Niem & Tong
[2020] FamCA 1013
•8 December 2020
FAMILY COURT OF AUSTRALIA
Niem & Tong [2020] FamCA 1013
File number(s): PAC 3572 of 2014 Judgment of: FOSTER J Date of judgment: 8 December 2020 Catchwords: FAMILY LAW – CHILDREN – undefended hearing – best interests – where appropriate that the matter proceed on an undefended basis – where consideration of applicable principles – orders made that the mother have sole parental responsibility for the children, that the children live with the mother and no order be made for time with the father. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Niem & Tong [2016] FamCA 1089
Niem & Tong [2018] FamCA 1072
Number of paragraphs: 119 Date of hearing: 2 October 2020 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers For the Respondent: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 3572 of 2014 BETWEEN: MS NIEM
Applicant
AND: MR TONG
Respondent
MS WEAVER
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
8 DECEMBER 2020
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the children:
(a)C (dob … 2005); and
(b)D (dob … 2010).
2.The children referred to in Order 1 shall live with the mother.
3.There shall be no Orders for the father’s time in respect of the children referred to in Order 1.
4.All previous parenting orders be discharged.
Notations:
(A) The court notes that Mr B (dob … 2001) is living with the father and is a child over 18 years of age.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Niem & Tong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
These long running parenting proceedings were commenced by the applicant mother by Initiating Application filed 1 August 2014. The proceedings initially related to three children, one of whom, Mr B, born in 2001 (“the eldest son”) has now attained the age of 18 and the proceedings now only relate to the younger two children: C born in 2005 (“the middle child”) and D born in 2010 (“the youngest child”).
The father in the proceedings has recently disengaged from the parenting proceedings with the mother’s application being heard on an undefended basis on 2 October 2020 with reasons for judgment then reserved.
At undefended hearing the mother relied upon:
(a)Her Amended Initiating Application filed 12 September 2016;
(b)Her affidavit filed 29 September 2017; and
(c)Her updating affidavit filed 31 August 2020.
The mother sought orders as set out in a Minute of Order contained within her Case Outline document, in summary, that:
(1)The mother have sole parental responsibility for the children;
(2)The children live with the mother; and
(3)There be no order for the father’s time with the children.
The mother also proposed a notation that the eldest son who is over the age of 18 is living with the father.
The Independent Children’s Lawyer (“ICL”) supported the orders sought by the mother.
Context
The mother who was 45 and the father 52 at the time of hearing are both of Southeast Asian origin.
The parties commenced cohabitation at the time of marriage in 1996 and separated in August 2014 when the father moved out of the former matrimonial home.
Following separation the children lived with the mother and spent time with the father. This live with arrangement remained in place until February 2016 when the father retained the eldest son in his care after the mother slapped the child to the face in disciplining the child. Subsequently in April 2014, the father advised the mother that the middle child had also decided to live with him indefinitely.
The mother then commenced proceedings in August 2014.
These reasons assume familiarity with two earlier interim parenting judgments: Niem & Tong [2016] FamCA 1089 (“the first interim judgment”) and Niem & Tong [2018] FamCA 1072 (“the second interim judgment”). As is detailed in these two interim judgments and set out below, throughout the proceedings there have been significant changes to the children’s living and spend time with arrangements. As will be explained below the most recent change came about after a serious fire occurred at the father’s home while the two older children were living with him in the house. The current living arrangements for the children that flowed from these events are in accordance with the orders that accompanied the second interim judgment that the two younger children live with the mother and the eldest son live with the father.
The parties are also in dispute as to the distribution of their property following the breakdown of their marriage, however, this dispute is ongoing and not the subject of this judgment.
The proceedings
On 14 November 2016 the matter came before the Court for an interim hearing as to parenting and property issues. Both parties were in agreement pertaining to the primary live with arrangements for the older two children with the realm of the dispute relating to the youngest child’s primary residence and the younger two children’s spend time arrangements with the non-resident parent.
On the day of interim hearing a Child Responsive Program Memorandum prepared by a family consultant was released to the parties which addressed many of the assertions made by the parties. The following summary of the Child Responsive Program Memorandum and the parties’ circumstances at the time of the assessment was set out in the first interim judgment:
92.As at the date of the assessment interviews the elder two children had been residing with the father since early 2016. They had not spent time with the mother for some months even though she was available to them. The youngest child was residing with the mother and was spending no time with the father even though he was not, and currently is not, working.
93.Such arrangements reveal what little insight both parents have as to the needs of their children.
94.The parties’ proposals were discussed by the family consultant in the following terms:
…
4.[The mother] proposed, in her Application in a Case filed 12 September 2016, that she hold sole parental responsibility for the children and that the children live with her. [The mother] made no proposal for Final Orders for the children to spend time with [the father]. She seeks that, in the interim, the children spend no time with [the father], until a Single Expert Report has been completed. At interview, [the mother] proposed that the children spend supervised time with [the father] until his mental health has improved.
