Schach & Birrell (No. 2)

[2009] FamCA 293

FAMILY COURT OF AUSTRALIA

SCHACH & BIRRELL (NO. 2) [2009] FamCA 293

FAMILY LAW – PRACTICE AND PROCEDURE – long running proceedings – where the father has failed to file a parenting questionnaire or attend a child-responsive program interview – where the father has filed a Notice of Discontinuance – matter to proceed on an undefended basis

FAMILY LAW – CHILDREN – parental responsibility – presumption of equal shared parental responsibility rebutted

FAMILY LAW – CHILDREN – with whom a child should spend time and communicate – whether the child spending time and communicating with the father will assist in a meaningful relationship – where there is a need to protect the child from psychological harm – consideration of s 60CC factors – orders made in terms proposed by the mother

Family Law Act 1975 (Cth) ss 60CC & 61DA

APPLICANT: Mr Schach

RESPONDENT: Ms Birrell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 5060 of 2008

DATE DELIVERED: 6 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Ms A. Du Barry

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr O.M. Keen

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Alderman Redman Lawyers and Mediators

Orders

1. Final orders are made in terms of the minutes this day signed by me.

2. Remove all matters from the pending list.

3. The appointment of the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5060  of 2008

MR SCHACH

Applicant

And

MS BIRRELL

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I propose to proceed to hear the matter today on an undefended basis.  There are significant reasons why I should do so.  Several of them are as follows:

   (i)the age of the matter, having commenced in October 2006 as part of proceedings which have been ongoing since August 2002; 

   (ii)this has to proceed in the context that the child of the parties was born in June 2002 and it appears that, except for the occasional month here or there, the proceedings have been going most of her life.  I cannot see that that is in any way something which would be considered, in the normal course of events, to be likely to promote the best interests of the child.  Rather, I think it runs the risk of significant harm to the child having the parents involved in ongoing proceedings concerning her welfare for that period of time.

2. The proceedings that are currently before the Court commenced in October 2006 in the Federal Magistrates Court.  Numerous documents were filed, orders made and steps taken, when the matter was then listed for trial in the Federal Magistrates Court in December 2008.  When it came on for trial, it was then transferred to the Family Court of Australia.  Since then there have been further preliminary steps taken in relation to procedural matters and interim orders made, with the matter prepared for final hearing in this Court.

3. The resolution of the final hearing in the matter was further delayed by an application brought by the father alleging a contravention of orders.  That matter was heard before Justice Strickland in February of this year.  His reasons were delivered on 24 March 2009.

4. The parties were ordered to file parenting questionnaires in preparation for a first day of hearing.  I note from the file that the mother filed her parenting questionnaire on 12 March 2009.  The father has not filed a parenting questionnaire.  I am informed by counsel for the mother that the father was served with a copy of the mother's parenting questionnaire and a document by way of case outline, which is headed “Case for the Mother” a copy of which was filed in Court on 18 March 2009.  I am told that the father has received these documents, being sent by post to him on 19 March 2009 by letter from the mother's solicitors.

5. At the further directions hearings, Registrar Dore, quite appropriately, ordered that the mother file and serve an Amended Response setting out the orders that she sought, although those orders sought by the mother were already contained in the document headed “Case for the Mother”.  The mother has since filed an Amended Response on 1 April 2009 but that has not been served on the father.

6. The father was aware that the matter was listed before the Court for a first day of hearing today.  He did not attend, nor did he attend upon the Family Consultant who was preparing the children-parents' issues assessment report.

7. When considering whether to proceed on an undefended basis, it is necessary to ensure that justice is done to both parties.  It is appropriate to consider that in this case the mother has not strictly complied with the orders of the Registrar.  However, the father has been on notice for a considerable period of time about the orders which the mother sought in relation to the child and has nonetheless chosen not to file his parenting questionnaire, not to attend to the child-responsive program interview and has filed a Notice of Discontinuance.

