Otieno & Mwangi
[2022] FedCFamC2F 469
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otieno & Mwangi [2022] FedCFamC2F 469
File number(s): DGC 2544 of 2013 Judgment of: JUDGE BURCHARDT Date of judgment: 20 April 2022 Catchwords: FAMILY LAW – Parenting dispute about best interests of 14 year old girl and 12 year old boy – father seeking eight/six regime in his favour – three court appointed experts expressing concerns about the father’s mental health if he refuses ongoing treatment – father denying all mental health difficulties and refusing to undertake treatment – family consultant initially recommending nine/five regime in favour of the mother but changing this to daytime only after being made aware of the father’s position – orders made as sought by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 149 Date of last submission/s: 8 April 2022 Date of hearing: 17–18 March 2022 Place: Dandenong Counsel for the Applicant: Mr Chislett and Mr Thomas Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Ms Dwyer Solicitor for the Respondent: Alfred P Mayuka Counsel for the Independent Children's Lawyer: Ms Agresta Solicitor for the Independent Children's Lawyer: Ce Family Lawyers ORDERS
DGC 2544 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OTIENO
Applicant
AND: MS MWANGI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
20 APRIL 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children X born 2008 and Y born 2010 (“the children”).
3.The children live with the mother.
4.In relation to the mother’s sole parental responsibility, the mother must inform the father in writing of the decision that she has made.
5.The mother is authorised and permitted to apply for and receive an Australian passport for the children X born 2008 and Y born 2010 without first obtaining the written consent of the other parent.
6.The children X born 2008 and Y born 2010 be permitted to depart the Commonwealth of Australia.
7.The children spend time and communicate with the father as follows:
(a)On alternate weekends from 8.00 am-7.00 pm on Saturday commencing on Saturday 23 April 2022;
Special Days
(b)For Father’s Day and the father’s birthday from 8.00 am-8.00 pm;
(c)For the children’s birthday with the father in even years for the morning from 8.00 am-3.30 pm and the mother from 3.30 pm-8.00 pm;
(d)Subject to school commitments/attendance, the children’s birthday with the mother in odd years for the morning from 8.00 am-3.30 pm and the father from 3.30 pm-8.00 pm;
(e)For Easter from 8.00 am-8.00 pm on one day over the Easter long weekend subject to the availability of Ms B (or other agreed person);
(f)For Christmas Day with the father in even years for the morning from 8.00 am-3.30 pm and in odd years from 3.30 pm-8.00 pm.
Additional contact and communication
(g)Otherwise the children spend time with the parents as may be agreed in writing between the parents from time to time.
8.The children communicate by telephone or video call with the father at any reasonable time as instigated by the children or either of them.
9.During the time the children spend with their father:
(a)The children be permitted to telephone their mother; and
(b)The father do all things necessary to facilitate any telephone contact the children may reasonably request with their mother.
Substantial attendance
10.The first 3 periods of spent between the children and the father occur in the substantial attendance of Ms B, Mr C or such other person as agreed in writing between the parents.
Changeover
11.All changeovers occur at an agreed location between the mother and Ms B (or other agreed person) for the first 3 visits, and following this, at a location agreed between the mother and father.
Education & Extracurricular
12.Both parents be at liberty to attend the children’s school and extracurricular activities to which parents are usually invited.
13.Both parents be at liberty to receive copies of the children’s school and extracurricular notices that parents usually receive.
14.Both parents do all things and sign all documents necessary to support X’s efforts to transfer to D School.
Contact between the parents
15.The parties keep the other advised of their current residential address, email address and contact telephone numbers.
16.All communication between the parents be polite and child focussed.
Restraints
17.Each parent be restrained by injunction from:
(a)Discussing the court proceedings between the parents with the children or in their hearing or presence;
(b)Allowing access to any court documents to the children or leaving the documents in the children’s presence;
(c)Speaking disparagingly, negatively or making allegations of a negative nature about the other parent, their family or their partner, to the children or in their hearing or presence;
(d)Encouraging the children to record conversations, investigate the other parent’s mobile phone, personal email, personal accounts and computer or otherwise encouraging the children to look through the parent’s personal papers, drawers or other personal matters;
(e)Involving the children in adult issues, including discussions on the nature of the other parent’s personal and/or intimate sexual relationships.
18.The Father be restrained by injunction from consuming alcohol or being affected by alcohol during his time with the children.
Counselling
19.The parents do all things necessary for Y to continue to attend counselling with Mr E at F Service as recommended by Mr E, or such other counsellor as may be recommended by Mr E.
20.The parents do all things necessary for the father and Y to immediately commence therapy with Mr E with the intention to support the relationship between Y and the father, and the father and Y attend therapy as recommended by Mr E.
21.The parents attend joint parenting counselling with Mr E or such other appropriately qualified practitioner at F Service as recommended by Mr E for not less than 6 months, to address parenting communication and expectations of each other in relation their parenting.
22.The parents provide the following to Mr E:
(a)The Family Report of Ms G dated 13 March 2022;
(b)A copy of this Order.
Miscellaneous
23.The appointment of the Independent Children’s Lawyer be discharged.
24.The matter be removed from the pending cases list and all extant applications, including any applications as to property, be dismissed.
25.Certify for Counsel.
NOTATION
A.It is intended that the mother will continue to facilitate the relationship between the children and the extended paternal family.
B.It is intended that the father be permitted to attend the children’s sporting activities as part of his time with the children as provided for in this Order, provided that he does not approach the mother if she is also in attendance.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Otieno & Mwangi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting and property dispute. So far as parenting is concerned, we are endeavouring to advance the best interests of X, born 2008; and Y, born 2010. The applicant father seeks that the children live with him on an eight/six per fortnight basis, whereas the mother's position as articulated in her amended application in a case filed 29 August 2021 is that the father have supervised time in relatively small tranches.
It should be noted that orders were made on 23 December 2020 for a nine/five regime in the mother's favour, which went well, or at least unexceptionally, until 23 July 2021, when an incident took place which stands at the evidentiary centre of the parenting dispute. Y has not spent time with the father since then, and X has spent some time.
So far as property is concerned, the father seeks an adjournment of the hearing and compliance with orders made by consent in February 2020 for valuations and a mediation, whereas the mother seeks that all extant property applications be dismissed.
For the reasons that follow, I propose to make the orders sought by the Independent Children's Lawyer in respect of parenting, and I propose summarily to dismiss all property applications.
AFFIDAVITS
This is a box file with no less than six different individual files within it and some 117 individual items filed, let alone without the addition of the family reports and subpoenaed material. This matter has been in the court on an almost continuous basis since 2013. The parties have filed huge tranches of material. I will return to the matters filed in respect of property in some detail, but it is fair to say that over the years, the parties have left little unsaid that might be said by way of criticism of one another. A recurring theme is the mother's allegations of family violence interrelated with excessive alcohol consumption and psychiatric disturbance on the father's part, all vehemently denied. Although the central factual dispute in this current tranche of litigation is the events that took place in July 2021, neither party has gone into detail on affidavit as to the events of that evening. It is appropriate perhaps to set out a short background which is in itself uncontroversial.
AGREED, OR NOT SIGNIFICANTLY DISPUTED, FACTS
The father was born in 1969. The mother was born in 1972. She came to Australia from Country H, from where they both originate, on a spousal visa in 2002, and they married in 2002 in Suburb J. They both used to work as healthcare professionals, although as will be seen, the father no longer does.
They separated (the date of separation was a matter in issue between them in earlier tranches of litigation), but on any view of the matter, a divorce order was made on 20 December 2013 by Judge Phipps. The file does not reveal his Honour's reasons for judgment, but given that the mother has said that they separated under one roof in 2011 and the father said he had no knowledge of separation until the divorce application was served on him in mid-2013, it seems more probable than otherwise that, to the extent there was any argument, Judge Phipps was persuaded of the mother's version of events.
