PADLEY & PADLEY (No.2)

[2015] FCCA 3576

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADLEY & PADLEY (No.2) [2015] FCCA 3576

Catchwords:
FAMILY LAW – Children – the presumption of equal shared parental responsibility rebutted and is to be exercised by the mother – father’s time with child suspended – father poses risk of harm to child due to his conduct and behaviour.

Legislation:
Family Law Act 1975 (Cth), s.65DA(2)

Applicant: MR PADLEY

Respondent: MS PADLEY

File Number: SYC 1219 of 2015

Judgment of: Judge Henderson

Hearing date: 25 November 2015

Date of Last Submission: 25 November 2015

Delivered at: Sydney

Delivered on: 26 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: Pryor Tzannes & Wallis

Counsel for the Respondent: Ms Coulton

Solicitors for the Respondent:	Eleanor Murphy & Company Solicitors
Counsel for the Independent Children’s Lawyer:	Mr Ng

Solicitors for the Independent Children’s Lawyer: Adams & Partners Lawyers

ORDERS

1. The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 25 February 2016 at 9:30am.

THE COURT ORDERS THAT PENDING FURTHER ORDER THAT:

1. All prior parenting orders for the father to spend time with the child X born (omitted) 2013 are suspended.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Any time the father spends with the child shall be at the sole discretion of the mother.

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

IT IS NOTED that publication of this judgment under the pseudonym Padley & Padley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1219 of 2015

MR PADLEY

Applicant

And

MS PADLEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Padley & Padley, is an interim application by a mother to suspend orders made by Judge Scarlett on 13 August 2015 relating to the child, X, who was born on (omitted) 2013. The mother seeks to suspend those orders and that the presumption of equal shared parental responsibility, which was also an interim order made, be rebutted. The father resists the application.

2. Mr Maurice of counsel acts for the mother and Ms Coulton of counsel for the father and Mr Ng, solicitor for X.

3. The evidence for the parties was as set out in their respective case outlines.

4. For the mother.

   a)Her application in a case filed 27 October 2015.

   b)Her supporting affidavits sworn 26 October 2015 and 20 April 2015.

   c)Various letters from the father’s solicitors to the mother’s solicitors. Some have been tendered but many are attached to the parties’ affidavits.

5. For the father.

   a)Response to the application in a case, his affidavits of 6 October 2015 and 6 November 2015.

6. The short facts were set out by his Honour at the interim hearing on 13 August 2015.

7. The father was born on (omitted) 1975, the mother (omitted) 1978.

8. They married on (omitted) 2011 and separated on 17 October 2014.

9. X was born on (omitted) 2013.

10. Since the parties separated and until about 11 June 2015, X had been spending time with her father regularly but of a short duration.

11. The matter came before his Honour because the father took the child without the mother’s permission at a swimming lesson and the mother was concerned that the father was not going to return the child. He ultimately did, later in the day, and the mother was thereafter not in a position, she believed, to let the father spend time with the child. The application came before the Court and his Honour put back in place what had been the parties’ arrangement.

12. At the outset, I accept the evidence from the husband attached to his affidavit from his treating psychiatrist, Dr D, that he is mentally well at present, has been well since 2009, and his schizo-affective disorder which was diagnosed in 2005 is well managed. Having so accepted this evidence leads me to the view that the father’s behaviour since August 2015 is even more concerning than it would have been had that not been the case.

13. I am not here to determine if a party suffers from mental illness or any other illness as such, per se; rather, my inquiry is as to whether adult behaviour is having a negative or positive impact upon a child and the consequences of adult behaviour for a child. All I can do under the Family Law Act is make an order in a child’s best interest.

14. I gave leave to the father to give oral evidence of his now-proffered realisation that his past behaviour was a risk to the child, that perhaps he had harmed his child that his behaviour was not child-focused and he now realised the error of his ways.