8. The Notice of Discontinuance filed by the father on 17 March 2009 (document 10) was filed by the father in person.  He discontinues his Application for Final Orders and, on part of the document, says:

   “Be it on this Court's head that they are father-hating, corrupt and abusive to dads and their children and should be ashamed.  They have let the mother abuse, lie, perjer [sic] herself and risk my daughter's life.  You should be ashamed.  God forgive your father-hating system.”

9. That is signed by the father and indicates to me that the father does not wish to participate any further in these proceedings in the Family Court.

10. Weighing up all of the factors and, in particular, the need to do justice to both parties, I am satisfied that it is appropriate to continue to hear the matter on an undefended basis today.  I do that on the basis that it would not be in the interests of the mother or the child to further prolong the proceedings, given the indication by the father, both by the filing of a Notice of Discontinuance and also from the material contained in the Notice of Discontinuance, that he does not wish to participate in the Family Court proceedings any more.

11. I will accede to the Independent Children’s Lawyer's request for some evidence to be given by the Family Consultant Dr A.

12. This is a matter which relates to the welfare of the child of the parties, who was born in June 2002.  The child is therefore only six years of age.

13. It appears from the Federal Magistrates Court file that there have been proceedings on and off in the Federal Magistrates Court and, more recently, in the Family Court of Australia concerning the child since shortly after her birth.  There have been some periods when there has been a hiatus or gap in the litigation but there are a substantial number of documents on the five volumes of files before me which indicate that it is of concern to the Court that the child’s family has been involved in litigation most of her life.

14. I have previously given reasons this morning for a decision to proceed to hear this matter on an undefended basis and now proceed to give my reasons in relation to the final orders I propose to make.

15. Even though this matter is now undefended and the father has discontinued his proceedings, it is necessary for the Court to give consideration to the provisions of Part VII of the Family Law Act and determine that the orders which the Court proposes to make are in the best interests of the child.

16. In that regard, the first obligation of the Court is to consider that the orders which are made take into account the best interests of the child as the paramount consideration. 

17. Section 61DA of the Family Law Act1975 (Cth) indicates that there is a presumption to be applied that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. In that section there are subsections which provide that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence. There is also provision in the subsections for the Court to consider that it would not be appropriate in the circumstances for the presumption to be applied when making interim orders. However, this is a final order which is being considered.

18. Subsection (4) of section 61DA provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

19. The evidence which is before me today from the mother indicates that there have been considerable difficulties in communication between the parties and specifically in communication between the parties about matters concerning the child. The father has in the past unilaterally taken a decision without consulting the mother about changing the arrangements for the child.  I also have before me evidence of correspondence and computer communications which indicate that the father has been argumentative and abusive towards the mother.  There is also information before the Court concerning the father's current attitude towards the child, his responsibilities as a father and his attitude towards the mother, which indicates that there are serious questions as to the ability of the father to participate in a meaningful and useful way in communications with the father about the welfare of the child.

20. I am satisfied on the material before me, therefore, that the presumption of equal shared parental responsibility is rebutted.

21. I turn, therefore, to consider the other necessary factors relating to the amount of time a parent should spend with a child and the form of communication that should take place between the parent and the child. To that extent, the provisions of section 60CC direct the Court to consider factors in the best interests of the child.

22. The primary considerations that are most relevant in this matter are section 60CC(2)(a) and (b), which provide that the Court must consider the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from harm.

23. In this case I have before me the affidavit material of the mother and have been referred to the affidavit of Mr F, which was filed in the Federal Magistrates Court in June 2007, to which is annexed the psychologist's report.  I also had the benefit today of hearing the evidence of the Family Consultant Dr A, who was present in Court when submissions were made and who has had the opportunity to read through the exhibits and affidavit material relevant to the decisions I have to make.

24. This is one of those exceptional circumstances where the Court has to consider what is in fact a meaningful relationship between the child and the father.  The recent evidence concerning the behaviour of the father and his attitude call into question whether it would be appropriate for there to be regular communication because of the risk that spending time with or communicating with the father would not assist the child in having a meaningful relationship.  Rather, it would more likely lead to a relationship which was one that would not be helpful for the child.