Following not inconsiderable numbers of court orders and applications, as earlier indicated, orders were made on 23 December 2020 for unsupervised time which appeared to go well. These orders were made notwithstanding the father's historical record of driving offence difficulties including a suspension in 2009 and a further suspension of his driving licence in 2013.
At this stage, it is appropriate to turn to the independent expert evidence.
THE MOST RECENT REPORT FAMILY REPORT OF MS G
The report dated 13 March 2022 followed interviews with the parents and children in February 2022. Ms G commenced by noting the ages of the parties, the fact that X attends K School and Y, L School (paragraph 5). The report noted that they live with their mother in the former family home in Suburb N and that the mother is employed on a permanent part-time basis with the government as a healthcare professional (paragraph 6) and the father resigned his government position in 2020 and is seeking further employment (paragraph 7). The report noted the previous orders made, and at paragraph 9:
However, due to an incident in July 2021 when police became involved while the children were in [Mr Otieno]’s care, since that time, only [X] continued to spend time with her father. [Y] reportedly refused to attend.
The report noted the parents' positions and the history of the dispute since the orders made on 14 April 2021. The report noted the release of psychiatric reports as to the father, and at paragraph 24:
[Dr M] supported the diagnosis of bipolar disorder for [Mr Otieno] but considered that with ongoing monitoring of medication and his mood, [Mr Otieno] did not pose a protective risk with regard to parenting, including unsupervised caregiving.
Dr M nonetheless expressed concern that Mr Otieno was involving the children inappropriately in adult and court issues and recommended that Mr Otieno continue to attend parenting-focused counselling.
Following an inquiry made by the Independent Children's Lawyer to Mr Otieno's treating psychiatrist, Dr O, the report noted at paragraph 27:
[Dr O] responded on 4th March 2022, that inter alia [Mr Otieno] denied the claims by police of ‘argumentative and belligerent’ behaviour and particularly of being alcohol affected during the July 2021 incident; that [Mr Otieno] was not taking any medication at the time of the incident; that the alleged behaviour could not be explained by any psychiatric illness; that [Mr Otieno] does not present with symptoms of a psychiatric illness; that [Mr Otieno] has been ‘very compliant’ with [Dr O]’s recommendations; and that [Mr Otieno] has likely acquired some psychological resilience in the face of the ongoing stressors of litigation, unemployment and financial difficulties.
The report noted a report from Dr P to which I shall come in more detail (paragraph 28), and that Dr P had indicated to Ms G that he considered that the father should continue attending psychological therapy to support his parenting capacity (paragraph 29).
At interview, the father sought that the nine-five regime be reinstated and noted that the father was concerned that the children had been exposed to the mother's negative views of him, noting his assertion that the children had a strong relationship with him. The mother's position was that she was supportive of the children spending time in the father's care, but he needed to get fit and to protect the children, including medication for X (paragraph 33).
I note that at paragraph 44:
[X] and [Y] continue to demonstrate a strong bond with their mother, but [X] in particular appears to have a more conflictual relationship with her mother now. [Ms Mwangi] referred to [X] having altercations with her about issues such as phone use and bullying of [Y].
Paragraph 45:
In the assessment for this updated report, [Mr Otieno] presented again as competent, speaking again about the children’s needs in detail. [Mr Otieno] presented calm, rational and coherent, but at times providing excessive detail [as noted by [Dr M] in December 2020].
The children presented with more polarised views about living arrangements, and X wanted to go back to the previous orders formerly in place (paragraph 48). At paragraph 50:
For the interview this time, [Y] said that he was ‘scared to go to Dad’s place’ because ‘the last time, he was screaming at me and cursing us and drinking a lot most of the time …’ [Y] went on, saying inter alia that ‘[X] wasn’t scared because she gets what she wants … she bullies me …’
Y was tearful when he spoke of these difficulties (paragraph 51).
The report noted that in the four years since the first family report, the parents have not been able to maintain a cooperative parenting relationship (paragraph 67), noting they could not even agree about Y's attendance at a school camp (something that led to court orders in the ultimate). The report noted that the children have strong relationship with members of both extended families, particularly Ms B’s family (paragraph 72). I note that at paragraph 89:
[Dr P] has informed the report writer that he does not consider [Mr Otieno] as a protective parenting risk. Instead, [Dr P] indicated that [Mr Otieno] presents with personality traits that at times can be misperceived as representing mental illness.
Paragraphs 92-95:
However, it seems that from April 2021 when the children commenced spending overnight time with [Mr Otieno], disputes between the parents escalated. It is likely that [Mr Otieno]'s contribution to the escalation was defensiveness that led to denigration of [Ms Mwangi] and involvement of the children in the adult issues.
It is also likely that the anxiety about overnight time, particularly for [Y], was not managed consistently supportively by [Mr Otieno], who, it seems, blamed [Ms Mwangi] for 'building it up' for [Y].
While the family dynamics of alignment of each of the children with a parent – [X] with her father and [Y] with his mother - that is apparent in this assessment, has likely resulted in some of the conflict between [Mr Otieno] and [Ms Mwangi], this pattern has only emerged as the children have reached adolescence and [Mr Otieno]'s role has been expanded by the Court ordered living arrangements.
It was notable in the assessment for the updated report in November 2020 that [Y] particularly, was enthusiastically engaged with his father and that [Mr Otieno] was responsive and appropriate. [Mr Otieno] must have the opportunity to reinforce that bond with [Y] now, particularly as he is reaching adolescence and already having difficulty managing emotions and regulating behaviour.
The report went on to recommend joint therapy, possibly with Mr E from whom X had already disengaged. The report noted it was crucial the parents worked together to repair the parenting relationship (paragraph 98). There was also a recommendation that the father engage with a psychiatrist and attend upon a regular basis, or otherwise a forensic psychologist such as Mr Q, the father's treating psychologist (paragraph 99). The report also recommended that the parents undertake time-limited joint parenting counselling to address their communication and expectations of each other (paragraph 102). Ultimately, the report made the following recommendations:
127.[X] and [Y] live with their mother [Ms Mwangi].
128.The children spend alternate weekends between Friday and Monday and alternate Wednesday to Friday during school time with their father [Mr Otieno], along with half school holidays, either in block periods or on a week about basis.
129.Telephone or other contact for the children with the non-resident parent should be flexible but at least once on each occasion.
130.The above arrangement commences before Term 2 of the 2022 school year.
131.[Mr Otieno] continues to attend all treating professionals. He engages with another psychiatrist or forensic psychologist [Mr Q]… and attends individual psychological therapy for at least twelve months. If appropriate [Mr Otieno] and [Y] attend joint counselling with [Mr Q].
132.[Mr Otieno] does not consume alcohol while the children are in his care.
133.[Y] continues to attend counselling with [Mr E] and [Mr Otieno] also attends.
134.[Mr Otieno] and [Ms Mwangi] attend time limited joint parenting counselling with either [Mr E] or an appropriate professional at [F Service].
135.[Mr Otieno] and [Ms Mwangi] are actively involved in support [X]'s efforts to transfer to [D School].
It should be noted that I have of course read the various other reports, including those of Dr M and Dr O, but I think they are sufficiently and adequately traversed in the extracts I have set out above from Ms G's report. It is appropriate to turn in more detail to the report of Dr P.