15. It was important to allow the father to give this evidence as his filed material is entirely to the contrary. In his written and filed material he seeks to lay blame for every event on the mother. His material tells me poor outcomes are the mother’s fault or some other person’s fault. He has accused the mother of neglecting their child, positively ill-treating her, not putting the child’s needs first, interfering with he and his daughter’s relationship and being generally a neglectful mother of his daughter. That this was his opinion is clear in his affidavit filed on 6 November 2015 at paragraph 114 where he asserts:

    I am concerned that Ms Padley is not fulfilling our joint parental obligations or acting in the best interests of X. She has disallowed X to continue physiotherapy. She has failed to take her to swimming lessons, failed to provide an adequate explanation for continual bruising on X, was not prepared to investigate X’s speech difficulties with appropriate doctor/therapist. I do not believe Ms Padley is acting in X’s best interests or encouraging X to reach her full potential. Furthermore, Ms Padley is deliberately hindering my ability to act in X’s best interests when she has obstructed and prevented medical practitioners I took X to from attending any further.

    One can see that, as at 6 November 2015, the father did not have the view that he was in any way at fault for the circumstance he finds himself in.

16. It is clear to me from reading the father’s own affidavit material that, since August 2015, he has waged a campaign against the mother to prove that she is neglectful of the child, bruising is somehow her fault, is neglectful in not treating her medical issues, as he sees them, appropriately, and in order to wage this campaign the father has used his daughter.

17. Many of the father’s allegations against the mother were in existence at the time of Judge Scarlett’s judgment. It is clear in the affidavit evidence filed at that time by the mother and father of his constant complaints of neglect of the child, not taking her to appropriate medical practitioners, bruises and the like. However, I need not read the mother’s affidavit material; this evidence is all in the father’s material.

18. At paragraphs 33 and 34 of his Honour’s judgment, he makes the following comments:

    The arrangement was suspended by the mother as a result of the father’s actions on Thursday, 11 June 2015, which appear to have been ill-advised and irresponsible. It would not do for a party to take the law into their own hands by taking a child away from the parent with whom the child normally lives without advice about where the child will be or until pressed when the child will be returned. It is hardly surprising that the mother has lost confidence in the father’s ability to act responsibly when the child is in his care as a result of that action.

    There was no mention of these wise words in the father’s material filed for these proceedings only a repetition of his complaints about the mother.

19. The allegations by the mother of the father’s concerning behaviour towards her and the child continue. The father continues to complain that the child has a large number of unexplained bruises which occur in the mother’s care. He has taken voluminous photographs of the child, attached them to his affidavit. The child is photographed in many different poses. Lying on her back, standing up, pictures of the child from above and below where she is standing and so on.

20. The father continues this behaviour despite the mother having taken her daughter to her general practitioner, Dr G, on 20 April 2015 and Dr G reporting as to the bruising:

    This is consistent with a child learning to walk. The bruising is nothing to be concerned about.

21. The father had this information some short time after 20 April 2015 yet continues his campaign. The complaints he puts in his affidavit filed in these proceedings on 6 November 2015 are repetitive of what he said in his affidavits at the hearing before Judge Scarlett. His complaints go back to February 2015. The campaign has waged all of 2015.

22. The father asserted the mother has debilitating arthritis which causes her difficulties in caring for the child and that she is unable to care for the child. There is no credible evidence to support this assertion. That the child walked and crawled late. The mother has failed to take her to physiotherapy. Despite a report on 20 April 2015 by Dr G that she was within the normal range of capacities that would be expected of a child her age the father persists.

23. Not one of the father’s allegations in any of his affidavit material has been substantiated, yet in his oral evidence he stated again and again and again to me, “I have genuine concerns.” Despite my request to enunciate these concerns he could not.

24. In his affidavit of 12 October 2015, he describes no remorse as to his earlier conduct nor demonstrated any remorse in his oral evidence when given an opportunity to do it.

