SAUNDERS & BEDDOE

[2017] FamCA 634

FAMILY COURT OF AUSTRALIA

SAUNDERS & BEDDOE [2017] FamCA 634

FAMILY LAW – CHILDREN – FINAL – Where interim orders were previously made by consent which provided for the father to complete an anger management course – Where the children have spent no time with their father in almost three years – Where the father has failed to involve himself in court proceedings – Where the father failed to engage in anger management and therapeutic counselling – Where there is a history of family violence between the parties – Where the presumption of equal shared parental responsibility is rebutted –  Where the children are fearful of their father –  Where the mother has sole parental responsibility for the children – Where the children are to spend no time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Saunders

RESPONDENT: Ms Beddoe

INDEPENDENT CHILDREN’S LAWYER: Mr. C.M. Wright

FILE NUMBER: CSC 665 of 2014

DATE DELIVERED: 10 August 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 August 2017

REPRESENTATION

APPLICANT: No Appearance by or on behalf of the Applicant

SOLICITOR FOR THE RESPONDENT: Hannay Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray & Lyons Solicitors

Order

IT IS ORDERED THAT

1. Ms Beddoe (“the mother”) have sole parental responsibility in relation to major long term issues as that term is defined in the Family Law Act 1975 (Cth) for the three children B born … 2005, C born … 2008 and D born … 2010.

2. For so long as Mr Saunders (“the father”) keeps the mother informed of an email address, the mother provide the father with information about any major long term decisions she makes in relation to the children and provide him with a copy of the children’s school reports and a photograph save that the mother is permitted to redact from such documents any information that would identify the her place of residence or the children’s school.

3. The children live with the Mother.

4. The father no spend time with the children.

5. The Independent Children’s Lawyer be discharged.

6. Any remaining application be dismissed, and it is directed that this matter be removed from the list of cases awaiting trial.

7. A copy of the transcript of the reasons be prepared and provided to the parties together with a copy of this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saunders & Beddoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 665 of 2014

Mr Saunders

Applicant

And

Ms Beddoe

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties to this proceeding are Mr Saunders, whom I will refer to as the father, and Ms Beddoe, whom I will refer to as the mother.  There are competing parenting applications in relation to their three children, B, born in 2005, C, born in 2008, and D, born in 2010. 

relevant history

1. The father in the proceedings that were listed before me for a final hearing over three days in October 2016 was seeking an order that the children return to live with him in far north Queensland and spend time with the mother.  The mother was seeking, and is today seeking, a final order that the children continue to live with her in South-East Queensland and spend no time with the father.

2. The children have spent no time with the father and have had no communication with him since in or about September 2014 other than the occasion of the child inclusive conference which occurred with a family consultant, Ms E, in January of 2016.  The father commenced these proceedings in October 2014 seeking a recovery order.  The mother had held over the children after a school holiday period in 2014.  His application came before the Federal Circuit Court and his application was unsuccessful.  An order was made at that time that he spend no time with the children.

3. Thereafter, the father disengaged in the court process and failed to appear at numerous court events, including family report interviews.  As a consequence, there has been significant delay in finalising this matter.  It was listed for an undefended hearing on the 7th of September 2015, but when the father appeared on that occasion, further directions were made.  The matter was transferred to the Family Court on the 22nd of February 2016, and trial dates and directions were made on 17 June 2016, allocating the three days for trial in October 2016.  Some oral evidence was given on 24 October.  The father was cross-examined, and Ms E, the family consultant, was cross-examined.  The matter was stood over until the following day, as the parties had entered into negotiations. 

4. On 25 October 2016, I made an order by consent which provided for the mother to have sole parental responsibility for the children; that she keep the father informed as to any decisions made by her in the discharge of her sole parental responsibility and that the children live with the mother. Importantly, an order was also made that the father forthwith enrol in and successfully complete an anger management course as approved in writing by the independent children’s lawyer and therapeutic counselling with Ms F. The order went on in paragraph 5 to require the father to provide the independent children’s lawyer with written proof of his enrolment in an anger management course and therapeutic counselling within 21 days of the date of that order. 

