Seldon and Seldon

[2012] FamCA 716

FAMILY COURT OF AUSTRALIA

SELDON & SELDON [2012] FamCA 716

FAMILY LAW – CHILDREN - Undefended hearing - Principles of making an Order without notice to a party - Where the Father has failed to file material or attend hearings despite having notice of such filing directions and hearings - Where there is independent expert evidence that the Father has not complied with the recommended treatment for one of the children's psychological conditions

Family Law Act 1975 (Cth)

APPLICANT: Mr Seldon

RESPONDENT: Ms Seldon

INDEPENDENT CHILDREN’S LAWYER: Mr Kennedy

FILE NUMBER: BRC 5941 of 2011

DATE DELIVERED: 22 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 August 2012

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kennedy Spanner Lawyers

Orders

1. The Orders made in the Magistrates Court of Queensland … on 14 April 2011 be discharged.

2. D, born … January 2002, and J, born … January 2006, herein referred to as “the children”, live with the Mother.

3. The Mother have parental responsibility for the children in respect of all major long-term issues as defined in the Family Law Act 1975 (Cth) (as amended).

4. The children spend time with and communicate with the Father at all reasonable as may be agreed to between the parents, but failing agreement, as follows:

   (a)Whilst the Father is living overseas, the Father is at liberty to telephone the children each Saturday between 6.30 pm and 7.00 pm (Queensland time). The Father will initiate the call to the mobile telephone number of the Mother and the Mother will facilitate the call.

   (i)An adult supervisor is at liberty to place the telephone call on speaker and terminate the call should either the child become distressed or verbal interactions become interrogation, criticism or emotional blackmail.

   (b)Should the Father return to Australia, the Father shall spend time with the children as follows:

   (i)For a period of not more than two (2) hours each third weekend with such time to be supervised by and at the H Contact Centre at a time nominated by the Manager of the H Contact Centre. All of the costs associated with contact are to be paid by the Father.

   (ii)Should either child become distressed or verbal interactions become interrogation, criticism or emotional blackmail during the contact visit, the visit is to be terminated.

   (iii)Both parents comply in all respects with every request made by the Manager of the H Contact Centre.

   (iv)Both parties, within seven (7) days of the date of the Father notifying the Mother in writing of his return to Australia, contact the H Contact Centre (located at … and telephone number …) and do all acts and things necessary to register with the Centre and attend when required by the Centre for an intake interview.

   (c)The children are at liberty to telephone either parent at any reasonable time.

5. During the time the children are with either parent, the parent shall:

   (a)Respect the privacy of the other parent and not question the children about he personal life of the other parent;

   (b)Speak of the other parent respectfully;

   (c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

6. Neither parent shall attempt to discuss any issues in dispute between the parents with the children or allow a third party to do so.

7. Neither parent shall attempt to discuss any adult issues with the children or allow a third party to do so.

8. Both parents shall keep the other informed of a residential address and contact telephone number (either a land line, mobile telephone or both if the parent has both connected) and shall advise the other parent within forty-eight (48) hours of any change occurring.

9. Both parents shall inform the other of any significant events in the children’s life and both parents shall notify the other immediately in the case of an emergency concerning the children.

10. Each of the Mother and the Father shall communicate with each other by e-mail as is necessary for the purposes of exchanging any information relevant to the children’s education, health or welfare and not by SMS message or telephone unless the situation is urgent concerning the children’s health.

11. This Order operate as an authority for any professional care provider of the children (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parents. Should either parent seek any documentation in relation to the children (including but not limited to school notices, school reports and school photograph order forms), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.

12. The application for variation of the parenting Orders filed by the Father on 24 October 2011 be otherwise dismissed.

13. Any outstanding applications be otherwise dismissed.

14. The Father have liberty to show cause as to why these Orders should be varied or set aside.

15. The costs of and incidental to these proceedings of the Mother and the Independent Children’s Lawyer be reserved pending the Father making any application to vary these Orders pursuant to paragraph 14 of these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5941 of 2011

Mr Seldon

Applicant

And

Ms Seldon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The subject proceedings are parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning two children, namely D, born in January 2002, who is now aged 10 years and seven months, and J, born in January 2006, now aged six years seven months.

2. The Father, Mr Seldon, was born in 1962 (“the father”) and is now aged 50 years, and the Mother, Ms Seldon, was born in 1974 (“the mother”) and is thus now aged 38 years.

3. The parents commenced living together in a de facto relationship in either late February, on the Father’s version, or in March 2001. The parties married on 30 June 2006 and finally separated on 14 June 2010. The parties were divorced by Order of the Federal Magistrates Court on 12 October 2011.