5.[The father] proposed, in his Application in a Case filed 15 September 2016, that he hold sole parental responsibility for the children and that the children live with him. He further proposed that [the eldest son] spend time with [the mother] in accordance with his wishes and that [the youngest child] spend time with [the mother] each alternate weekend from 9am Saturday to 6pm Sunday. [The father] made no proposal for Final Orders regarding when and if [the middle child] should spend time with [the mother], but said that, in the interim, she should spend no time with her until the release of the Child and Parent Issues Assessment (CPIA). At interview, [the father] said that the children should spend time with [the mother] in accordance with their wishes.
95. The family consultant saw the key issues as:
•The most appropriate arrangements for parental responsibility for the children.
•The most appropriate arrangements for the children to live with and spend time with each parent.
•The parents have given different accounts regarding the history of family violence between them.
•Each parent alleges that the other parent suffers with mental illness.
•Whether or not [the father] continues to abuse prescription medication.
•Allegations [the mother] had organised for the maternal aunt to inappropriately prescribe the drug ‘Duromine’ to [the eldest son].
•The potentially negative impact on the children’s well-being and mental health from exposure to ongoing conflict between their parents.
96.More importantly the younger children were seen, with the family consultant reporting:
As to [the middle child], now 11:
24.[The middle child] said that she likes it that [the mother] is “happy” and that [the mother] loves her. She described [the mother] as “very adventurous” and stated “she kind of goes over the border sometimes. For example, we were in the city and she was drunk and she wanted me to take a sip.” [The middle child] commented [the mother] can be “very judgemental about everybody; she has a conclusion straight away.” [The middle child] claimed that [the mother] spends an inordinate amount of time on the telephone.
25.[The middle child] said that she wants to spend time with [the mother] but appeared confused about what a suitable arrangement may be. She initially said she would see her for dinner “every fourth night” before saying she would prefer weekend time with [the mother] because of her schooling. [The middle child] said that this may cause some difficulties because she has language classes on Saturdays and swimming classes on Sundays.
As to [the youngest child] now 6:
18.[The youngest child] described [the mother] as “both grumpy and kind” although, she is “mostly kind.” He said that she gives him cuddles and kisses and “always brings me to fun places.” [The youngest child] declared of [the mother] “she loves me a lot.”
19.When asked about [the father], [the youngest child] stated, “I’m not sure. I’m getting confused; they both say something bad” (about the other). [The youngest child] later stated that [the father] is “a kind Dad” who “used to be grumpy. My mummy showed me a video; he was saying the ‘F’ word.”
20.[The youngest child] stated that he wants to live with [the mother] but “go to Dad’s for a little while and then come back to my Mum’s house.”
21.[The youngest child] initially said that he is not fearful of either parent but then stated, “Well, I’m a little bit scared of my Daddy. That my Daddy might kill my Mummy.” [The youngest child] said that he really wants his parents to be friends.
22.After the interview, [the youngest child] was observed to be interacting in a playful manner with [the father] and [the mother] in the waiting area.
97. The family consultant addressed the risk issues in detail:
Family Violence
28.There is no history of any Final Apprehended Domestic Violence Order (ADVO) between the parties. Both parties indicated that an Interim ADVO had been put in place by each party to protect them from the other but that each party had withdrawn it.
29.[The mother] claimed that [the father] had been verbally abusive and controlling throughout their relationship. She said he had kicked her on one occasion and had also thrown objects and pushed items off the table in anger. [The mother] said that, whilst sleeping in separate rooms under the same roof, she had woken to find [the father] standing over her in a threatening manner. She further claimed that [the father] had once held the family dog by the neck until it “bubbled at the mouth.” [The mother] stated that she is fearful of [the father].
30.Both parents admitted that they had used physical discipline on the children, including hitting them with a thin, bamboo like cane. Each parent claimed the other parent had hit the children more frequently than them. Each parent claimed they no longer hit the children.
31.[The mother] said that the family had a brief involvement FaCS prior to separation because an unknown person had made a report that [the father] had a “hickey on his neck” and that “[the middle child] had done it to him”. She said that FaCS had been satisfied that nothing untoward had occurred and had taken no further action. [The mother] said she does not believe [the father] has sexually abused [the middle child] but she reported that a notebook in which [the father] had made some explicit sexual remarks had come into [the middle child’s] possession, which she maintains was inappropriate.
32.[The father] denied he had ever been physically violent towards [the mother]. He stated that they had engaged in “a lot of verbal arguments but he maintained, “I’m the one concerned about my safety.” She said that [the mother] had pushed him on one occasion.
Substance Misuse
33.[The mother] reported, and [the father] confirmed, that [the father] had developed a prescription drug addiction, self-administering a range of medications. She said that on 7 July 2014, [the father] overdosed and she had contacted the maternal uncle to supervise him, who then called an ambulance. [The mother] said [the father] had been hospitalised for several days.