5. The notation to the order is to the follow effect: 

   [Ms F’s] role is to address with the parties the impact of the exposure of the children to family violence and involvement in the conflictual relationship of the parties and to assist the parties to reduce the conflict between them as a result of what has occurred, with a view to reintroducing the father and work towards the family mending their relationships with reference to the issues identified by [Mr G] and [Ms E].

6. The matter comes back before me today as a result of an application filed by the independent children’s lawyer supported by an affidavit of Mr Wright, which sets out what has occurred since that order was made.  The application in a case sought that the matter be again listed for a three-day hearing on a date to be fixed, that the applicant and respondent file updating affidavits prior to the trial being assigned, and that if the father neglects to file an affidavit within 28 days, the matter be listed before a judge for an undefended hearing.

7. I indicated to Mr Wright, the independent children’s lawyer, and Mr J, who represents the mother, who was also present with him in his office for the purpose of this hearing, that given the unfortunate history of this matter and the precious nature of court time that I was not prepared to allocate further days for a trial of this matter when the father had again disengaged in the process.  He failed to appear at this hearing, and he failed to appear at other mentions since October 2016.  He has also failed to do anything required of him under the order that I made on 25 October 2016.

8. He contacted the independent children’s lawyer in February of this year to advise him that he had seen a counsellor on one occasion.  Supposedly, this was, in some way, to meet his requirement under the order, which it did not.  There has been no communication with Ms F, whose purpose was to attempt to mend the relationships between the parties, but importantly, between the children and their father.  And the father, who is, of course, the applicant in these proceedings, has done nothing to advance the matter and to advance his relationship with the children since that order.

9. It is clear from reading Ms E’s report that the children are fearful of their father.  And I note in particular that when Ms E attempted an observation session between the three children and their father, she describes the following, and I quote:

   When collecting the children from the childcare facility, [B] again expressed great reluctance to see the father.  We spoke again about safety planning and rules, with [B] eventually following [C] and [D].

   At the room, the father was seated.  [B] refused to go in, staying in the corridor.  I noted that [B] immediately started crying; tears silently rolling down her face, and where she was clenching her hands together and standing firmly against the wall.  In my opinion, [B’s] hesitation and behavioural and emotional presentation was consistent with experiencing overwhelming fear and anxiety.

   [C] and [D] both went into the room, however maintained some physical distance, with [C] standing against the wall near me and [D] remaining next to me, both opposite their father.  The father was heard to ask how they were.  [C] responded telling her father she was scared of him and she immediately started crying.  [C’s] voice and crying escalated as the father tried to tell [C] there was nothing to be scared of, and he had not done anything.  [C] repeated several times being scared of him in a loud tone of voice.  [D] moved closer to me and took firm hold of my hand.  [C] then stepped closer to me and continued crying.  The father did not respond to her again. 

   Meanwhile, [B] remained in the corridor.  She stepped closer towards me in response to some coaxing from me.  The father then turned his attention to [B], saying, “Why are you letting your mother do this?  Why are you letting this happen?”  The father’s tone of voice was accusatory, gruff and somewhat angry.  He was leaning forward in his chair, staring directly at [B].  [B] moved immediately behind me and her crying escalated in frequency and volume.

   Whilst this was occurring, [D] was standing silently, holding my hand, and constantly looks between his father, his sisters and me.  In my opinion, [D] was confused and scared by what was occurring. 

   As a result of the children’s escalating distress and the father’s manner, I made a decision to terminate the observation.  The whole process was less than two minutes in length. 

   I immediately walked the children to another room.  [B] and [C] were both crying and physically shaking.  In the room, [C] and [D] would not leave my side, whilst [B] went immediately to the window, looking outside.  [B] and [C] repeatedly stated they did not want to see their father and spoke of their fear of him.  All three children expressed fear that their father would take them today.  [D] asked if the security guards would be coming up, and the children asked if the door could be locked.