THE REPORT OF DR P
Dr P's report dated 17 March 2022 was obviously produced during the actual currency of the trial itself. It should be noted that no applications for adjournment or other assertions of prejudice were raised. Dr P's CV and list of publications is indeed impressive, and we will turn to what I made of his oral evidence in due course. I note that his report was based on a 278-minute interview and psychological testing session with Mr Otieno amongst other interviews, which included Ms G the family report writer and Dr O, (Mr Otieno's treating psychiatrist, only very recently retired). I have of course had regard to the entirety of the report. Some of the particularly relevant findings made include at paragraph 66, which considering the Personality Assessment Inventory:
Despite the level of non-effortful defensiveness noted above, there are some areas where [Mr Otieno]’s responses suggested problems of greater intensity than is typical of similarly defensive respondents. As such, they may suggest areas of concern. These areas include: suspiciousness; persecution; bitterness; failures in close relationships; elevated mood; inflated self-esteem; low frustration tolerance; preoccupation with physical functioning; and compulsiveness or rigidity.
Paragraph 69:
[Mr Otieno]’s PAI responses suggested certain problems potentially associated with elevated and variable mood. He may be seen as active, outgoing, ambitious, and self-confident; and may also be rather impatient and hostile, with a quick temper. He is likely to present as an optimistic and perhaps driven type of individual. The content of his thinking is likely marked by an element of expansiveness and self-confidence with a focus on strategies for success or achievement. There may also be some inflated self-esteem.
At paragraph 76:
In summary, [Mr Otieno]’s PAI results were marked by a degree of non-effortful positive distortion that reflected poor self-insight and self-deception. Nonetheless, the results still suggested some difficulties with suspiciousness and persecution, potentially elevated mood, grandiosity, and a history of unstable relationships. In addition, there were some areas in which [Mr Otieno]’s responses suggested issues of a considerably higher magnitude than similarly defensive respondents (although not necessarily problematic). These included suspiciousness, persecution, bitterness, failures in close relationships, elevated and variable mood, inflated self-esteem, low frustration tolerance, preoccupation with physical functioning, and compulsiveness or rigidity.
Under the PCL:SV testing, the report noted at paragraph 78:
Accordingly, the results of the PCL:SV indicated that while [Mr Otieno] has some maladaptive personality features that no doubt contribute to difficulties in his interpersonal relationships, but he is not overtly psychopathic. It is my opinion that the elevated score on part one of the PCL:SV reflects some prominent narcissistic personality features rather than psychopathy per se.
Under the Brief Psychiatric Rating Scale (BPRS) the report noted, paragraph 81:
The results of the BPRS indicate that Mr Otieno’s mental state is currently affected by some indications of grandiosity, elevated mood, and suspiciousness.
However, there was only partial evidence of these various symptoms. In summary, while these results could be suggestive of a developing hypomanic mood episode, they may also reflect [Mr Otieno] having some maladaptive personality features and being somewhat suspicious in regard to his ongoing Federal Circuit Court matters.
At paragraphs 87-89, the report continued:
[Mr Otieno] is a diagnostically complex man. Indeed, his grandiosity and optimism is striking and he initially presented with quite pressured and verbose speech; to the point that he appeared to be experiencing the beginnings of a hypomanic episode. However, as our interview progressed his speech slowed down and was at a normal rate for some time, especially when completing psychological testing. It still sped up at emotive times, but this variability was inconsistent with a hypomanic episode, especially given that we were discussing highly emotive topics. Moreover, during my telephone interviews with [Dr O] and [Ms G] I formed the view that this was not unlike [Mr Otieno]’s usual baseline functioning. Accordingly, while I cannot entirely discount that [Mr Otieno] may develop a bipolar illness in the future, especially given his history of such episodes, it is my opinion that he is not currently hypomanic.
In the absence of an episode of major mood disturbance, it is my opinion that [Mr Otieno]’s current presentation, which would appear to largely mirror his usual baseline presentation, is best explained by reference to maladaptive personality features during a particularly stressful period. In particular, [Mr Otieno] would appear to have some prominent narcissistic personality features (grandiosity, fantasies of success, reduced empathy) that do not meet full criteria for narcissistic personality disorder. He also has some paranoid personality features in the form of suspiciousness. As noted above, these features have likely affected his interpersonal relationships to some degree. Moreover, as seemingly longstanding aspects of his presentation, they are going to continue to influence [Mr Otieno]’s interactions with his ex-wife.
[Mr Otieno]’s alleged behaviour on the 24th of July 2021 would appear to reflect an interaction between his maladaptive personality features and what would appear to be alcohol intoxication and/or medication ... While [Mr Otieno] categorically denies drinking at all on the night in question, the police memorandum is clear that he smelled of alcohol and appeared intoxicated. In this state his characterological sense of entitlement and suspiciousness would have been amplified. This is admittedly speculative, especially given [Mr Otieno]’s denial of any alcohol use, but I am unfortunately unable to provide any cogent alternate explanation for this alleged incident. Indeed, his personality features alone would not explain the alleged behaviour.
At paragraph 90 of the report, noted:
A thorough and valid assessment of risk for violence cannot be conducted on the basis of such information. Nonetheless, I can say that [Mr Otieno] does speak about his ex-wife with considerable disdain at times and would appear to be very suspicious of her actions towards him and their property settlement. It is thus likely that he will continue to have a very poor view of her into the future.
Paragraph 91, having noted that there had been no observations of Mr Otieno with his children, the report continued relevantly:
Nonetheless, it is my opinion that his current presentation does not suggest any major implications for his role as a father, provided that he is not intoxicated with alcohol and/or prescription medication. [Mr Otieno] may become inattentive and self-centred when he is alone with his children. However, this could arguably be said for many parents who do not have his constellation of maladaptive personality features. Nonetheless, [Mr Otieno]’s ongoing suspiciousness regarding his ex-wife, which would appear to have at least somewhat extended to his son, does mean that there will be a risk of negative things being said about the children’s mother when they are in [Mr Otieno]’s care.
The report went on to record treatment and management, including (paragraph 92):
(a)Ongoing engagement with consultant psychiatrist. The report noted at paragraph 92,
While it is my opinion that [Mr Otieno] is not currently developing a bipolar illness, this admittedly cannot be ruled out entirely. As such, ongoing psychiatric review will be important to determine if psychotropic medication is ever necessary in the future.
(b)Regular treatment sessions with a clinical psychological to address his suspiciousness and monitor his alcohol use.
(c)It would be useful to consider some family therapy sessions for both father and his son and ex-wife (although Dr P suggested this should be explored more appropriately with Ms G).
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes.
The Evidence of Officer R
Officer R was called on subpoena and, by consent, was called first. Counsel for the mother asked him to describe his experiences on the night of 23-24 July 2021. Mr R said that he and a partner attended the father's home at approximately 1.20 am. They were there to conduct a welfare check on Y and X. He had been informed that Y had contacted his mother because the father was drunk and yelling at him and the mother dialled 000. Mr R said he knocked on the front door multiple times. He could hear the TV was on. A little boy opened the door and he had a brief chat. It was the same story that had already been given to him. He went into the premises and found the father, who was drunk. He was asleep in the sitting room. He stood next to the father and was talking to him loudly, but he did not respond. He finally responded. His offsider, Mr S, was speaking with the children.
Both of the children were scared of the father and did not want to stay the night. During his conversation with the father, the father was mumbling. He was a bit belligerent and nearly fell over. There were empty bottles on the ground. He smelt of alcohol. Constable R formed the view the father was drunk. He formed the view he was not capable to look after the children. The children wanted their mother. They called the mother to pick up the children, and she agreed. He discussed this with the father, who was not happy but agreed. The mother picked up the children at approximately 2.30 am. Ms Dwyer put it that the father disputed that he was intoxicated, but Mr R said he clearly was. This was a deduction based on his behaviour and speech. He indicated that a disc from his body camera had been provided to the court.