34.[The father] claimed he had commenced abusing prescription drugs because of sleeping problems related to his problematic relationship with [the mother] and the stress related to his business. He maintained that, since July 2014, he has ceased prescription drug use, except for a brief relapse in January 2015, after [the mother] refused to allow him to spend time with the children. [The father] reported that he is currently suspended from practising medicine because of his drug use but hopes to have his medical license returned to him.
Mental Health
35.[The mother] said that [the father] had frequently threatened to commit suicide on occasion during their relationship, with the first occasion occurring not long after they had married. She indicated that he would do this in order to control her and the children and cause them to feel sorry for him. She said, for example, that on a holiday he had taken a chair and climbed onto the balcony, threatening to jump off. [The mother] said that this had occurred in front of the children.
36.[The mother] said that [the father] suffers with a “narcissistic personality” and that this view is even held by his psychologist, Mr BB. [The father] claimed that he has made significant changes and that Mr BB is pleased with his progress.
37.[The father] said he believes that [the mother] suffers with “narcissistic personality disorder”. He claimed he has observed the following behaviours in her which would constitute this disorder: “blame shifting”, “gaslighting” “triangulating” “projection” and “always the victim”. He said she had never been formally diagnosed with this condition.
Parental Conflict, Co-parenting Relationship and other Parenting Issues
38.[The mother] and [the father] indicated they have no capacity to communicate or cooperate in a constructive manner at present. Both parents indicated they are involved in a complex property settlement and each claimed the other is seeking an unfair proportion of their assets. [The mother] claimed that [the father] had been unfaithful.
39.[The mother] claimed that [the father] had rarely spent time with the children because of his busy career. She claimed he had often travelled overseas for work and to meet mistresses. [The mother] claimed that [the father] had engaged in a “slow and gradual manipulation with the kids”, causing the two older children to reject her. She claimed that [the father] had told the children she is a “psycho” and further claimed he had written a note to [the middle child] saying that he is “done with his life” in order to garner her sympathy. [The mother] said that [the father] regularly tells the children that she is the cause of his and the children’s problems, including his drug addiction, the fact that the children did not get into selective schools and the fact that they had been removed from their activities post separation. [The mother] said that, in early 2016, [the father] had insisted on taking the children to an “AA meeting” and that, upon their return, the children had felt “sorry for Daddy” and had significantly changed their view of him to a more favourable view and immediately viewed her negatively. [The mother] remarked, “This year and last year, [the father] has taken on a fatherly role he never had and [the middle child] missed that. He uses that to manipulate.” [The mother] maintained that [the youngest child] wants to live with her.
40.[The mother] said that [the eldest son] has experienced long-standing behaviour problems, as well as problems with his weight and health. She said that he had expressed anger towards both parents and has bullied his siblings. [The mother] reported that [the eldest son] has behavioural problems at school, such as hitting other children, and has been suspended on several occasions. She said that [the eldest son] can be “manipulative.” [The mother] reported that it was in this context that she had slapped [the eldest son] in February 2016.
41.[The father] said that [the mother] had organised for the maternal aunt, who is a general practitioner, to prescribe Duromine to [the eldest son] for weight loss. [The father] said that [the mother] did not seek his consent for this type of medication and his research has demonstrated that this was “off label use” and also unethical for the maternal aunt to have treated a family member as a patient. He said that [the eldest son], with his support, has made a complaint to the Health Care Complaints Commission (HCCC) but the maternal aunt has successfully argued that [the eldest son] is currently under pressure due to his parent’s highly conflicted family law matter and thus is not a reliable witness. [The father] claimed that [the eldest son] had been “forced” to take this medication which had caused him a series of adverse reactions, including bone fractures, insomnia, headache, toileting problems, and irritability. [The father] further claimed that, at meetings with the school to discuss [the eldest son’s] problematic behaviour, [the mother] had declined to inform the school that [the eldest son] was taking Duromine. [The father] claimed that [the eldest son’s] behaviour problems at that time may have been caused by the effects of this drug but that “now the school thinks [the eldest son] is a bad kid.”
42.[The father] claimed that [the mother] has spoken negatively about him to the children seeking to cause them to reject him. He further claimed that she had insisted that [the eldest son] provide her with information about him. He said, for example, that [the mother] had witnessed him collapse from his drug use but had stopped to film this before calling an ambulance, later showing this film to [the eldest son] and [the middle child]. He claimed that [the mother] had asked [the eldest son] to steal his passport to check up on his travel history. [The father] claimed that, in contrast, he encourages the children on a daily basis to contact [the mother] but they declined to do so. He stated that in response, he tells them “whatever your decision, it will not reflect well on me.”
98.In evaluation the family consultant expressed concerns that the children were aligned with the parent with whom they live. There is, she opined, no parental trust or respect. Concerns were held for the mental wellbeing of the children if they are subject to ongoing exposure to parental conflict.
99.Concerns were also expressed as to both parents’ physical discipline of the children with a “rod like implement”.