   I brought the mother into the room, and all three children went to her immediately.  She was noted to be comforting and reassuring of them.  I made arrangements for the children and mother to leave the Court immediately.  The children repeatedly asked if they would have to see their father again.  The mother was appropriate in her response, explaining about decisions being made by the judge at a later time.  The children seemed somewhat reassured by this. 

   The father reported being extremely angry and upset with what had occurred.  He felt that he had not done anything wrong, and continuously blamed the mother for the children’s presentation.  He was unable to hear feedback from me regarding the observation and the children’s presentation, including my opinion that the children were escalating in their distress.  The father continued to be fixated on his views regarding the mother, and again repeated threats of harm and physical violence towards the mother and her partner in response to the observation and the children’s behaviours.

10. In her opinion, Ms E then expressed the following things:

    I am concerned about the father’s capacity to spend time and engage with the children in light of today’s observation.  He demonstrated entrenched negative and hostile views about the mother and an inability to contain these views and attitudes when attempting to engage the children.  Unless the father is able to make considerable changes in these areas, it is unlikely that contact between him and the children will be beneficial and positive.

11. She goes on to state:

    He seemed unable to put aside adult issues and his own feelings about the mother to tend to the children’s emotional needs.  His response, in my opinion, was emotive and reactionary, where he was aggressive and accusatory towards them, particularly [B]. 

    As a result of today’s observation, it is probable these children, particularly [B] and [C], will be highly resistant to any further contact and time with their father.  Their experience of him today is likely to further entrench and support their already negative held views about him.  Furthermore, given the circumstance of this matter and the level of hostility and aggression, I would be concerned about the children being exposed to the likely conflict and violence that probably would occur during periods of handover and transitions.

12. The parties were ordered to attend upon Mr G, a very experienced psychologist.  The father failed to appear for the first set of interviews in 2015, but did attend and, to his credit, met the cost of, it seems, the time of Mr G in seeing him in the December 2015. Mr G expressed a confident opinion that in view of Mr Saunders’s presentation it is likely that he has been the perpetrator of abuse of the mother. However, he noted Mr Saunders’s adamant denial of any responsibility for his behaviours in this regard.

13. Mr G is not in a position, of course, to make actual findings of fact but I note his opinion is based on the information he received and in particular his observations and exchanges with Mr Saunders.  Mr G formed a clinical opinion that Mr Saunders has likely experienced long-standing difficulties with his capacity for emotional regulation and particularly his reactivity and propensity for acting out aggressively and escalating to violence on occasion.  He also formed the opinion that the father presented as having little insight concerning his own coping and functional challenges.  His reports of a limited social support system that is almost entirely invested in the relationship with his mother, and dismissiveness, in respect of engaging professional support, were notable.

14. At paragraph 100 of his report, Mr G says:

    Additionally, [Mr Saunders] appears committed to a scenario where the children would be involved in “the truth coming out.”  Such appear to reflect a significant investment in a win/lose outcome on his part.  In any event, his express desire for such scenario as a reasonable outcome appears, as related to his own needs; and clearly not helpful to the children.

15. At paragraph 101, he says:

    In the writer’s considered opinion, in the absence of a significant investment and commitment to his own personal responsibilities and development; including the emergence of practical, emotional regulation skills; and better understanding concerning the children’s needs, no changes to current arrangements can be reasonably considered. 

16. Mr G was unable to recommend any changes to the existing orders which at that time were that the children live with the mother and spend no time with the father. 

17. The father is 36 years of age and he was, at the time of the hearing before me in October, in receipt of sickness benefits as a result of an injury and was to undergo surgery.  He described himself at that time as a tradesman, but he had not been gainfully employed for, at that time, the last five months. He was living with his mother on a rented farm in K Town, far north Queensland.

18. The mother is 30 years of age and she is a full-time mother and in receipt of Centrelink parenting benefits.  Her income from those sources is $1800 per fortnight.  She currently lives in southeast Queensland with the children and is in a relationship with Mr L, but does not live with him. She and Mr L have a child together, M, who was born 2016.  They have been in a relationship since in or about May of 2015 and the mother describes the relationship as loving, supportive and harmonious and says that the children get along well with Mr L and refer to him as dad. Neither the father, nor Mr L, pays the mother any child support, although Mr L provides some financial assistance to the mother upon request. 