Under cross-examination by Counsel for the father about the number of bottles and the father's speech and his conclusion that the father was intoxicated, Mr R said there were two parts of it. He was slurring his words and did not make much sense. He said the same things multiple times. He did not recall the father saying he was happy to undertake a drug and alcohol test, but the instrument for that purpose cannot be used save for traffic matters. They were there quite a long time. They waited for the mother. The father was disputing intoxication. He brought out a Federal Court order. He could not recall how many empty bottles there were. There were three to four bottles on the ground. His partner had spoken to the children, but Y had been at the front door. He did not recall the father mentioning Nurofen. The father was argumentative but not aggressive.
Under cross-examination by Counsel for the Independent Children's Lawyer, Mr R confirmed that his partner had spoken to the children in the daughter's room. Y seemed quite scared with what was happening. He had asked Y if he was scared and he said he was somewhat scared. The children were quite happy to go with the mother. That was their wish. When asked if the children were safe with the father, given his presentation, Officer R said he had rather the children go to their mother for the night. He held concerns just for that night.
The Body Camera Material
The court was informed that there were two tranches of camera material: one of about 10 minutes and one of about 40 or 50 minutes. I elected to watch the 10 minutes first. As I indicated to the parties at the time, and they all confirmed this was an accurate appreciation of the matter, the camera did show that Y did come to the front door after some time. The father was in his day clothes but while he did not appear to be asleep when the officer first approached him, it was clear he had not responded to the knocking on the door, from which I had inferred he was indeed asleep. It was impossible to say from the camera material whether he was belligerent or not. There was no volume and therefore no speech recorded. The father did appear to become more agitated as the interview proceeded. Although I had half-thought I saw some bottles as the police officer entered the room, I did not see any thereafter and could not be sure that the first impression was correct.
The Opening and Evidence of the Father
Counsel indicated that Y had not spent time with the father since 23 July 2021. X had seen him once or twice spontaneously. The father seeks an eight-six arrangement in his favour. There were no particular reasons. It was submitted to be in the children's best interests, and it should commence at once. The father did not agree that there be any restraint as to his use of alcohol when the children were in his care or for the need for any further counselling. He sought half school holidays.
The father adopted his affidavits as true and correct. He indicated that he had just resigned his job. He has registered two businesses and is studying as well.
Under cross-examination by Counsel for the mother, it was put that he had heard the police officer and was asked if he was suggesting the police officer was not truthful. He said this was correct, 100 percent. When it was put that the police officer had no reason to lie, the father said, "Maybe he knows Ms Mwangi." He had been to see the other officer two weeks ago, who wished to help him. He believed the officer had said there had been beers on the floor, but he had made this up. He had never had a drinking problem. When asked if he had lost his licence for drink driving, he said there was only one time. He had lost his licence but had a lot of support from his family and from the DHS. A client had died on him, and he ended up drinking with him. This episode arose out of this stressful incident. He did not dispute he had lost his licence for 15 months. He ultimately accepted, despite first not answering, that he was found to have been three times the legal limit.
He said he had been driving for 40 years and only lost his licence once. He denied the mother's affidavit assertions that he was often drunk 100 percent. He said he was the main carer for the kids, 80 percent. He never drinks while the children are in his care and he drinks responsibly. Counsel traversed Annexure -13 to the mother's affidavit 30 August 2021, in which it was asserted that X had taken a video of the father very drunk and forcing her to drink. He said this never ever happened. The mother makes it up. X does not want to live with the mother. When Counsel pressed a series of text messages at -14 consistent with the allegation, the father said the matter was going to the County Court in July. It was a criminal matter. The mother had dictated this. If anybody mentions mental illness, he will sue them. His answer, I have to say, continued as a rambling discourse about treatment.
The father said Y needs a child psychologist and psychiatrist, and X needs a psychiatrist.
When questioned as to hospitalisation in 2018 because of mental health difficulties, the father said the mother left the children with him for two months. He has been cleared. He was in hospital about six weeks. When asked if he had been involuntarily hospitalised in Country H in 2015 for six weeks, he said he agreed. She engineered it. She forged his signature. Counsel put it that he did not like the mother and that they could not cooperate. The father said he had tried his best. He had given her presents in early 2022. It was put that he had been to the mother's house in breach of the intervention order, and he said he had dropped presents for X's birthday. Counsel put it that these were two bags of groceries which were out of date. He said the children were very happy with their presents. The mother had not told the children to thank him.
Counsel put it that he had not agreed that Y attend camp in City T the previous year. He denied this and said he did communicate with the mother but she did not reply. The evidence would come out in the County Court in July. He said to Counsel, "You're telling me she's the sole owner of the kids." When it was put that Y was reluctant to spend time but was prepared to allow some time, Counsel asked how he would handle it if Y refused to go with him. He said he does not force love. He does not control the kids. Y needs a psychologist and psychiatrist. It should be noted that the father did not in fact answer the question in terms. He has said that the mother needs a psychologist and psychiatrist.
I should interpolate to say that the father's answers were rambling, non-responsive and uncontrollable. I indicated to Counsel that there was no utility to detail further cross-examination.
Under cross-examination by Counsel for the Independent Children's Lawyer, Counsel asked if experts said he needed mental health support, why he would not do it. She pointed to the fact that Ms G had said this in the family report. The father simply did not answer. When asked what help he has at the moment, he says he has been seeing a psychiatrist for two years. He will see him for the last time on the following day. He does not need help. His son needs help. He never needs help. He will never change his mind. Counsel suggested that Y was worried about his drinking. He said that was a thought from the mother. Y needs a child psychologist or psychiatrist to change this. He also wants to change the Independent Children's Lawyer. X is 14 and wants to live with him.
When asked why he did not agree to a restraint of his using alcohol, he said he thought this was very terrible. He has been cleared by five psychiatrists. Y and the mother should see a psychiatrist. No-one should mention his mental illness or alcohol again or he will sue them. He is going to sue the police.
Counsel asked how shared parental responsibility could work given the difficulties in communications. The father says he has no problems. Her problems are not his problems. The issue is not him. He has been abused enough.
There was no re-examination.
The Evidence of the Mother
The mother adopted her affidavits as true and correct.
Under cross-examination by Counsel for the father, the mother confirmed she collected the children in July after the police were called. She got there maybe at about 1.20 am. She did not observe the father. The police brought the children. The father was urinating on the stairs. She got the children into the car. Y has not seen his father since. Counsel asked if she encouraged Y. The mother said she always says, "The father loves you, your father loves you." She does not allow bad things about him to be said. She tries not to discuss the father and adult issues. She does not discuss negative things about him. He will always be their father. Since July, she has tried to support the children. Y does not raise wanting to see the father.
When asked about X, the mother confirmed that in late 2021, she ran away. She did not know where she was. She called Suburb U Police. She went to his house and the police brought X out. It was put that she had destroyed X's telephone, but this question did not elicit a clear answer. She said there was no argument. She telephoned from her father's.
Counsel put it that she had a volatile relationship with X. The mother said she had a good relationship, but she is a teenager. She takes their phones from them and does not allow them to have their phones in their rooms at night. This gives rise to some argument, and X has said, "I hate you, Mummy." Counsel asked if there had been any other time, and the mother said the Independent Children's Lawyer arranged Facetime, but it has never happened. Counsel asked if X says anything about the father. The mother says she hasn't said anything, but the family report said she was happy to see the father. She was asked what she meant when she said the father should get fit and protect the children. She said this was because of an incident. There was an argument at changeover and he screams.
Counsel traversed the father's proposal for eight-six with him. She did not understand. If he got help, she would be happy with nine-five. When asked if there would be any practical problems with an equal shared time regime, the mother said she had been carrying the burden for a long time. He does not contribute in any way to the children's school expenses and does not provide financially.