4. Following their final separation in June 2010, both children continued to live with the Mother and commenced spending time with the Father every weekend from Friday until Sunday. This time occurred at the former matrimonial home until about September 2010, when the children commenced spending time with the Father at his residence.

5. As a result of an incident of domestic violence on 6 November 2010, the children ceased spending time with the Father temporarily. Thereafter, there was Family Dispute Resolution undertaken via Legal Aid Queensland, leading ultimately to Orders being made on 15 April 2011 in the Magistrates Court. Those were Orders by way of final consent Orders which provided for the children to live with the Mother and to spend time with the Father on alternate weekends and half holiday periods. Those Orders also required both parents to administer prescribed medication, which is of significance in this case, given the condition of D, which will be discussed further below.

6. Following those Orders, difficulties arose with respect to the Father administering medication to D in compliance with requirements that had been dictated by medical professionals who were treating D. It led to the position that in about July 2011, the Father withdrew his consent for D’s continued medical treatment through the Child and Youth Mental Health Service.

7. Over the period between July 2011 and September 2011, the Father was apparently refusing to provide D with his prescribed medication and, on the Mother’s version of events, D’s symptoms were thereby worsened.

8. The children attended the Father’s residence during the school holiday period in September-October 2011, and the Mother became aware at that stage that D did not take his medication. It seems that thereafter, from October to November of 2011, the Father was not providing D with his medication during visits with the Father.

9. On 24 October 2011, the Father filed an Initiating Application in the Federal Magistrates Court giving rise to these proceedings. The Father, on that application, sought a variation of the consent Orders earlier referred to. Specifically, he sought that those Orders be discharged, and, relevantly in terms of the time he would spend with the children outside of telephone contact, the Father proposed that in lieu of the alternate weekend contact, he would have face-to-face time with the children for a period of about three weeks once per year.

10. The parenting proceedings instituted by that application were transferred to this Court and, in the usual course, an Independent Children’s Lawyer was appointed to represent the interests of D and J and a Family Report was prepared by Ms T, a psychologist, and that report appears attached to her affidavit filed 6 July 2012.

11. D was assessed by Dr H, a psychiatrist, for the purpose of these proceedings, and Dr H’s report is likewise before the Court via his affidavit filed on 12 July 2012.

12. The Family Report records that the Father did not participate to the extent one would have thought an Applicant for parenting Orders would participate in pursuit of their application. Ms T noted at the outset of her report the limitations brought about by the Father’s failure to file updated material and failure to attend for an interview in that he was interviewed via his mobile phone from South America.

13. The Exhibits admitted this morning include the Exhibits that the Independent Children’s Lawyer provided to the Father’s address for service for the purpose of these proceedings both the affidavit of Ms T, to which her Family Report is attached, and the affidavit of Dr H referred to.

14. On 17 July 2012, Registrar Stoneham made trial directions in the matter and the Order of Registrar Stoneham is read before me. Relevantly, those Orders directed the filing of material for the purpose of the trial of the parenting proceedings, and included a requirement that each party file and serve by no later than 10 August 2012 the affidavit material to be relied upon. By paragraph 12 of that Order, Registrar Stoneham specifically listed the matter for a compliance mention before a Registrar on 10 August 2012.

15. Exhibit 1 in the proceedings is an e-mail provided from the office of the Independent Children’s Lawyer to the Father on 9 August 2012, being the day before the compliance hearing. That e-mail enclosed a copy of the Order made on 17 July 2012 referred to, and drew the Father’s specific attention to the fact that the matter was to be mentioned in Court the next day, namely 10 August 2012.

16. The Independent Children’s Lawyer specifically asked of the Father whether it was his intention to continue with his application. No response was forthcoming from the Father until 17 August 2012. In the meantime, he had not attended the compliance hearing referred to, nor had he filed any material in accordance with the Orders of the Court. By his e-mail reply of 17 August 2012, the Father indicated that he intended to continue with his application, and speaks of various affidavits, but does not address the question about the filing of those affidavits in accordance with the previous Orders of the Court, or how he intended to put his intention to continue his application into effect given his non-compliance with the Orders of the Court.

17. On 10 August 2012, at the compliance mention, Registrar Stoneham made further Orders, including that the matter be listed to a call-over of matters for today at 9.00 am. Specifically, that Order required the parties and their legal representatives to attend the call-over, “…in person…”. By paragraph 3 of that Order, the Respondent Mother was given liberty to seek that the matter be heard on an undefended basis. In the result, Mr Kennedy, the Independent Children’s Lawyer, and the Mother appeared before me today following that callover in circumstances where neither the Father nor any legal representative on his behalf attended at this morning’s callover, nor was the Court provided with any information by the Father as to his failure to appear at that callover or, more generally, as to his intention with respect to the subject proceedings.