100.It was further recommended that drug testing of the father may be indicated. It is noted that in this regard an ICL was appointed on 14 November 2016 and should be empowered to request testing of both parents. The family consultant recommended that the parents attend the QQ program at RR Group. It was recommended that a Chapter 15 Expert Family and Child Psychiatrist be appointed to report particularly in view of the problematic personality functioning of the parents. These issues will await the input of the ICL.
The first interim judgment was delivered 19 December 2016 and in this judgment the Court opined:
101.It is clear that at least some framework needs to be implemented to avoid ongoing conflict and to restore the younger children’s relationships with both parents and each other as best as can be managed at present
The Court considered that there was nothing to suggest that it would not be in the best interest of the children that both parents should not have equal shared parental responsibility of the children and considered that to do otherwise would be a “recipe for ongoing conflict”. Otherwise, the Court considered in the circumstances of the case that it was not in the children’s best interests for there to be equal time or substantial and significant time arrangement. Interim orders were made on 19 December 2016 that provided:
(1)That the mother and father have equal shared parental responsibility for the children [the eldest son] … [the middle child] … and [the youngest child]…
(2)That the [eldest son] live with the father and spend time with the mother in accordance with his wishes.
(3)That the [middle child] live with the father.
(4)That the [middle child] spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(5)That the [youngest child] live with the mother.
(6)That the [youngest child] spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(7)That the mother and father be and are hereby restrained from physically disciplining the children.
(8)That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
(9)That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
(10)That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
(11)That for the purposes of changeovers where not at school the father as necessary shall deliver the [middle child] to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the [youngest child] to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with [the middle child] or with [the youngest child], as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
At a case management event on 4 April 2017 orders were made by consent appointing a Single Expert Witness in the proceedings. The Expert Report subsequently prepared by the Single Expert was released to the parties on 22 June 2017.
Trial directions as to parenting were made on 24 July 2017 and it was noted that the property aspect of the proceedings were not ready for trial directions.
The proceedings were listed for final hearing and proceeded over five days on 23, 24, 26 and 27 April 2018 and 4 June 2018, the last date on which judgment was reserved. During the period the matter was reserved, the mother filed an Application in a Case seeking to reopen the case as significant events had occurred including a fire to the father’s home while the two older children were in the father’s care. The father sustained significant injuries from the fire.
A background of the proceedings following these events can be gleaned from the second interim judgment delivered 14 December 2018:
4.On 24 August 2018 orders were made by consent granting leave to the mother to reopen her case. The resumption of the final hearing awaits the receipt of an updated Chapter 15 Expert Report and on present indications is likely to be in mid-2019, about six months hence.
5.On 21 August 2018 the mother filed an Application in a Case seeking interim parenting orders pending final determination of parenting. That application was before the Court on 24 August 2018 and on that date was adjourned for judicial case management to 16 November 2018 with directions made for the further conduct of the matter.
6.The interim proceedings as to parenting were heard on 16 November 2018 with judgment reserved …
While the father was hospitalised for three months following the fire, the children resided with their mother. After the father came out of hospital the eldest son contacted him seeking to return to his care but the father was unable to provide suitable accommodation for the eldest son until 30 September 2018. At the time of the second interim hearing the eldest son was living with the father, the two younger children were living with the mother and had not seen the father for some time. The evidence before the Court in relation to the parties’ circumstances at the time of the second interim hearing (as set out in the second interim judgment) relevant to these final proceedings included:
The mother’s evidence
13.Subsequent to interim orders referred to above, the two elder children had continued to live with the father until 28 June 2018.
14.On that day the father was seriously injured in a fire that occurred at his residence. The father was admitted to hospital suffering third degree burns. Subsequent to his admission to hospital, the father suffered a heart attack.
15.The mother had some reservations as to the father’s mental health prior to the fire and more particularly after the fire.
16.Consequently, the older two children moved to reside with the mother and joined the [youngest child] in her home.
17.Subsequent to moving into the mother’s care, the [eldest son] exhibited aberrant behaviour including suicidal ideation. In early July 2018 the mother met with the [eldest son’s] school principal and school counsellor in the context of the child threatening to kill the mother and the [middle child]. The [eldest son] was taken by ambulance to hospital where he was seen by a psychiatrist, not admitted and later permitted to return home with the mother. The [eldest son] was subsequently absent from school for about two months
18.Subsequently, the mother has observed a significant change in the behaviours of both the children [the eldest son] and [the middle child] towards her when compared with their behaviour and attitudes when living with the father. The mother has observed that her daughter is now progressing better at school and appears to be happy and content living in the mother’s household.
19.To the mother’s observation the [eldest son] has adopted much of his father’s behavioural traits in being bullying and aggressive towards the mother and his sister.
20.As at 20 August 2018 the [eldest son] had not been permitted to return to school although he appears to have had settled into the mother’s household.
21.On 21 August 2018 the [middle child] told the mother that “daddy said he was going to hang himself in front of the house if I don’t live with him”.
22.On 20 September 2018 the mother received a text message from the father informing her that he would be discharged from hospital soon and he wished previous arrangements in relation to the children to be resumed. Subsequently, the mother received a communication from the father indicating that his residential address would be at the II Hotel at Suburb JJ.