Under cross-examination by Counsel for the Independent Children's Lawyer, the mother confirmed that Y was reluctant to see the father. She was asked how it might affect Y if he lived with the father more than with her. She was not sure, but did not think it would be in the children's best interests. The father would need help before time was to start. He needed to understand that this will take time. Counsel put it that all parties involved needed help to repair their relationships, and asked if this would work. The mother said there were problems with fighting. She has no energy. It has been going on for 10 years. He has been demeaning her. When asked if there were any communications in the last six months, she said there were so many messages. He was fighting her to the point where she needed the intervention order. The intervention order was in court on 5 February 2022, and he has appealed. When asked if there were any good communications between the parents, she said that he gave presents in early 2022. They were opened. It was a Christmas card, not a birthday card, and she wrote saying thanks.
Asked what would be the case if the father would not take treatment, she said she was really scared about his unpredictability with her and the children. He says bad things about her to the children. When asked about therapy, she said counselling is already there. She would be happy to attend with him if he was willing. She does not want to see Mr E. She was prepared to pay half the counselling.
Property matters
Submissions then moved to the question of property matters in which Mr Otieno was represented by a different Counsel. Counsel for the father sought that the orders made on 5 February 2020 be, as it were, reconfirmed and extended.
Counsel for the mother sought summary dismissal of the father's claim. Separation is 10 years ago, and it had taken the father one and a half years to apply. He had sought 50-50, except a $27,000 payment to him. It could not be 50-50, because the mother has had the primary care of the children and has paid the mortgage on the house. The mother will not pursue the $85,000 payable to her pursuant to the orders made by Judge Phipps. She owns the matrimonial home. There are four properties in Country H: two owned by the father and two owned by her. These properties are worth $260,000 in a $620,000 pool.
The Evidence of Dr P
Dr P adopted his report as exhibit D-1.
Counsel for the Independent Children's Lawyer commenced at paragraph 87 of the report, which noted that the father was a complex man and that bipolar had not been ruled out. Dr P said there was no disagreement that the father had had bipolar in the past. He had been hospitalised four times, and was hypomanic. Under Dr O, the father is unmedicated and there has been no further hypomania. The hypomania observed at the start of his interview with the father tapered off, although it ebbed and flowed. Dr P had spoken with Dr O and Ms G. He formed the view that the father's behaviour during interview was his baseline functioning. He has narcissistic and paranoid traits. When asked if he recommended psychiatric oversight and psychological psychologist help, Dr P, answered yes. He thought this would be good practice. The father needs a psychologist to monitor his suspiciousness and to monitor his alcohol and any possible change.
Counsel put it that the father said there was nothing wrong with him, and he had no intention of getting further help, but asked if this suggested any insight. Dr P said no. This was a clear and consistent pattern. The father has no insight into his past bipolar. The belief that nothing is wrong is narcissism and overly positive. When asked what the risk would be if there was no treatment, Dr P said this was difficult to answer. The father might appear self-centred and inattentive. It was necessary to keep an eye as to his alcohol use and mental health. The father's personality is well-set and will not change. His main concern is that he would denigrate the mother. There would be some family sessions with the son necessary before any time was spent.
Counsel for the father had no questions for Dr P.
Counsel for the mother noted that the father had denied being drunk, but the policeman said he was, and asked if this gave rise to any concerns. Dr P said this was positive distortion. It reflected a lack of insight and the father's overly positive view of himself.
The Evidence of Ms G
Ms G adopted her report as exhibit F-1.
Under questioning by Counsel for the Independent Children's Lawyer, she confirmed that she recommended five-nine. She also recommended that the father had psychiatrist and psychological assistance. Counsel put it that the father is refusing assistance and says there is nothing wrong. Ms G said this was problematic. The father has limited insight to support his son, if not himself, to repair the relationship. The son has a sense of fear about his own reliability.
When asked if she supported five-nine given the father's position, Ms G said no. She would only support that if supportive resources were in place. She would recommend a return to daytime contact with the children and that the father participate in extracurricular activities. The children could be with the extended paternal family with the father involved. The father's family are very supportive. X has said her cousin was very supportive. The mother was open to this. It would benefit X to have as much time as possible without restrictions. Shorter time for Y would be better. He could regain trust. This would be sufficient until the father sees the need for therapeutic treatment. The children, given their age, are likely to vote with their feet. X may want overnight time in 12 months' time.
Under questioning by Counsel for the father, it was put that the father believes the son is enmeshed with the mother. Ms G disagreed. Both children have secure relationships with the mother. Y is secure, but not enmeshed. Counsel asked if the mother was influencing the children's views, but Ms G said no. The mother could choose if there should be time with the father. Counsel asked if the father was preferential to X. Ms G said this was a recurrent theme. There was sibling rivalry and bickering. X's difficulties are within the normal range. Y was concerned X was bullying him and the father and X are joining forces. X was firm she wanted more time with the father. Five-nine would be acceptable. It would be difficult for X to accept any daytime order. She might try to spend more time with the father.
Counsel asked about the father's eight-six proposal and whether it was feasible. Ms G said she was not aware of that. It would not benefit the children at all, given their vulnerability at the moment.
Some Brief Observations about the Witnesses
I have already commented on the uncontrollable nature of the father's evidence. This was highly consistent with Dr P's report and observations. He was a poor historian who effectively refused to answer questions and made speeches of his own.
By way of contrast, the mother was generally direct and responsive. Her evidence was clear and concise. She presented with dull affect, and her description of the 10 years of struggle and its effect upon her were palpable. She was worn down and worn out by the continual need to respond to the father's attacks. It should be noted that the father's demeanour was not confined to the period when he was actually giving evidence. Throughout the time he was on the screen, he was gesticulating and demonstrating total disbelief in anything that did not suit his case.
It is not generally necessary to comment on the credibility of professional witnesses. It is appropriate to record that Dr P impressed me as a singularly well-qualified expert in his field. His answers were insightful and thoughtful and highly credible. The same can be said shortly of Ms G.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part 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 s 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 s 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” (ss 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
Dealing with the father must be an absolute nightmare. The communication between these parents is terrible. The father completely lacks insight into both the nature of his conduct and its effects. There has clearly been family violence, as demonstrated by the intervention order and more particularly by the events of July 2021. I note that the father has appealed the intervention order, and it appears the matter is going to be in the County Court later in this year. From what the father said and the way he said it, he appears to regard that proceeding as a kind of royal commission into all matters of which he wishes to complain. I suspect he will find that that is not the nature of the proceeding.
In any event, I should make it clear that the evidence of Officer R was entirely compelling, something I should have dealt with in with the witnesses section above. He was matter-of-fact and understated. He was plainly telling the truth and plainly accurate in his recollection. The father was yelling and screaming at the children to the point where they rang their mother, who called 000, and thus the police attended.
I will return to the issue of family violence more particularly when we come to section 60CC(3), but it is sufficient to say for present purposes that the presumption of equal shared parental responsibility is plainly rebutted by the father's family violence. It is completely contraindicated by his demeaning views of the mother (as expressed to Dr P amongst others) and indeed in his oral evidence before the Court. The only order that could possibly be in the children's best interests is that the mother should have sole parental responsibility.
The Spend Time and Communication Regime - The Primary Considerations
The mother herself concedes in broad principle that it is in the children's best interests to have a meaningful relationship with the father. As she says, he will always be their father. The need to protect the children from the risk of family violence is, however, very much present in this case. It has already reached the point with Y where he does not want to spend time with his father, or is at the very least apprehensive about doing so. This factor is required to be given greater emphasis by virtue of section 60CC(2A). It is, however, more appropriate to consider the matter by reference to the additional considerations in section 60CC(3).
