Shoretsky & Shoretsky (No 2)

FAMILY COURT OF AUSTRALIA

SHORETSKY & SHORETSKY (NO 2)

[2015] FamCA 1026

FAMILY LAW – Final orders – parenting – father's application to spend time – mother does not appear or oppose application – primary and additional consideration – mental illness – parenting capacity – application dismissed

APPLICANT:

Mr Shoretsky

RESPONDENT:

Ms Shoretsky

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

390

2013

ORDERS MADE:

21 August 2015

DATE DELIVERED:

24 November 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In Person (with the assistance of an interpreter)

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

The mother have sole parental responsibility for the children B born … 2000, C born … 2004 and D born … 2005 (“the children”).
The children reside with the mother or as the mother directs.
There be no order for time to be spent between the children and the father.
The independent children’s lawyer be at liberty to serve a copy of this Order on the Proper Officer of any school attended by the children and upon the Proper Officer of the Department of Health and Human Services.
All extant applications be otherwise dismissed.
My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.
The order for the appointment of the independent children’s lawyer be discharged.
That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shoretsky & Shoretsky (No 2) 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

FILE NUMBER: MLC 390 of 2013

Mr Shoretsky

Applicant

And

Ms Shoretsky

Respondent

REASONS FOR JUDGMENT

Introduction

On 21 August 2015, I made parenting orders in relation to the children B born in 2000, C born in 2004 and D born in 2005 (“the children”) and reserved my reasons to be published at a later date. These are those reasons.
The father was self-represented at the hearing; he was assisted in court by an interpreter.
The mother did not attend the hearing and did not give an explanation as to why she was not able to be present.
The father seeks time with the children. The mother does not formally oppose time between the father and the children. There are current intervention orders in favour of the mother which I will detail at [20] of these reasons.
The court had the assistance of a psychiatric report prepared by Associate Professor Y, three family reports prepared by Dr M a family consultant, a report from the Department of Health and Human Services, and a psychiatric report prepared by Dr G. Dr G’s report was only made available to the court on the day of the hearing. It was commissioned by Victoria Legal Aid on behalf of the father. It was read by the applicant father with the assistance of his interpreter, and the Independent Children’s lawyer. These reports were not tested by cross-examination; neither the father nor the Independent Children’s Lawyer sought to cross examine the experts. I have regard for their evidence being tested.
The issues in dispute, as described by Dr Ms in the Family Report on 13 April 2015 are:
a)the father’s parenting capacity;
b)the stability of the father’s mental health;
c)the father’s capacity to spend time with the children.
Dr Ms identified the following additional issues during assessment:
a)the father’s incapacity due to his mental illness;
b)the mother’s limited cognitive capacity;
c)allegations of family violence by the father toward the mother and children
I agree with Dr M’s summary of issues.
I have decided to dismiss the father’s application.
In summary, based on the evidence before me, the father demonstrates lack of insight and awareness for the responsibility he should have in regard to his own mental state. He refuses to take medication to treat his disability despite apparent advice to the contrary. He has been diagnosed on two occasions by two separate psychiatrists as needing medication for mental illness but confirmed that he is not taking medication. I am inclined to believe he will continue to have the symptoms of delusional and disjointed thought.
In summary, his inability to take responsibility for the impact of his behaviour and the consequences of his actions to those around him, including the alleged domestic violence that has resulted in intervention orders, leads me to conclude that the children are at risk of psychological and physical harm. Considering the best interests of the children the father’s submission for spending time with them must at this time, fail. For the avoidance of doubt, I have had regard to the presumption that it is in the best interests of children for parents to share parental responsibility equally but I am satisfied, by virtue of abuse by the father to the mother and the children, and in accordance with s61DA(2) that the presumption does not apply.

Evidence

At the hearing the applicant father relied upon the following evidence:
a)The report from Associate Professor Y, dated 4 November 2013 annexed to his affidavit filed on 22 January 2013. (“Psychiatric Report”)
b)His affidavit of 17 June 2015
c)Report of Dr G, dated 18 August 2015
Dr G’s report came to hand on the day of the hearing and the provision of it had been the subject of an earlier adjournment on 24 July 2015.
Other than a Notice of Address for Service, the mother has not filed any material in these proceedings.
The materials and evidence relied on by the independent children’s lawyer were as follows:-
a)The report from Associate Professor Y, dated 4 November 2012 annexed to the father’s affidavit filed on 22 January 2013.
a)Family Report of Dr M, dated 13 November 2013 (“November Report”)
b)Family Report of Dr M, dated 13 March 2015 (“March Report”)
c)Annexure to Family Report of Dr M, dated 14 April 2015 (“April Report”)
d)The Report of Mr J from the Department of Health and Human Services written on 27 May 2015 (“DHHS Report”).
e)Report of Dr G, dated 18 August 2015
f)Outline of Case filed 20 April 2015

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these reasons, a statement of fact is a finding of fact.