23.The father was discharged from hospital on 20 September 2018 on which date the mother was informed by the father’s solicitor “my client will reassess his position where the children are concerned. Suffice to say, I will provide you with prior written notice of those intentions and I confirm that my client will not take any unilateral actions with the children without first providing you with written notice”. It turns out such was an empty assurance.
24.On 29 September the mother returned home to find the father’s car out the front of her property. She returned a short while later to find the car gone but observed that the father’s belongings that were packed at the back of her house had been removed together with the children’s pet cat and dog. This was distressing to the two younger children who were with the mother.
25.On 30 September 2018 the [eldest son] told the mother “I’m going to live with dad”. With that she observed the father at the front of the premises and waiting for the child and his belongings. They both then left the property. Subsequently, the mother has had no contact with the [eldest son].
The father’s evidence
26.The father confirms the circumstances of the fire on 28 June 2018. He sustained burns to about 48 per cent of his body. The father was placed in an induced coma not gaining consciousness again until early July. After intensive treatment over a period of about three months the father was discharged on 20 September 2018.
…
29.The father is aware of the [eldest son’s] mental health issues with the child having said to him “I made a few comments at school that made some people concerned. They think I’m hearing voices and that I want to kill myself. I did not mean what I said I was just acting out because I was upset over your accident and I am pissed off that we all have to be forced to live with mum now.”
…
33.He asserts that his collection of the [eldest son] from the mother’s home was as a consequence of the child’s expressed wishes.
…
The objective documents
37.Documents produced on subpoena by CC School attended by the [middle child] reveal that in 2018 whilst in the care of the father until the date of the fire on 28 June 2018 the [middle child] missed 42 mostly whole or partial days of school. Such an attendance record is appalling. After coming into the mother’s care the child has missed one day of school and six partial days.
38.Documents produced by the Department of Family and Community Services reveal the engagement of that Department subsequent to the fire. It is readily apparent that some notifications to the Department have been precipitated by the mother, it appears, out of her concern that it was the father who set the fire. That circumstance no longer appears to be the case.
The Independent Children’s Lawyer and submissions
39.The Independent Children’s Lawyer was of the view that in relation to [the youngest child] that the father should have supervised time. The Independent Children’s Lawyer informed the Court that the [eldest son] was now attending FF Group for therapeutic intervention.
40.There are significant historical allegations as to both parents seeking to alienate the children one against the other. Such seems to be the case in relation to the eldest child subsequent to the father’s release from hospital.
41.The Independent Children’s Lawyer considered it somewhat problematic in relation to the [middle child] now 13 years of age who does not wish to have contact with the father. It appears that the child has settled well into the mother’s household and is now appropriately attending school.
42.Counsel for the mother relied upon the mother’s evidence as to the wishes of the [middle child] and sought that no order be made in relation to her time with the father. Otherwise, the mother remains concerned as to the father’s physical and mental health following the traumatic circumstances of the fire and his hospitalisation. That concern overshadows her view as to the [youngest child] spending unsupervised time with the father.
43.The Single Expert Report of Dr HH dated 5 June 2017 (Exh “C”) is significantly critical of the father, see at [144], [149], [153] in particular the following:
The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his deregistration as a medical practitioner …
He will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.
44.There are significant concerns in circumstances where the [eldest son] had settled reasonably well into the mother’s household but subsequent to ongoing contact with the father, the father manufactured a circumstance with the [eldest son] where he without notice to the mother in effect secreted the [eldest son] back into his full-time care. Subsequently, the [eldest son] has had no contact with the mother. It is readily apparent that the father has again facilitated the child becoming aligned with him.
45.Counsel for the father refers to the mother’s evidence at trial where she did not oppose an order that the [youngest child] have regular time with the father. Such a circumstance was, of course, prior to the traumatic events of late June 2018.
46.It was, otherwise, conceded by counsel for the father that the express wishes of the [middle child] were a real impasse in relation to making an order in respect of [the middle child] for time with the father.
The second interim judgment was delivered 14 December 2018 with further interim orders made (discharging the previous interim orders):
(2)That the mother have sole parental responsibility for the [middle child]… and [youngest child]...
(3)That the [middle child] and [youngest child] live with the mother.
(4)That the [middle child] spend time with the father in accordance with her wishes.
(5)That the [youngest child] spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the [youngest child] at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:
(a)In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.
(b)The mother must deliver the [youngest child] to and collect the [youngest child] from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.
(c)If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.
On 19 December 2018 a further expert report was released to the parties.
The father made an application for disqualification filed with the Court 17 May 2019 which was heard by the Court on 16 July 2019 and judgment reserved. On 15 August 2019 judgment was delivered and orders made dismissing the application for disqualification.
There was some delay in the progress of the matter thereafter as the father appealed the Court’s determination not to disqualify itself from hearing the matter. The father’s appeal was later dismissed by the Full Court and the matter was set down for judicial case management on 16 April 2020 on which date there was no appearance by or on behalf of the father. The matter was adjourned with an order that in default of there being an appearance by the father, orders and directions would be made to facilitate the final parenting hearing proceeding on an undefended basis.