Section 60CC(3)(a)
X spoke positively about her father to Ms G and desired that she and Y return to the nine-five regime, noting that she felt safe with her father and did not know why time arrangements had been changed. Y was scared to go to his father's place and concerned that his father gets angry for no reason. He became tearful as he spoke of these difficulties.
Section 60CC(3)(b)
X plainly loves her father and wants to spend time with him. She has at times a slightly conflictual relationship with her mother, but as Ms G pointed out, this was within the range given her age. It is likely that her attitude towards her mother is not helped by the father's denigration while she is in his care. I note that the most particular flashpoint between X and her mother was the use of mobile phones late at night, something the mother may find increasingly difficult to control as X gets somewhat older. Y has a loving relationship with his mother and is not enmeshed with her. That is Ms G's view and I accept it. There is no doubt he has residual emotion for his father, but he has an understandable fear of him given the father's behaviour.
It appears that the children have good relationships with both extended families.
Section 60CC(3)(c)
So far as I can see, the decision-making about the children's best interests appears to have been largely left to the mother. The father has of course prosecuted his case to judgment and has at all times sought to spend time with the children.
Section 60CC(3)(ca)
The mother's evidence that the father does not contribute to school evidence and the like was given with conviction, and I accept it. The father's position about provision of support to the children seems to be extremely equivocal. It is plain that the primary burden has fallen on the mother.
Section 60CC(3)(d)
The father's proposal for an eight-six regime in his favour was conceded by Counsel in opening (very properly in the circumstances, in my opinion) to have no real reasoning process behind it. It is just something that he wants. This is consistent with his narcissistic and overoptimistic personality. There is simply nothing to commend such a radical change to the children's circumstances, and Ms G was completely opposed to it.
The return to the nine-five regime appears to be what X wants, but I note Ms G's opposition given the father's refusal to accept that there is anything wrong with him. Like Ms G, I suspect X will not respond to daytime only orders and may well vote with her feet.
Any change requiring Y forthwith, as the father seeks, to recommence time with him is fraught with difficulty. The expert evidence is clear that Y would need some encouragement and counselling to enable him to do so. Given that the father refuses to engage in such counselling, this is problematic. It is reasonable also to suppose that any resumption of time without therapeutic intervention would be extremely difficult for the mother. Given the events of July 2021, such a fear is entirely understandable and reasonable.
Section 60CC(3)(e)
There does not appear to be any difficulty relating to expense with the children spending time with either parent. The practical difficulty of having an order compelling the children to see their father runs into the immediate and obvious difficulty that Y simply does not want to do this at the present time.
Section 60CC(3)(f)
In the context of this case, this is a particularly important subsection. The mother plainly has the capacity to provide for the needs of the children, although as I have already observed, she may need to reconsider her somewhat strict approach to the use of mobile phones and the like in the light of the children's developing age. The father's capacity to provide for the needs of the children is indicated, at least in part, by X's continuing affection for him, and indeed the residual affection of Y. However, his capacity to do this in a way best attuned to their best interests is seriously compromised by the deficits which Dr P has, so accurately in my view, described.
Section 60CC(3)(g)
Once again, this is important. The father's lifestyle involved drinking to excess (and I do not accept his denials for a moment). When affected by alcohol, he yells and screams at the children, as he did in July last year. His adamantine refusal to accept his conduct shows a deficit that is all the more striking and important given the effects of his behaviour upon Y in particular. His apparent favouritism of X is also a matter for deep concern, given the effects it has observably had upon Y as he discussed with Ms G. The mother has presented to me as an extremely sensible, mature, level-headed woman who, unlike the father, remains in employment. She continues to provide for the children accordingly. His evidence about his employment was typical of his grandiose thinking. The tenor of what he had to say was that his two new businesses would rapidly exfoliate to some extremely financially rewarding outcome. It has certainly not happened yet.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
The mother's attitude to the responsibilities of parenthood appeared to me to be entirely normal and appropriate. Noteworthily, the father on one occasion accused the mother, suggesting she was the sole owner of the kids. There is a markedly proprietorial quality to his notions of what a father should be.
Section 60CC(3)(j)
I have no doubt that the father has been violent. If nothing else, his behaviour in July last year constituted significant family violence and caused the children considerable fear. The intervention order, although directly relevant under section 60CC(3)(k), speaks for itself. The father says he will reverse this on appeal, but until and unless he does, it is an established fact.
Having seen the father give his evidence, I have no doubt whatever that, during the relationship, he would on occasions, when intoxicated particularly, shout and yell and the mother. Whether there was further family violence is not necessary for me to determine, but to the extent that there was any conflict between the evidence of the mother and the father, I would prefer that of the mother.
Section 60CC(3)(k)
As already indicated, there is an intervention order in place, and of course this speaks for itself.
Section 60CC(3)(l)
It is plainly desirable to bring this appallingly long-running saga to an end. The children need it, the mother needs it, and although he does not appreciate this, the father does too. It is clearly in the children's best interests that the stress and strain of litigation be removed from all concerned.
Section 60CC(3)(m)
This brings back into focus the critical question of the father's complete failure to accept the medical diagnoses made in respect of him and to take any treatment. It is a matter addressed in the parties' written submissions.
CONCLUSION ON PARENTING ISSUES
The Written Submissions
I have of course read and had proper regard to the submissions of all of the parties. I intend however to concentrate on the written submissions of the Independent Children’s Lawyer, because a number of the matters asserted are in my view entirely accurate. The report noted the recommendations of Dr M and Dr P that the father seek treatment on an ongoing basis and went on to say at paragraph 21 and following:
It should be noted that the Father continued to dispute with [Dr P] that he has any mental health issues. The Father is quoted by [Dr P] when referring to the mental health history “as all this nonsense”.
At paragraph 88 of her latest Family Report dated 13 March 2022, [Ms G] repeats that “[Mr Otieno]’s mental health has been assessed as little risk to his parenting capacity, as long as he continues to attend ongoing psychological /psychiatric therapy”. This need for both ongoing therapy and a restraint regarding the use of alcohol by the Father is reiterated by [Ms G] when one looks at her recommendations commencing at paragraph 127 of the Report.
In summary, the evidence of all three Court appointed experts is that any impact on the Father’s parenting capacity by reason of his mental health history and bipolar disorder is limited, but only if his mental health and his psychological functioning remains monitored and supported by mental health professionals. This is especially so, it is submitted, given that the Father himself has very limited insight into his mental health and indeed believes he is not unwell at all. In those circumstances one could have no confidence that the Father would be able to recognize any decline in his mental health.
The oral evidence of the Father in regard to his insight into his mental illness and the recommendations of all experts for ongoing treatment and monitoring should be of enormous concern to the Court.
The Father was extremely discursive, argumentative and completely non-responsive. He was as the Court noted “impossible to contain” and it was impossible to redirect him to answer a question from anything other than his own perspective. There was nothing in his evidence which could be said to show a child focus. He spoke very quickly and gave a lot of information. It was sometimes very difficult to follow the evidence clearly.
The Father demonstrated no insight into his own mental health difficulties and denied that he has any mental health issues and denied the need for any mental health treatment or support into the future. He told the Court that he would not be having any ongoing treatment. He was adamant about this and could not be swayed to do else wise for the sake of the children.
In paragraph 43 the Independent Children’s Lawyers submissions continued
The Father told the court that he would not agree to a restraint on drinking when the children were in his care. It is difficult to understand this position in circumstances where the Father knows that [Y] has expressed some reservation about attending to see him. The Father gave evidence that he is an adult and it is his right to drink. In any event the Father believes that anything [Y] says is influenced by the Mother to support her case and minimise his role in the children’s lives.