18. It is on that basis that the matter was referred to me to consider whether the matter should be dealt with on an undefended basis given the Father’s non-compliance with the requirements and Orders of the Court. The Mother seeks Orders to be made on an undefended basis given the Father’s non-compliance, and the Independent Children’s Lawyer supports the making of those Orders.

19. I am satisfied on the material before me that the Father has had an ample opportunity to provide affidavit material to the Court if he wished to pursue his application and has had ample opportunity to explain to the Court, if not directly to the Court then at least via the Independent Children’s Lawyer, what he proposed to do in terms of the filing of his material and advancing his application in the face of the Orders and directions that had already been made by the Court. I am therefore satisfied that the Father has been accorded natural justice and procedural fairness in terms of having ample opportunity to advance his application and meet the case or Orders sought by the Mother and the Independent Children’s Lawyer in response to his application, but has failed to do so.

20. I am therefore satisfied that the matter ought proceed on an undefended basis and I am satisfied that, in the circumstances shortly described particularly with respect to D, that it is in the best interests of both of these children, not to mention that it is a matter of fairness to the Mother, that the matter proceed on an undefended basis.

21. I have already noted that the children have remained in the primary care of the Mother since the parties’ separation in June 2010. There is no challenge by the Father, even in his application giving rise to these proceedings, that the children should remain living primarily with the Mother. Indeed, as I have noted, his application would see a significant reduction in his time with the children compared with what was provided for in the consent Orders of 14 April 2011 in that his application seeks only limited telephone contact and a three week block period of time with the children once each year.

22. The issue of most significance in this case concerns the issues surrounding the child, D, and in particular his mental health issues, as has been assessed by numerous professionals.

23. Dr H, having assessed D, also had access to a great many medical records and Dr H expresses the opinion in his report that D has a history of long-standing rigid and anxious temperament or personality type. He has difficulty adjusting to change, and tends to worry, and at times has lost control behaviourally, probably in the context of this. Dr H assesses that D clearly had significant symptoms at the time of his presentation at mental health services in 2008, when he was six years of age, and that this is reflective in the rating scales that were then administered. Dr H assessed that D meets the diagnostic criteria for Social Anxiety Disorder, and may at times in the past have met the diagnostic criteria for Separation Anxiety Disorder.

24. Dr H assessed, “It seems to me most likely that his depressive symptoms have occurred secondarily to high levels of anxiety and stress,” and further:

    It seems most likely that he felt more and more overwhelmed in the setting of unpleasant interactions with peers at school and the breakdown of his parents’ relationship. This probably led to the crisis resulting in the episode where he tied a tie around his neck. It was very likely that his intent on doing this and other similar behaviours were somewhat unclear or ambivalent but did reflect a significant level of emotional distress. There is a significant history in him from a relatively early age of using self-harm or suicide-like behaviours in order to communicate his level of distress to others. It was extremely appropriate for Emergency Department staff to refer him to a mental health service.

25. There are, set out in the Mother’s affidavit filed 9 August 2012, detailed particulars not only of the history concerning D’s mental health, but also the history of the Father’s non-acceptance and consequent non-compliance with the requirements of D’s treatment with respect to his mental health. There is ample material before me, including the Mother’s affidavit and the reports of Ms T and Dr H, to confirm the feature that the Father is not accepting of the fact that D has or has ever had significant mental health issues, does not support the treatment or D receiving the treatment that has been prescribed to him by medical professionals, and indeed, not only is he not supportive of that treatment, he is opposed to D receiving it.

26. There is also concerning evidence before me as to the Father’s involvement of D in terms of the approach to the treatment that D obviously requires as assessed by many health professionals, including Dr H. For example, at paragraph 29 of her affidavit referred to, the Mother refers to overhearing a conversation between the Father and D early this year. The Mother there deposes hearing a conversation when the telephone was on speaker, hearing the Father say to D words to the effect, “I don’t want to talk to you until you stop lying,” and, “I do not want to talk to you until you say that you do not need your medication,” and, “You are weak. If you were strong you wouldn’t try to harm yourself,” and, “You belong with your mother because you’re a liar like she is.”

27. The fact of this matter is that, as earlier referred to, from about the age of six years, D demonstrated some concerning behaviours and concerning statements. In more recent times, D informed the Mother on 28 March 2011 that he had attempted to hang himself using a coat hanger. That led to a referral to the Child Youth Mental Health Service, and an intake with that service. On 5 April 2011, D again attempted suicide using a necktie. That involved a general medical practitioner and D being taken to the Hospital, where he was seen and assessed by a psychologist and a psychiatrist from the Mental Health Unit of that hospital.