25. The father’s conduct post 11 August 2015 and his Honour’s judgment has perpetrated harm upon this child. He caused his two and a half year-old daughter to have a blood test all because he believed her bruises may be more than Dr G had written about in his report and he believed his daughter had some underlying physical condition. He allowed his two and a half year-old child to have a needle put in her arm to draw blood. This is at a period of time when the father is spending about three hours on each occasion with his daughter and this is what he chooses to do.

26. Faced with this fact I gave the father an opportunity to tell me what he had learned, what he would change, what he understood was the consequence for his child of his poor behaviour, of unnecessary and invasive medical procedures he authorised to be carried out on his daughter without the mother’s knowledge or her consent at an age of two and a half years being the taking of blood for an unnecessary blood test.

27. All he could say in oral evidence was, “I was not – I did not really know that I had to tell the mother this is what I was doing. I have had – have genuine concerns.” Never once did the father say he was wrong to subject his daughter to such an invasive procedure, give an assurance he would never do it again, show any insight into how it could have terrified or upset her. There was not one word from him of the negative impact on his daughter of his behaviours.

28. The father took the child to a speech therapist on 19 October 2015, again without the knowledge of the mother or the mother being involved in that interview. The speech pathologist said in her report, which is attached to the father’s affidavit, the child was distressed, covering her ears and pointing to the air-conditioner because of the loud noise.

29. It was put to the father by Mr Maurice that, when his daughter became distressed at this event, did he think it was appropriate to remove her. The father could make no such concession and said, “I was guided by what the therapist said.” Thus any issues are due to the therapists decision it was her fault and not his. This is at a time when he was spending three hours with his daughter. This is what he chose to do in his short time.

30. The father said he took the child to the speech therapist because he was concerned about her speech. That she has few words and no sentences, and children of her age he has met or he knows from speaking to other parents have sentences and are more verbal. That may be right and his concerns may well be justified, but he took this action without any notification to the mother and without the mother being present at that time. Further it is clear his daughter was distressed at the session.

31. The mother was not present on the occasion and could not give the child comfort. The mother could not give the speech therapist her input. Thus the therapist had nothing from the parent who is the child’s primary carer, with whom the child effectively lives twenty-four-seven and/or what the mother was doing for her child if there be a problem.

32. There are clear errors in the report and they can only have come from the father. The speech pathologist said that the child lives with the father three days a week and at other times with the mother. That is incorrect. At that time the child was spending three periods of three hours a week with her father, perhaps more on a Sunday; otherwise, she was and continues to live with her mother.

33. When the father was pressed on how this error arose he attempted to blame the therapist because he was sure what he said was “three times a week”, not “three days a week” – again a third party is at fault. There was no acceptance of responsibility or blame for what he did to his daughter on that occasion.

34. He booked the child into a developmental paediatrician on 16 November 2015, again without telling the mother. That appointment did not occur as the matter came before the Court on that date and it is now before me. Never once did he give the mother notice of any appointments or provide to her any of the results he obtained from his interventions. It was three weeks after the event before the mother obtained the results of the child’s blood tests which showed she is a healthy child with no abnormality whatsoever.

35. The father did not understand or grasp the level of abuse he had perpetrated on his daughter by that invasive medical procedure or continuing with the speech pathologist when his daughter was clearly distressed. Clearly the need to gather evidence against the mother to continue his campaign was at the fore not his daughter’s best interests.

36. The father was not accepting of the Department of Community Services’ closure of their file. The file had been opened when he alleged the child was suffering bruises in the mother’s care. When the file was closed the father set about gathering evidence to prove to this Court that his child is at risk of harm in the mother’s care. It is clear he set about gathering that evidence, to support what he describes as his “genuine concerns”, careless of the impact of that course of conduct and action on his daughter, who is my primary and only consideration in this matter.