The father attended on the adjourned date (14 May 2020) but was self-represented, his solicitor having withdrawn from the proceedings. On this date it was ordered that the part heard proceedings be listed for a three day final hearing in November and that section 102NA of the Family Law Act 1975 (Cth) (“the Act”) would apply in the proceedings such that notations were made to facilitate the appointment of a lawyer for the father with a future case management date given to progress the matter.
On the adjourned date (17 July 2020) there was no appearance by the father so directions were made that the mother’s application for final parenting orders be adjourned for an undefended hearing.
On 2 October 2020, the date listed for undefended hearing, there was again no appearance by the father, and in his absence the matter proceeded, orders were made and reasons for judgment reserved.
Procedural Fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2)If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Further, rule 11.02(2)(c) of the Rules provides:
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c) determine the case as if it were undefended.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Act:
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed …
As set out above, the father failed to attend several of the most recent court events causing further delay to these already extremely longstanding proceedings. In light of the father’s obvious disengagement from the parenting proceedings and having regard to the fact that these proceedings have been ongoing for over six years, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis in the father’s absence on the date listed for undefended hearing.
The expert’s evidence: the 5 June 2017 Report
In May 2017 the parties and children attended upon an expert for the preparation of a Single Expert Report. The expert also interviewed the principal of the two oldest children’s school and the family’s general practitioner for the preparation of the Expert Report.
The mother described the father having perpetrated significant family violence during the relationship, including being cruel to the family dog by hanging it from a clothes line, spitting in her face, throwing food at her and she described being deprived of sleep during the father’s angry outbursts.
The mother acknowledged having used inappropriate discipline by slapping the eldest son on a couple of occasions but denied using corporal punishment on an ongoing basis.
The father when interviewed reported that he had been deregistered by the Medical Tribunal in late 2016 for misconduct and although was eligible to reapply for registration in late 2017, was told that there may be a delay of up to three years in processing such an application. The father also acknowledged that there were outstanding complaints against him under investigation. He provided a detailed account of his misuse of prescription medication which had resulted in his deregistration.
The father readily acknowledged paying for high-class prostitutes and having established extra-marital relationships during his relationship with the mother. He told the expert that “as a doctor, I manipulate my power … Was that a crime? To be intimate with another woman”.
At the time of the first interview the eldest son and middle child were living with the father and the youngest child was living with the mother. When asked about her preference for living arrangements, the middle child reported that she would “want to see my Dad more than my Mum”. The youngest child reported that there was nothing he did not like about living with his mother.
The principal of the two oldest children’s school indicated that the middle child had unacceptable attendance at school, having had six days of absence, three early leaves and three late arrivals, which she described as atypical for a year 7 student. The eldest son’s attendance was also of concern but more troubling was his attitude at school. The eldest son was described as having an “egocentric manner”. The principal also reported that the school had found the father to be extremely demanding of the school’s time and that he had been self-preoccupied and repeatedly sent florid emails to the school.
The expert observed that the two older children’s exposure to parental conflict and extensive discussion with their father had resulted in the older children becoming strongly aligned with their father’s position in the context of the parental conflict and they held their mother responsible for the parental difficulties. The older son, in particular, was critical of the mother’s actions.
Of the parties’ relationship dynamic, the expert opined:
The parents’ longstanding conflictual relationship was characterised by a lack of mutual respect, trust and goodwill. There was a lack of respectful communication and problem solving regarding parenting matters. Each justified their actions based on the behaviour of the other parent. This had been a source of chronic stress for the older children, resulting in their inability to maintain a consistent, loving, respectful relationship with each of their parents. In this context, they had become aligned with their father, who had presented himself as the victim in his relationship with the mother. Thus, although the father acknowledged his misdemeanours to the children, he did so in a manner which rendered him the victim rather than the perpetrator…
The expert was significantly critical of the father, in particular, said the following in the first Expert Report:
…In my opinion, the father fulfilled the criteria for a Narcissistic Personality Disorder….His modelling and aggressive and controlling behaviour has been a profound influence on [the eldest son’s] personality development and was at the core of his behavioural problems and hostility towards his mother.
…
The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his deregistration as a medical practitioner … He, however, will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.
…
In relation to the eldest son, the expert opined:
[The eldest son] showed signs of evolving Narcissistic Personality traits. This was evidence in his interactions with his mother, teachers and the report writer. His younger sister expressed concern about his emotional state and behaviour, fearing that he was showing signs of Depression. This was inconsistent with his self report and the father’s account …
The expert recommended in this first Expert Report that the parties have joint parental responsibility and that the younger two children have their residential and contact arrangements brought into alignment whereby they both primarily reside in their mother’s care. The expert considered that it would be beneficial for the eldest son to join them but the report writer was mindful of this child’s predictable resistance to the establishment of such residential arrangements which are contrary to the eldest son’s wishes. The expert also recommended that the father remain engaged in his then current therapy.
