to which the court has been pointed as to problems with expense in respect to the children spending time and communicating with the father.  The practical difficulty that arises is twofold.  First, the mother is implacably opposed to the father spending time.  She has said over and over again in her materials that she wishes to foment a relationship with the father but I do not accept that that is the case.  Although, as I have said, I have not seen her in the witness box, the tenor of her materials suggests that she is a highly anxious parent.  Her endeavours to prevent the Family Report because of an apprehension it might not be favourable to her speak for themselves.  Nonetheless, the fact is that the children just do not want to see their father at the present time and in my opinion they have good reasons for this.  Whether the mother has subconsciously fomented this outcome is not a matter upon which I am in a position to make a definitive judgment.  I repeat again however that X’s age makes her views determinative and Z’s views could not be clearer.  As counsel for the Independent Children’s Lawyer correctly submitted, it does not really matter now why Z is the way he is.  He is an 11-year-old child who is deeply troubled by the thought of spending any time with his father and that is a critical consideration.

Section 60CC(3)(f)

1. The mother has the capacity clearly to provide for the children’s needs although her anxious obsession with the father is a negative.  The father simply lacks sufficient self-control and insight properly to provide for the children’s emotional needs.  His assertion in effect that everything will be well if the children are forced to spend time with him, which was in truth his position at trial, is incredibly insightless and wide of the mark.  It speaks for itself. 

Section 60CC(3)(g)

1. The mother’s lifestyle and background are unremarkable.  While it appears that she has been abused herself as a child and this may make her more sensitive to allegations of family violence, there is nothing to suggest that she is anything other than an appropriate adult parent.  The father is obsessed with what he perceives to be the alienation conducted by the mother.  He is firmly of the view that the world is against him.  I include the various health professionals, the Department of Health and Human Services and the Court.  It is particularly noteworthy that he has responded so poorly to endeavours by Dr A and Dr B to assist him.  This is part of his insightless construct of his circumstances.  He is a man who has reached a point where, if any circumstance arises that from his point of view obstructs his lawful entitlement to see his children, he responds extremely poorly.  He failed property to engage with Dr B and this failure was wholly his own responsibility and wholly as a result of the difficulties his personality presents.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. This of course is an important subsection but it has in a sense already been largely canvassed above.  The mother is an anxious mother but is in all other ways a good and responsible parent with an appropriate albeit slightly over-protective view of the children.  The father’s view of the children struck me as being very possessory in its nature.  I have no doubt he adores his children and desperately wants to see them.  Most unfortunately, the way he has gone about this has been so counterproductive that we now face the impasse to which I have already referred on more than one occasion. 

Section 60CC(3)(j)

1. There has unquestionably been family violence during and after the relationship within the extended definition in section 4AB of the Act. While I do not accept that the father punched Z in 2018, a matter that has achieved an obsessive prominence in the father’s thinking, the children have disclosed slaps and the like over a number of years and there is no doubt that this occurred. The father’s failure to realise that this has impacted his relationship with his children is yet another example of his lack of insight.

Section 60CC(3)(k)

1. I confess I am not entirely clear whether there are any extant Intervention Orders but they would add nothing to the case in any event give the overarching circumstances.

Section 60CC(3)(l)

1. It is plainly appropriate to make final orders now and bring these very unhappy proceedings to a conclusion. 

Section 60CC(3)(m)

1. The only other relevant consideration is that raised by the Independent Children’s Lawyer and, as I understand it, not objected to by the mother.  As I have indicated, the children, and in particular X and Z, have from time to time made it clear that they have at least a residual element of affection for those aspects of their father that they recall as being good.  I accept the submission of the Independent Children’s Lawyer that if the father were to properly direct himself to anger management and Men’s Behavioural Change initiatives, and provide appropriate evidence to show an acceptance on his part of the nature of his past conduct and a willingness to endeavour to reach out to his children in a fashion in which he would abandon his criticisms of the mother, then he should not face a Rice & Asplund objection.  The pathway for Mr Rabatin to repair his relationship with the children is therefore clearly set out before him.  I have to confess, and most regrettably, that I do not have any confidence that Mr Rabatin will be able to take this opportunity because his mindset as evinced in court is so clearly established but I think he should be given at least the opportunity.

Conclusion

1. I have drawn orders to reflect these conclusions.  I should conclude by saying that all parenting cases are sad and this one is desperately so.  For all Mr Rabatin’s unattractive qualities, I have no doubt that he loves his children.  It is little short of tragic that his own shortcomings have contributed so strongly to the terribly unfortunate circumstances that now prevail.  It is to be hoped, however forlornly, that the terms of this judgment will cause him to reconsider and adapt.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  10 January 2020