37. I accept Mr Maurice’s submissions that the father’s insistence on exploring his genuine concerns will overtake any other consideration including the best interest or the appropriate parenting of his daughter. That is his focus. It was clear to me in the witness box, despite Ms Coulton’s submissions to me that:

    a)The father understood and I should accept his evidence that he will not do these things again.

    b)He will not behave in this fashion in the future.

    c)He will sign an undertaking not to take her to medical practitioners and the like. I was not satisfied. The father has no idea today, it seems to me, what he has actually done or why it was wrong to have acted as he has or the consequences that may fall from what he did.

38. I saw no sorrow. I saw no regret from the father for what he has done to his daughter. If he again is genuinely concerned about some events or some physical effect on his child he will do what he needs to do to explore his genuine concerns regardless of the impact of that conduct upon his daughter.

39. The child’s best interest is the paramount consideration. I do not see any order I make today or any undertaking he gives will stop him from doing what he wants to do in the future.

40. The father has absolutely no regard for the equal shared parental responsibility order that he and the mother were subject to. He would not sign an undertaking, when the mother became aware of what he had done to the child in taking her to medical practitioners and other health professionals and only now on the heel of the hunt, when these issues are before the Court, says, “Oh, I understand what I’ve done wrong. I won’t do it again.”

41. His evidence as a whole does not satisfy me he will not act in the future as he has done in the past.

42. I accept the mother’s genuine fears of the father deciding to put himself near her home on 19 October 2015 such that he felt he was stalking her. The consequent AVO proceedings will be determined in another court. I make no finding about that.

43. I do find that he placed himself near her home for no proper reason and that this was a voluntary action. His excuse was some story about his sister or sister-in-law or brother or brother-in-law having a café in the area and he was getting his car repaired in the vicinity and that was why he was near her home. The father chose to do this – place himself near the mother’s home and this has caused her concern. I have no faith that he will desist from so doing in the future.

44. This fear the mother has that the father was stalking her combined with his behaviour towards and treatment of their daughter unbeknown to her on at least two occasions, in his three short periods of time, satisfy me that the father poses an unacceptable risk of harm to his daughter. I accept he is mentally well and thus his actions are even more concerning.

45. Going to the Act, I will rebut the presumption of equal shared parental responsibility. This father has no insight or understanding of the needs of a child. His conduct and behaviour is contraindicated to the best interest of the child and he has placed his own needs to gather evidence against the mother as the paramount consideration, not his child’s welfare. These parties cannot communicate. The father’s conduct on 19 October 2015 has further concerned the mother to such a degree that her stress levels have increased, which must only have a negative impact on her parenting of the child, she being the child’s only functioning parent at this stage. It is not practical, nor realistic, nor in the child’s best interest it be shared and I will rebut the presumption.

46. I need not, therefore, consider an order for equal time or significant and substantial time.

47. I have today determined that, on an interim basis, the father is at present an unacceptable risk to his daughter and I will not in these circumstances order any time to be spent with this child and the father until such time as the father can demonstrate he understands the full import and consequences of what he has done, that the Court can be satisfied he will not behave in this fashion again and that his daughter is no longer at any risk of harm. No further factors need be assessed.

48. The making of such an order is a great sadness for two reasons at least.

49. The first is that I accept wholeheartedly the child has a good time with her father, loves her father and enjoys her time with him. That was clear from the mother’s evidence. She makes no complaint.

50. Secondly, the delays in both this court and the Family Court, to where this matter will be transferred due to the complexities of the proceedings are such that it may be many, many months before the father is able have an application for time with the child, supported by appropriate evidence, as opposed to what is filed to date dealt with even on an interim basis.

1. However, my task is to make an order in a child’s best interest and the balance for me, as I see it, is the risk of harm the father poses to the child with the clear grief she will sustain and will feel from not spending time with her father. On the evidence as I see it the risk of harm to the child is the most concerning aspect of this matter. Although I accept the child will grieve for her father her mother is a competent, capable, caring parent well able to assist her daughter to deal with this break in time with her father.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 12 February 2016