28. In April or May of 2011, D commenced receiving medication as prescribed by a psychiatrist attached to the Child and Youth Mental Health Services, and as noted, that position continued and was extant at the time in July 2011 when the Father withdrew his consent to D receiving further medical treatment through the Child and Youth Mental Health Service. I have already referred earlier to the feature of the Father’s refusal to provide D or cause D to be administered the medication that had been prescribed for him.

29. It would seem that the Father ceased to have face-to-face time with the children from about November of last year, following an interim hearing in the Federal Magistrates Court. At that time, the Court made Orders for the children to spend time from 9.00 am until 5.00 pm each Saturday with the Father, commencing 19 November 2011. It seems the Father has not participated in the time afforded to him pursuant to those Orders. It would also seem that it is now some months since the Father has had any telephone contact with the children in accordance with the provisions of those Orders.

30. More recently, D’s treatment has continued and included admissions to hospital, at least on some three occasions, and in March of this year, there is evidence of him making a further attempt of suicide in the presence of the maternal grandmother.

1. Other evidence of the Father’s attitude with respect to D’s treatment is provided in paragraphs 54 and 55 of the Mother’s affidavit. The Mother there speaks of a time in October last year when D returned form time with the Father in an aggressive and agitated state. The Mother describes D as pacing the house and yelling, “Dad and Ms N [a reference to the Father’s current partner] said I don’t need to take my medication, it is poison.”

2. Ms T refers in her report to the dichotomy between the Father advancing to her the proposition that there is, in effect, nothing wrong with D or no mental health issue in truth that he confronts, but nevertheless that D potentially presents some risk to his sister, J. Ms T specifically notes at paragraph 32 of her report correspondence apparently prepared by the Father. She there refers that in that letter, on the one hand, the Father provides the view that any reports of self-harm by D are the direct result of the Mother instructing D of what to say, and not because there is any truth in the report, but on the other hand, the Father talking about concerns with respect to the safety of J given that D has, on a number of occasions, talked about how he wants to kill her.

3. Ms T further notes that the Father alludes to the notion that it is the Mother’s behaviour towards D that must be the source of any adverse behaviour expressed by D. Ms T refers, at paragraph 33 of her report with respect to that letter that the Father suggests that D “…has been consistently lying with respect to his mental health and that he is proud of his ability to lie and deceive others.”

4. Part VII of the Act provides the statutory framework in which this Court exercises its power to make parenting Orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved.

5. Section 60CA of the Act requires that in deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration, and s 60CC of the Act identifies the primary considerations and the additional considerations the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled, or failed to fulfil, responsibilities as a parent in the particular respects identified in s 60CC(4).

6. Section 65D of the Act provides the source of the Court’s power to make a parenting Order as defined in s 64B. Section 65D(1) expressly provides that the power to make a parenting Order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, that presumption does not apply in circumstances of abuse or family violence and, further, 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.[1]

   [1] See s 61DA(4).

7. Relevantly to this case, in particular, s 60CC(2)(b) provides that a primary consideration for a Court in determining a child’s best interests is, “…the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” I find that D has properly been assessed by Dr H, amongst others, as having, in truth, a significant mental health condition which needs to be addressed, including by medication. There is ample evidence before me that the Father is, as already noted, not only not supportive of D receiving treatment, but suggests that D does not in truth suffer any mental health condition and that his behaviour is entirely the product of the influence of the Mother. It goes without saying that in circumstances where the Father maintains that view of the world, there is a need to protect D from the potential harm that might be caused from being exposed to his father’s views and, in particular, not being provided with the appropriate medical treatment or medication he needs at any time he was in the Father’s care.

8. Whilst the question of a meaningful relationship between the children and both of their parents may, to some extent, be in doubt likewise by reason of the Father’s attitude towards D’s mental health, the reality in this case is that it is the Father himself who, by his original Initiating Application, sought to limit the time actually spent with the children to a three-week block period each year, and otherwise to have telephone contact. Of more significance perhaps is the fact that the Father has chosen not to avail himself of the time facilitated by interim Orders made in these proceedings prior to final determination of his application. As earlier noted, the Father has not availed himself of face-to-face time with the children since late last year and he ceased telephone contact in about March of this year.