The expert’s evidence: the 11 December 2018 Report
The parties and children were interviewed again towards the end of 2018 by the expert for a Supplementary Expert Report which was released to the parties in December 2018.
The father told the expert that on the night of the fire he had been cooking at about 5.30 am in the morning while the children had been asleep in their rooms. He described feeling heavy chest pain, dizziness and needed fresh air. The father told the expert the last thing he remembered was rushing outside, and then he awoke in an intensive care unit several weeks later. He told the expert that he had no idea what happened regarding the house fire. The father told the expert that he had suffered from chest pain and a heart attack, and had collapsed prior to the house fire.
When the father was questioned by the expert as to the possibility of the fire being non-accidental, the father responded that there was no reason for this to be considered, and it is recorded in the Expert Report that a police investigation failed to identify anything untoward. The father also told the expert that a week prior to the fire his mother had died and she had been an important part of his life.
The expert recorded the following in relation to the father’s mental health:
[The father’s] GP had implemented a Mental Health Care Plan (MHCP) referring him back to the care of …his addiction psychiatrist. An appointment had been made for 5 December 2018 which conflicted with the current assessment. He had rescheduled for 2019. [The father] was awaiting her recommendation as to whether he required further psychological intervention. He had discontinued psychotherapy with…his treating psychologist, 12 months ago as he was in the city. He had been told that further intervention was no longer required as [the father] had recovered well. He later added that he had sought mental health support on campus at [a university].
[The father] described reactive depressed mood. He currently was “quite down” with associated low energy. He had engaged in positive thinking and was currently reading Grow and Reach by Pauline Hugh. He was eating and sleeping well. He denied that he was suicidal. He had not required antidepressant medication. He maintained his ongoing medical treatment and cardiology review.
When asked about his children’s mental health issues, the father told the expert that the eldest son was “just a very angry teenager” and the only issue he could identify was the eldest son’s attitude towards the mother.
In relation to the fire, the eldest son described waking up at about 4.00 am to hear screaming in the house, boots stomping, foreign voices, his sister screaming and a crackling sound which he later learned to be the sound of his father’s possessions burning. He described opening and crawling out through his bedroom window after opening his bedroom door and smoke filling his room.
The two younger children were observed to have a “delightful rapport” with the mother in the waiting room. The middle child was 13 and the youngest child was eight at the time of the interview. The middle child indicated that a lot had happened over the previous 18 months and said that “the biggest thing was my Dad’s rental residence burned down because of a fire. We were there in the house, my Dad, [the eldest son] and me. It was about 4.00 am in the morning. The house burned down out of nowhere. My Dad got burned and went to hospital. And I moved in with my Mum”.
The middle child described how since the fire she kept feeling the experience “deep down”, had experienced nightmares and then attended counselling to let it out.
The middle child described how, while she was living with the father, she “had to be very careful always not to say the wrong things because my Dad would get very mad at me if I didn’t agree with him”. The middle child said that she had always wanted to go and live with the mother but that the father, who had bought her a dog, had threatened to take the dog to the RSPCA to put him down. The middle child said that she was “happy that the fire happened because if not I would not be happy living with my Mum as I would be living with my Dad in not good living conditions”.
When asked about seeing her father, the middle child said that she would “rather not” see her father as he “has a personality that I fear”, said that he was “two-faced” and that she was “scared of him turning up and showing fake love to me. When he cuddles and kisses me, it doesn’t feel warm (like with Mum). It just feels empty”.
The middle child described the eldest son as “an exact replica of my Dad…He screams and shouts at me. And he calls me lots of names – bitch, fucked, whore, fuck-a-dick, worthless piece of shit, and a slut … It really hurts me a lot”.
The father was observed with the children as part of the preparation for the expert report. The father explained that he now lived next to the middle child’s school and invited her to come and visit anytime to which the middle child responded “I can’t guarantee that. I can’t guarantee that I’ll come”. The middle child later said to the father, crying as she said it: “I don’t want to see you. I’ll never forgive you. I don’t love you anymore”.
The middle child asked the father to stop asking the mother for money as she had “seen her bank account and she doesn’t have any money”. She continued that the she wanted the father to “stop fighting for [her] permanently” as she could see him anytime she wanted to.
When the middle child was asked if she had threatened suicide, she responded that she “was being a drama queen, a massive drama queen, because my Mum didn’t want me to go on my laptop”. She indicated that sometimes she got thoughts of being depressed but doesn’t harm herself. When the middle child was asked about whether the father had threatened suicide, she responded “Yep. He always threatened to hang himself on the front porch. It happened regularly. Like a routine”.
The mother, during her interview with the expert, expressed concerns about the children’s mental health, saying that all the children had expressed suicidal thoughts. The mother told the expert that the eldest son had threatened to kill himself with a knife and had told her that his father wanted to kill himself. The mother played the expert a recording on her phone of an exchange where the child had expressed distress after ripping a gearstick from the car, where he philosophised about the meaninglessness of life and stated that while he had not attempted suicide yet, he had laid a knife on his bed. During the recording the eldest son also told the mother about the father’s suicidality. The mother responded that the children needed counselling.