25. It is also relevant to consider the need to protect the child from psychological harm in relation to protecting her from the ill-considered behaviour of the father.  In that regard, I refer to the recent attempts at communication between the father and the child and the distress that has apparently caused her.

26. All of these matters need to be seen in the context of the history of the matter and, in particular, the proceedings which are currently before the Court which commenced in the Federal Magistrates Court in October 2006, at which time there had obviously already been previous orders.  In October 2006 the father was seeking an order that the child live alternate weeks with him and the intervening weeks with the mother.  He sought other particular orders of an ancillary nature.

27. In support of those proceedings, there has been considerable material filed until the matter was listed for hearing in the Federal Magistrates Court in December 2008 and then transferred to this Court.

28. In November of 2008 the father was directed to file an application setting out the particulars of the orders that he sought.  He did not file any further Amended Application for final orders but, rather, filed an Application in a Case and Contravention proceedings.

29. The matter before me today needs to be seen in the context of what purports to be an application filed by the father, being the Application in a Case filed on 3 December 2008.  That Application in a Case related to orders that he sought for the disqualification of FM Mead and for the transfer of the proceedings from the Federal Magistrates Court to the Family Court.

30. The document attached to that application is some 19 paragraphs of closely‑typed small print, in which the father also seeks the removal of the Independent Children’s Lawyer.  The attitude of the father needs to take into account this document, which is also the same document which is annexed to his affidavit that was filed on that day.

31. It is clear that the father believes that he has not received justice from the Federal Magistrates Court and that the father believed that there were difficulties in relation to FM Mead, the Independent Children’s Lawyer and what could be described as the Family Law system generally.  That attitude is again displayed in the Notice of Discontinuance which the father filed in this Court on 17 March 2009, in which he said:

    “Be it on this Court's head that they are father-hating, corrupt and abusive to dads and their children and should be ashamed.  They have let the mother abuse, lie, perjer [sic] herself and risk my daughter's life.  You should be ashamed.  God forgive your father-hating system.”

32. Those documents and that attitude also need to be seen in the context of the exhibits which I have received today, being Exhibit 1 tendered by the mother's counsel and Exhibit 2 provided by the Independent Children’s Lawyer's counsel, being various documents.  The significant ones are the correspondence written by the father and the medical certificates, including references to the father's mental health.

33. To put the matter in some context, I have referred counsel to the affidavit of the father which was prepared in September 2007, when the father appeared to be represented by solicitors in the Federal Magistrates Court.  In paragraphs 75 to 78 inclusive, he refers to his past illnesses and, in particular, refers to an admission to hospital for stress-related complications in paragraph 76.  He then says in paragraph 77:

    “I was diagnosed as having a personality disorder.  There was no absolute diagnosis of any other disorder, only mention of a probable bipolar disorder and delusional disorder, which is not conclusive.  I have followed the doctor's orders and recommendations and have not experienced any further or other symptoms since 1997.”

34. Exhibit 2 provided by the Independent Children’s Lawyer refers to diagnoses in 1997 but also of a period when the father was given a medical certificate indicating he was unfit for work from November 2005 to January 2006 on the basis of anxiety/depression.  There is also a letter from the B Medical Practice of 24 January 2006, which refers to the father and indicates:

    “Overall, he did seem to have symptoms of adjustment disorder with depressed mood.  However, I wonder if he has some underlying personality trait.”

35. The letter then suggests that the father was given the names of two psychiatrists, as the doctor believed he needed a psychiatrist's rather than a psychologist's assessment.  There is therefore an inconsistency between that information in 2005-2006 and the father's affidavit of September 2007, which refers only to much earlier times.

36. The material in the mother's affidavit refers to the abuse by the father in relation to his more recent dealings by way of computer communication with the mother and daughter.  There is also the email of October 2008 from the father to FM Mead's Associate, which I will not quote;  (it is some length) but clearly indicates the father's limited capacity to understand matters concerning the best interests of the child and communicating with others.  It also calls into question his capacity to behave in a reasonable fashion.