9. There is concerning evidence reflected in the Family Report of Ms T in terms of the statements the children have made to her, particularly D, that the children feel to some extent rejected by their father or abandoned by him, and on occasions have refused to speak to him on the limited times when he has sought to have telephone contact. It is passing strange in this matter that the Mother was not informed, and thus the children were not informed, that the Father left for South America. On the Mother’s evidence, she only discovered this, essentially by default, and it is unclear to all concerned as to how long the Father intends to remain in South America or whether he intends to return at all.

10. Clearly, what I have already said is relevant to a number of the considerations set out as additional considerations expressed in s 60CC(3) of the Act. In particular, there must now be questions about the nature of the relationship of each of the children with their father and there are questions about the capacity of the Father to provide for the needs of the children, including their emotional and intellectual needs, particularly as regards the Father’s attitude towards D and his health.

11. Likewise, the behaviours of the Father to which I have referred impact upon the assessment that can be made of his attitude to D and to the responsibilities of parenthood demonstrated by the Father towards D, and indeed towards both children. I find that the Father has demonstrated a poor attitude in terms of the responsibilities of his parenthood given not only his attitude towards D’s health and the requirement for treatment, but also the extent to which he has withdrawn from having contact and time with the children.

12. No-one could read the reports of Ms T or Dr H, much less a parent, and be less than concerned about the Father’s choice to limit his communication with his children and, in particular, D, given the matters which D confronts and the potential impact of the separation of his parents upon D’s condition.

13. Section 60CC(4) requires the Court to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil parental responsibilities. Plainly enough, the Mother has borne the share of responsibility for parenting these two children and has had to fulfil not only her own responsibility, but also that of the Father, particularly in recent times with respect to the parenting of the children.

14. Dr H, in his report, records the further therapeutic recommendations for D as involving both psychological therapy for D’s anxiety disorder and a continued regime of treatment via medication.

15. In respect of parenting recommendations, Dr H says this:

    My recommendations around parenting are based on my assessment of [D] and my view regarding his best interests in terms of his mental health and development. His father’s expressed attitude at interview is extremely concerning. He appears to have no understanding of the emotional effects that his denial of his son’s distress might have on his son. He also appears (sic) have no insight into any emotional effect his choice to be absent from his son’s life might have on his son. He appears to have interfered with his son receiving effective mental health treatment in the past. I would recommend that the Court remove the father’s ability to interfere with mental health treatment of [D]. I recommend the contact between the father and [D] be highly structured, with an adult present to intervene should verbal interactions again become interrogation, criticism or emotional blackmail as previously admitted by the father. Ideally, the father and [D] can develop a warm and supportive relationship in the future within a protected structure (at least initially).

16. I accept the opinions expressed by Dr H. In particular, I find that there is an evidentiary basis for the opinion that the Father’s expressed attitude is of concern. I find that the Father lacks an understanding of the emotional effects that his denial of D’s distress might have upon D. I find that the Father lacks insight into any emotional effect his choice to be absent from D’s life might have on D. I find that the Father has, in fact, interfered with D receiving effective mental health treatment in the past, as is evidenced by his withdrawal of consent for D to receive treatment form the Child and Youth mental Health Service.

17. I accept that it is necessary in D’s best interests and to protect D that any time between the Father and D be supervised (the reference by Dr H to being highly structured, “…with an adult present to intervene should verbal interactions again become interrogation, criticism or emotional blackmail as previously admitted by the Father.”).

18. Having regard to the matters referred to and in particular the opinions of Dr H, which I accept, I find that the best interests of both children, but in particular, D, results in a rebuttal of any presumption that it is in their best interests for there to be equal shared parental responsibility. Whilst the Father maintains his current attitude, both with respect to D’s needs for treatment and his attitude with respect to his involvement in the children’s lives, I find that it is in their best interests that the Mother have sole parental responsibility.

19. In circumstances where the presumption is rebutted on a best interests finding, it is unnecessary to consider either equal time Orders or substantial and significant time Orders and indeed, such Orders are not in any event sought by the Father.

20. I find that the Orders proposed by the Mother, supported as they are by the Independent Children’s Lawyer, are in the best interests of these children and I make Orders in terms of the Orders set out in the Minutes of Orders sought by the Mother in her Case Information Document filed 9 August 2012.

21. In addition to those Orders, I will make an Order, in circumstances where, as already noted, the Father has not appeared today, for the Father to have the ability to show cause why the Orders that I have made should be varied or set aside.

22. As regards the Mother’s proposed Order for the Father to pay her costs, I find that the Orders in place did have to be varied in any event. I will reserve the Mother’s and the Independent Children’s Lawyer’s costs in the event that the Father seeks to bring an application to show cause or re-open these proceedings.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 August 2012.

Associate: 

Date:  23 August 2012