The mother also told the expert that she had a recording of the middle child saying that the father had repeatedly threatened to hang himself.
The mother discussed with the expert her fears for the children’s wellbeing in the father’s care and desire to protect them but said she supported them maintaining their relationship with the father. She also said that she remained concerned about the father’s undermining behaviour, alleging that he had told the eldest son while he was being hospitalised after the fire that the mother “destroyed [his] childhood”.
The mother told the expert that the children were very forgiving of their father, much like herself, but that the father portrayed himself as the victim, with the eldest son feeling responsible for caring for the father.
At the time of the Expert Report the mother proposed that the children spend supervised time with the father, considering that this needed to be safe because she was unable to trust that he would not brainwash them, feeling concerned that this would be damaging to their mental health. The mother expressed concern that the father lacked friends and support, and gave the example that he required his solicitor to come and pick him up from hospital. Associated with this she expressed concern about his level of depression and suicidality, given the recent loss of the paternal grandmother.
During the observation of the mother and the eldest son, the eldest son continued to blame the mother for him having missed school and berated her for, amongst other things, lacking an education and not feeling motherly love.
In relation to the fire, the mother told the expert that she struggled to make sense of the father’s explanation of having a heart attack, leaving the house and collapsing outside in the backyard rather than in the house. She considered that he had been depressed, his mother had recently died and the financial issues before the Family Court could raise the possibility of a further suicide attempt.
The father’s medical records were reviewed by the expert. The expert recorded that the father’s Narcissistic Personality Disorder was evidenced during his admission to hospital after the fire as evidenced by his insistence on being treated as a “special patient”.
The Expert Report records extremely concerning information regarding the eldest son from review of school records, where his behaviour is described as “suggestive of a hypomanic presentation”. Concern regarding this child’s behaviour does not need to be explored to any great extent given he is no longer a subject child of the proceedings but it suffices to say that his behaviour is concerning which is compounded by his extreme alignment with the father.
The expert recommended that the mother have sole parental responsibility for the children and for the younger children to maintain their primary residence in the mother’s household. He further recommended that the youngest child could have unsupervised contact with the father on alternate weekends and that the middle child should be encouraged but not ordered to attend. He further recommended that all of the family members should maintain current therapeutic intervention and the children should attend a single GP.
The mother’s evidence: circumstances since the second interim orders
The mother says that the middle child and youngest child, in year 10 and year 4 respectively, are doing well at school and she is pleased with their progress.
The mother asserts that the middle child is estranged from the father and from time to time suffers nightmares and flashbacks from when she was living with the father. The middle child is also estranged from the eldest son and she is scared of him.
The youngest child spent supervised time with the father at a contact centre on a number of occasions throughout 2019 and early 2020, however, the service was suspended in March 2020 for a period due to the COVID-19 virus. It seems that time resumed between the father and child at some point thereafter but was short lived as in August 2020 the contact centre advised the mother that the father’s time had been suspended due to his lack of attendance. The youngest child has not seen the father since May 2020. The mother asserts that this child had said to her on a number of occasions that he hates going to the centre and did not want to see the father.
The mother holds concern that the father’s expression of suicidal thoughts to the children in the past has had an impact on the youngest child whom she says has expressed suicidal ideations. She says that she arranged for the youngest child to see a counsellor and since this time he has not expressed these thoughts.
The mother details an incident said to have occurred on 21 May 2020 at around 12.30 am and says she received a call from the eldest son who was distressed. The eldest son said words to the effect:
“Dad’s just tried to kill himself by taking a bunch of sleeping pills. He said he wants to kill you Mum, [the middle child] and [the youngest child]. I don’t want to live with him anymore can you come and get me?”
The mother recounts that she contacted the hospital who verified that the father had been admitted so she went and collected the eldest son, being the first time the mother had seen the eldest son since he recommenced living with the father after the fire. When the father was discharged from hospital a few days later the eldest son returned to live with him.
After the eldest son told her of the threats made by the father the mother attended her local police station to obtain an Apprehended Violence Order. The eldest son was interviewed by police but it is the mother’s understanding that he did not repeat to police the details he had told her and rather was protective of the father. As a result police did not apply for a Provisional Apprehended Violence Order for the mother’s protection from the father.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The making of orders least likely to lead to the institution of further proceedings is an extremely weighty consideration in this matter, given the proceedings have been on foot for over six years. During this time the children have gone through interviews with a family consultant, two sets of interviews with the expert and are likely to have also met with the ICL. The Court is of the view that the orders least likely to lead to the further institution of proceedings are those sought by the mother given the father’s total disengagement.
A consideration of the s 60CC factors supports the making of orders as sought by the mother and supported by the ICL as being in the best interests of the children.
Orders will be made accordingly.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 8 December 2020
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