Paragraphs 49-50:
The Father’s oral evidence should cause the Court concern about the Father’s ability to refrain from denigrating the Mother to the children, especially to [X] who he seems to believe has a fractured relationship with her Mother and wants to live with him. There is significant concern that prolonged exposure to the Father’s care would lead to [X]’s relationship with her Mother being damaged and undermined to achieve the Father’s end of seeking her primary care.
More troubling even than the Father’s attitude to the Mother, was his evidence about [Y] and the reasons why that relationship is fractured at the moment. Again his evidence is that this is [Y]’s fault and the Mother’s fault. Such was his lack of responsibility and his lack of empathy for the child that [Dr P] was minded to comment on this in his report and at paragraph 92c make a recommendation that the Father engage in family therapy to assist them both in any future reconciliation.
While repeating and emphasising again that I have regard to all of the written submissions, these particular facets of it are entirely correct in my view. I agree with the Independent Children’s Lawyer’s submission at paragraph 61 that in light of the father’s rejection of any notion that he has any mental health issues and refuses treatment, time should revert to day time only as recommended by Ms G in her oral evidence. I agree that this step is necessary in order to safeguard the children. It is sufficient to say that the ancillary orders sought by the Independent Children’s Lawyer are self-evidently in the children’s best interests in the circumstances and those orders will also be made.
THE PROPERTY APPLICATION
As earlier indicated, and as canvassed in the parties' written submissions, the court has given thought as to whether or not the property component of this proceeding should be summarily dismissed.
There are two heads of power pursuant to which this might occur. First, given that the parties are plainly in default (a matter I shall return to), the court may dismiss the application pursuant to rule 13.05. This may be for failure to comply with an order in proceeding (rule 13.04(a)) or to prosecute a proceeding with due diligence (rule 13.04(e)).
Alternatively, the court may dismiss the application pursuant to section 45A of the Family Law Act, which provides in essence that the court may dismiss a case in the event that a party has no reasonable prospects of success, which pursuant to section 45A, does not mean that a party must be doomed to fail.
In order to put consideration of these aspects of the matter into perspective, it is appropriate to trace the lengthy and laborious history of this proceeding. It should be noted that I reread the entirety of the matters filed going back to 2013. It started with the mother's divorce application filed 6 September 2013. It was augmented on 7 October 2013 when the mother filed for parenting orders and property orders. In her affidavit filed contemporaneously, it was noted that there was an intervention order on 29 July 2013 following assaults by the father. The property pool was described as the matrimonial home, with $300,000 worth of mortgage, which was paid jointly. The mother has asserted in her affidavit that the parties had obtained a line of credit additionally for $132,000, which the mother said the father had transferred to his own account.
The father’s formal response, filed on 16 December 2013, relevantly sought that property settlement is left for the parties to resolve between themselves by reaching agreement through mediation. He also sought "Court to order my mother to yet produce two Country H title deeds she is withholding without my consent with both names. There was no pre-nup in our marriage."
In his supporting affidavit filed 16 December 2013, the father agreed to abstracting the $132,000. At paragraph 39, he deposed:
However some of, the amount was A$100,000.00, for buying the house in [Country V] and building our home in the village and land. The only thing she disagreed was her name to be in the property and I agreed it was to be added after the title was ready. She started making stories and refused to pay equity as she knew it will take some time for title to be out adding her names. On 17/09/13 the title was ready and I sent her email.
My wife and I have added my name in two properties we own in [Country H] after we purchased them under her names and she knows it takes time to get titles from contract even to changing titles takes up to 2 years.
My wife is withholding two properties without my consent in [Country H] by hiding two title deeds documents with both names.
I should observe that it is thus apparent that the question of the properties in Country H and as to their formal legal ownership has been a live issue in the court since December 2013.
In his financial statement filed 27 February 2014, the father disclosed the ownership of the formal matrimonial home and also a property at W Street, Country V with an estimate of $100,000, of which he was the sole registered owner. He also deposed to a property described as a government unit E-$50000, jointly owned by the parties, and in part O disclosed Z Town land in Country H, E-$40000, joint owned, and land at AA Town in Country H owned by the father, E-$5000.
In the mother's responding affidavit filed 20 January 2015, the mother deposed at paragraphs 32-40 about the property matters. She deposed at paragraph 31 to a property at BB Town, which she had purchased before she met the father, but that the title had the name of the respondent father as a joint proprietor. Exhibit -18 (not in the hard copy file, but available on the court’s internal digital file system) shows a 99 year lease issued to the mother in 1997, and a further lease in joint names issued in 2009 (-17).
The mother also deposed to receiving documents showing that a flat in Country H allegedly owned by her had the father's name on it.
In her case outline filed on 18 February 2015, the mother detailed the property pool. The matrimonial home was valued at $536,000 with a mortgage of $260,000 and a line of credit of $130,000. The property at City CC, Country H was valued at $129,000. The Z Town land was valued $80,000. The AA Town, Country H property was valued at $5000. The property at BB Town and the flat either owned or leased from the government were not included.
On 27 November 2015, the mother filed an application for a section 106A order in respect of the matrimonial home in Suburb U. In her supporting affidavit at paragraph 8, she deposed:
At Court on 25 November 2013 the Father through his lawyer informed my lawyer that he used the $132,000.00 to purchase an apartment in [City CC, Country H] and that the apartment was rented out.
On 1 March 2016, the mother made a further application specifically related to property (I have passed over other ones restricted to children's issues alone) seeking a super split, but more particularly a declaration that the government housing agency of Country H transfer a flat at City DD to her own name together with an application that the father pay her $85,560. She also sought that the father comply with order 2 of the orders made on 2 December 2015. In her supporting affidavit, the mother referred to orders made on 18 February 2015 (to which it will be necessary to return) requiring disclosure. She also appended an agreement showing the purchase of the property at BB Town on 26 August 2000.
On 8 March 2016, the father file an affidavit deposing that he had been overseas and unwell on 2 December 2015 when the previous hearing occurred and was also unable to attend court on 3 March 2016. He did not in terms seek to set aside the orders previously made, albeit that it was plain that, in substance, this was what he was seeking.
On 9 November 2016, the father filed an initiating application, but it related solely to parenting issues.
It was not until 20 December 2017 that the father filed an application seeking to discharge the orders made by Judge Phipps on 2 December 2015 and 3 March 2016, and seeking a 50-50 division of the asset pool. His supporting affidavit, in addition to explaining his non-attendance at court, set out the value of the properties as:
Suburb U property, $750,000;
City CC property, $132,000;
City DD estate, $250,000;
BB Town block, $100,000;
AA Town, Country H land, $10,000.
The affidavit noted the mortgage on the Suburb U property of $250,000 and the line of credit, $132,000, and a mortgage on City DD estate of $80,000. Leaving aside cars and the like, the 50 percent division sought by the father of the net pool of $678,000 was one in which he would retain a 50 percent split which required the mother to pay him $27,000.
I note in an affidavit filed on 20 January 2018 by Dr EE at paragraph 38, the father informed Dr EE that the parties jointly saved the money with which to buy Suburb U, and at paragraph 28, that the relationship commenced upon the mother’s arrival in Australia in 2002.
The next development so far as property was concerned was the mother's application in a case filed 13 April 2018. Relevantly, the mother deposed that she was paying off the mortgage and line of credit with which the father brought the property in Country H and complaining of the non-payment of costs orders.