19. The mother and father commenced a relationship in 2004 and separated in or about 2011, although remained living in the same home until the father moved out in February 2013.  The father moved with the children to live with his parents in K Town.

20. In the trial that commenced before me in October, the father’s case was that the relationship he had with the mother was a volatile, unsettled and unhealthy one, but he denied the mother’s allegations of violence and contends that they were both verbally abusive to each other.  He conceded making threats of violence on occasion but denied an intention to carry out those threats. He conceded pushing her on an occasion, causing her to fall against a bus, and slapping her across the face on one occasion in response to her slapping him.  He conceded that the children had heard him calling the mother names such as “f…ing, c...”

21. The mother’s case at trial was that she was subjected to years of significant family violence involving both physical and verbal abuse and threats of death. In particular she referred to a threat made against her on 2 December 2013 in which the father allegedly said:

    Oh [Ms Beddoe], I’m not joking, man.  Take me dead serious, man.  I don’t like you and I’m going to get you when I’m ready.  [Ms Beddoe], don’t even come down here, bud, I’m dead serious.  I’m not even joking.  If I see you I will fucking rearrange you.  I am dead serious.  I’m not even about to joke with you, right.  I’m serious.  If I was with you I would fucking move somewhere that I cannot find you.  Like I said, I don’t like being used and I will fucking do what I gotta do.  Like I said, my kids are going to have a good life. 

conduct of hearing

1. I have determined to proceed with this matter on a final basis, and in the absence of the father, in circumstances where this matter has been before this Court and the Federal Circuit Court now for a number of years, and in circumstances where the father has regularly failed to involve himself in the proceedings. It is important, in my view, that there be finality for these children, and that is a matter, of course, that I must take into account, that is, the effect of continuing proceedings on the children, under division 12A of the Act. I particularly do so in circumstances of the observation made by Ms E of the children’s fear of the father as long ago as January 2016 and the complete lack of insight by the father in his dealing with the children on that occasion. I also have made the decision to proceed on this basis where the father consented to orders that he engage with anger management counselling and with therapeutic counselling with Ms F and has failed to take any steps in that regard.

2. Parenting proceedings, by their very nature, are never truly final in that if there is a significant change in circumstances, a party may bring another application before the Court and seek to persuade the Court that matters should be reopened and reconsidered, so I have taken all of those matters into account in making the decision to proceed today. 

how parenting applications are determined

1. Parenting applications are determined pursuant to the provisions of Part VII of the Family Law Act1975 (Cth) (“the Act”), which sets out the objects and principles and matters that must be considered when determined what parenting order is proper. But such considerations will focus in particular on matters raised as significant issues by the parties and the independent children’s lawyer.[1]

   [1]see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

1. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

2. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   h)parents should agree about the future parenting of their children; and

   i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes physical and sexual assault and causing a child to suffer serious psychological harm.

5. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

6. Section 61C provides that each parent has parental responsibility for a child, subject to any order made by the Court.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

conclusion

1. The children have lived with their mother permanently since September 2014.  She appears to be providing appropriate care for them in all senses and, in my view, that arrangement should continue.  These parties have no capacity to communicate or make joint decisions and, in those – and particularly given the admitted history of family violence between them, the presumption of equal shared parental responsibility has no application in this case.  And in any event, I would not regard it as being in the children’s best interests for that to occur.

2. The children, in my view, should continue to live with the mother, and I am persuaded that in this case there should be an order made for no contact given the history identified above and the evidence from Mr G and Ms E.  I am particularly persuaded by the observations of Ms E about the father’s interaction with the children at the child inclusive conference, and also of Ms E’s evidence about the statements made by the father to her about the mother subsequent to that conference. 

3. There is a history of protection orders being made in favour of the mother against the father and it is likely that one remains in place.

4. Accordingly I make the order as set out above.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 August 2017.

Associate:

Date:  23 August 2017