37. All of those matters need to be taken into account when considering the need to protect the child and balance her needs in relation to a relationship with the father.

38. In relation to the additional considerations under section 60CC, the child’s age makes it appropriate to exercise care when taking into account her views. However, taking into account her young age, it is nonetheless clear that she has expressed concern about the ongoing communication with her father and that it upsets her. Given her age, I will not place a great deal of weight on the expression of her wishes but have noted them.

39. The nature of the relationship between the child and each of the child's parents is a significant matter.  At this stage, I am not convinced that the evidence indicates that there is an appropriate relationship between the father and the child.  Rather, it appears that the child appears to be the focus of the father's concern only so far as it relates to his anger towards the mother and his mistrust of the Court systems, be it the Federal Magistrates Court or the Family Court of Australia.

40. The relationship between the mother and the child has been in place for a considerable period of time and, notwithstanding the report of Mr F, I am satisfied that the mother has taken appropriate steps to provide for the care of the child.  I say “notwithstanding the report of Mr F” because Mr F’s report was prepared in 2007.  That was at a time before the more recent behaviours of the father were known to the Court and at a time before the father decided to leave Australia and travel to live in New Zealand for a period of approximately 11 months. The weight to be given, therefore, to the opinions of Mr F is reduced.

41. I take into account paragraph (c), which is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  That willingness of the mother has to be seen in the context of the father's past behaviour and her obligation as a mother to protect the child from emotional or psychological harm.  The mother proposes that the father communicate with the child by way of an exchange of letters and presents from time to time.  The other evidence concerning the father's behaviour and concerns about the protection of the child satisfy me that she has an appropriate willingness in that regard.

42. In relation to the likely effect of a change in circumstances, including separation from either of her parents, I have heard the evidence today of Dr A, which indicates that, in an ideal world, an ongoing and frequent relationship between the child and each of her parents would be appropriate.  However, the factors in this particular matter indicate that it would not necessarily be in the child’s best interests to have regular time spent with the father.  It appears that when he filed his Notice of Discontinuance he was living in Adelaide.  The mother remains resident in W, some distance from Adelaide.  There would therefore be practical difficulties in a regular ongoing relationship which encompasses the factors in subsection (e) as well as those in subsection (d).

1. One of the significant factors is the capacity of each of the child's parents to provide for the needs, including the emotional and intellectual needs, of the child.  I have heard the evidence of Dr A, which I accept, and I have viewed the various documents.  It appears that there may be a concern about the father's capacity, due to issues concerning his mental health, to provide appropriately for the child in any way.

2. I incorporate what I have said in relation to subsections (c) and (f) - the significant factors which deal with the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents - but also refer to the correspondence in Exhibits 1 and 2 and the Notice of Discontinuance of the father and his Application in a Case filed in December 2008, which seem to indicate that the father has an inability to consider the needs of the child as the most significant factor.  His attitude to these proceedings calls into question his attitude towards his responsibilities as a parent.

3. In relation to the questions of family violence in (j) and (k), the evidence has been of some difficulties between the parties and ongoing circumstances which could be described as confrontations.  The risk to the child by the father attending at the child's school and generally behaving in a confrontational way make it in the best interests of the child that there be injunctions preventing that behaviour so that the child's welfare is the paramount consideration.

4. I have taken into account all of the factors in section 60CC and, having already indicated I am satisfied that the presumption of equal shared parenting does not apply, I am satisfied that the orders which the mother now seeks are orders which are in the best interests of the child, bearing in mind the father's discontinuance of these proceedings, the behaviour of the father and the attitude of the father throughout these proceedings (not necessarily limited to his behaviour in leaving Australia and travelling for up to 11 months to New Zealand in the middle of these proceedings).

5. I did ask the mother's counsel whether the communication from the father should be communication which was vetted by the mother.  I am assured that the relationship between the child and the mother is such that the mother is satisfied that the child would bring to her attention any inappropriate matter in the communications or presents from the father.

6. I therefore make final orders in terms of the minutes this day signed by me but to include an order dismissing all proceedings and removing all matters from the pending list.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  21 April 2009