On 27 June 2018, the mother filed an affidavit seeking that there be a section 106A order in respect of the transfer to her of the Suburb U property. On 28 November 2018, the father filed a response to an application in a case in which he sought
1.All 4 properties to be distributed equally
2.Evaluation of all properties to be undertaken as per Appeal of 2018, application of properties
3.See attached Annexure 1 for property descriptions
Annexure 1 states the properties as the Suburb U property, the City DD property, the BB Town property and the City CC Property.
In his supporting affidavit filed 28 November 2018 at paragraph 10, the father accused the mother of forging his signature to remove his name from ownership of the City DD property and also the BB Town property.
On 23 March 2019, the mother filed an affidavit seeking a section 106A order in respect of the City DD property. The affidavit annexed a tenant purchase agreement in respect of the City DD estate dated 10 February 2009 in joint names.
On 10 August 2020, the father filed another affidavit. He complained of the transfer of the Suburb U property to the mother. He referred to orders made on 29 November 2018. In paragraph 5, he complained of the properties at BB Town and City DD being transferred to the mother by fraud, and at paragraph 6, confirmed that he sought equal distribution of all properties, but including the two properties in Country H.
The only other reference to property matters thereafter is contained in the mother's affidavit sworn 29 August 2021. The mother deposed to the orders of Judge Phipps dealing with the City DD property. Although the affidavit refers to an attachment MM-5, the copy of the transfer into her name, that document is not appended to this particular affidavit.
Against this somewhat confusing history, it is necessary now to turn to the orders the court has made from time to time about property issues.
THE COURT'S ORDERS
It appears that Judge Phipps ordered a conciliation conference on 25 November 2013. There is a handwritten note which appears to read "valuation order". From the notes of the conciliation conference report prepared by a Registrar on 3 March 2014, the matter did not proceed because of incomplete valuations. The matter returned to court on 11 March 2014 and 15 May 2014. On neither occasion were any orders made relating to property, but the matter was fixed for hearing on 18 February 2015 with an estimate of two days. On 18 February 2015, the matter was adjourned until 2 December 2015. The father was ordered to pay the mother's costs thrown away. The father was ordered to provide documentation relating to the circumstances in which he became the owner of the properties in Country H (the order does not appear to have been engrossed, so it is not easy to see exactly what the details of this were, but they appear to encompass the City DD property).
On 2 December 2015, the court relevant ordered that the property matters be adjourned for interim contested hearing on 3 March 2016, and that the father transfer his interests in the Suburb U property to the mother (with a section 106A order).
On 3 March 2016, the father did not attend court. The matter was fixed for final hearing on the issue of superannuation on 19 May 2016. The father was ordered to remove his name from the City DD property and to pay the mother $85,560. A section 106A order was made in respect of the Suburb U property. There was a superannuation split of $16,000 (this was adjourned ultimately until 28 July 2016 for procedural fairness).
Thereafter, despite a number of attendances at court, no property order was made until 29 November 2018, when the court made an order for the lodgement of a caveat in the sum of $50,000 in the context of the mother's proposed travel to Country H.
On 5 February 2020, on application made by the parties themselves, the court made orders by consent vacating the trial date of 7 February 2020. The court ordered, in relation to the real property in Country H, “each party will provide a real estate appraisal for each of the properties and the agreed value of each Country H property will be a median value within 28 days.” There was also an order to value the Suburb U property and to appoint Mr FF of Counsel to conduct a mediation to be conducted "no later than 15 March 2020, with the costs to be shared equally". It was also ordered that each party would provide the other with further discovery of financial documents as requested by their respective solicitors no later than seven days prior to the mediation date.
There is no question that those orders have simply never been complied with, nor have any of the parties taken any steps otherwise to activate those orders until the matter came on for trial. This is despite the fact that the matter has been back to court on numerous occasions in the interim.
What Flows from this Torpid and Unsatisfactory History?
First of all, it is immediately obvious that the parties are substantially in default. Leaving aside any earlier transgressions, the parties have simply failed in any way to comply with the orders that they sought by consent in February of 2020. Since then, they have been back to court 11 times without agitating in any way whatever the issue of property matters.
Second, the issues of the properties in Country H have been at large since 2013, but have not progressed in any meaningful way save that the mother has sought and obtained court orders to transfer to her the City DD estate property.
Third, the father took from March 2016 until 20 December 2017 to seek to challenge the orders made by Judge Phipps disposing of property matters.
Since December 2017, he has raised in his response filed 28 November 2018 the question of an equal distribution of property and obtained the orders in February 2020, but otherwise not prosecuted his case at all.
The picture that emerges to me with considerable clarity is that the father has concentrated the vast bulk of his energies on the parenting component of the dispute. Property appears to be a late add-on in 2022, following total inertia from February 2020.
The parties separated in 2011 (the mother’s version must have been accepted by the court for the divorce to have taken place). Even if that is wrong and separation was in late 2013, they have now been separated for the better part of nine years. Final orders were made as long as six years ago.
In these circumstances, the inescapable conclusion is that the father has not only failed to comply with court orders, but more particularly has failed to prosecute the property component of his proceeding with due diligence. This stands in the most marked contrast to his, albeit at times erratic, but dogged prosecution of his parenting application.
In my opinion, on this basis alone, the mother is entitled to have this aspect of the disputation put finally to one side.
Even if this conclusion were not correct, it is in a sense buttressed by the father’s prospects of success. The court is of course obliged to consider this matter in the light of the authoritative observations of the High Court in Spencer v The Commonwealth of Australia [2010] HCA 28 at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution.
Their Honours continued at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success.
The plurality of Hayne, Crennan, Kiefel and Bell JJ said at [51]-[52]:
First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
Second, effect must be given to the negative admonition in sub‑s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub‑ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
The plurality went on at [58]-[60] to say:
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole.
The court is required to draw reasonable, rather than plausible, inferences in favour of Mr Otieno (see per Justice Gordon in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60).
Here, the property pool consists of the property in Suburb U and the properties in Country H. The BB Town property appears, on the face of the documentation, to have been owned by the mother long before she met the father. The City DD property is in the mother’s name, and is still substantially mortgaged. The father owns the property in City CC or W Street, Country V (I suspect the latter) entirely because of the mother's paying of the line of credit. The father owns the last Country H property at AA Town.
The father's own position in his affidavit material was that the mother should pay him $27,000.
Given the evidentiary deficiencies in this case, it is of course wholly impossible to make any detailed assessment of the father's case, but it is sufficient to say that his assertions as to the equal distribution of the pool would face considerable difficulty. The mother has had the primary care and cost of the children since separation, and has certainly been paying the mortgage and the line of credit for a very protracted period of time, even accepting of course that she has the benefit of living in the family home.
The evidence does not go so far as to permit a finding that the father has no reasonable prospects of prosecuting his case simply because the evidence of the value of the properties is not there. It is not there because the parties have done nothing about it for over two years. All I would say is that my conclusion that the father has not diligently prosecuted his case is buttressed, at the very least, by the fact that the underlying facts as to the property dispute would throw at least into some question his prospects of success.
CONCLUSION
I observed during the trial that I have formed the impression the father intends to litigate against the mother for as long as he possibly can (I think I used the phrase "for the rest of her life", which is plainly hyperbole). Nonetheless, his desire to litigate against her was evident in everything he said and the way that he said it. The parties have been separated for a very long time, and the mother has been lawfully entitled to such property as she now owns for a considerable period of time, (which required the assistance of the court in the form of section 106A orders). The father’s assertions as to fraud (so unenergetically pressed) must be seen in this context. She has been adjusting her life since 2016 in accordance with the orders then made. In my opinion, she is entitled to an end to this unending saga. I observe in passing, as I already have in relation to the parenting issues, that the conclusion of these proceedings will surely benefit both the parents and, through them, the children.
I am going to order that all property applications be dismissed.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 20 April 2022
0
2
0