Relevant Background

The parents were married in 1988 and moved to Brisbane. The parties separated on 26 May 2011. The father has not spent time with the children since the separation on 26 May 2011, a period of four years and almost three months at the time of the hearing.
There are five children of the marriage, two adults: Ms A aged 25 and Mr I aged 23. The three children who are the subject of this proceeding are B aged fifteen, C aged eleven; and D who is ten years old.
Mr I and the two youngest children live with their mother. Ms A lives in Queensland. According to the DHHS Report B has left school and is currently living with relatives in Brisbane.
In 2003 the father sustained injuries at work when he fell off a ladder g. He was left paralysed for four months and was cared for by the mother. In 2009, the family moved back to Melbourne from Brisbane. Shortly thereafter, the father was involved in a serious, almost fatal, motor accident. The loss of his van left him unable to continue his work and he had no income to purchase another vehicle.
In September 2011 the father consented, without admission, to an Intervention Order due to family violence, in favour of the mother at the Magistrate’s Court in Suburb Z, and again in November 2012 at the Magistrate’s Court in Suburb E. Intervention orders remain in place.

The Parties’ Proposals

In the father’s initiating application filed 22 January 2013 he was seeking the following final orders:
a)that he and the mother have equal shared parental responsibility for the three children;
b)that the children live with their mother;
c)that the children spend time and communicate with the father as follows:
i)each alternate Sunday from 10 am until 6 pm;
ii)each Christmas day for a period of four hours as agreed between the parties and failing agreement from 2 pm until 6 pm;
iii)On Father’s Day from 10 am until 6 pm;
iv)On the Father’s birthday and the children’s birthday from 3.30 pm until 6.30 pm;
v)By telephone each Wednesday from 4 pm until 5 pm.
d)That changeovers occur at a place as agreed between the parties;
e)That the parties are hereby restrained from exposing the children to conflict during changeovers and shall limit their communication to greetings only;
f)Each party shall immediately notify the other by telephone of any serious medical treatment required by the child;
g)The father be at liberty to attend all school functions, social and sporting activities to which parents are normally invited to attend, including any parent/teacher interviews;
h)This order shall act as an authority authorising the father to receive any school notifications, newsletters copies of reports, photo application forms and notices, at his expense, if any;
i)This order shall act as an authority with respect to the release of any medical information concerning the children by any health insurance provider and in the even the health service provider seeks a specific authority from the mother before the release of information to the father, the mother provide such an authority as soon as practicable;
j)The parties, their servants and/or agents be and are hereby restrained by injunction from discussing or allowing third persons in their presence to discuss with the children the court proceedings and in particular, any of the allegations raised therein;
k)The parties, their servants and/or agents be and are hereby restrained by injunction from denigrating the other party or their family in the presence or hearing the children and from allowing anyone else to do so in their presence or hearing.
In the father’s affidavit, sworn 17 June 2015 he seeks to spend time with the children. According to the Family Report dated 13 March 2015 the father suggested he was willing to spend supervised time with the children for an initial period until the children were confident to spend time with him at his home.[1]
[1] Family Report, Child Dispute Services, 13 March 2015, [5(d)] 6 (“March Report”).
The mother has not filed any documents for these proceedings. Her attitude towards the father’s proposals at the initial social science assessment in November 2013 was:[2]
a)that she have sole parenting responsibility for the children;
b)that the children live with her;
c)that the Father’s time with the children be reserved.
[2] Family Report, Child Dispute Services, 4 November 2013, [5] 4-5 (“November Report”).
The Independent Children’s Lawyer sought orders to give effect to the recommendations contained in the March 2015 Report, namely:
a)that the mother have sole parenting responsibility for the three children;
b)that the children live with their mother;
c)that there be no Order for the children to spend time with their Father;
d)that the children be referred for counselling at their school;
e)that the Independent Children’s Lawyer have liberty to serve a copy of any Orders made upon the Principal of the school attended by the children;
f)that all extant applications be dismissed.

Procedural History

The father initiated these proceedings in the Federal Circuit Court by filing an application on 22 January 2013 seeking to spend time with the children. The mother was required to file a response within seven days which she never did.
Judge Connolly in the Federal Circuit Court dealt with this matter on a number of occasions. He ordered the appointment of an Independent Children’s Lawyer which was most appropriate.
In September 2013, the mother was ordered to attend a mediation conference with Victoria Legal Aid and a family report was ordered. In this report the family consultant, Dr M, raised concerns about the father’s mental health and the impact of family violence on the mother and children.
The case was transferred to this Court on 28 January 2014 by Judge Connolly who noted the father’s “capacity” to conduct the litigation was “somewhat uncertain and it may be appropriate for a litigation guardian to be appointed”.
No interim application was made by either party.
Previous interim orders had been made by consent between the parties for the children to live with the mother and for both parents to enrol at a contact centre.
Both parties appeared unrepresented on 16 April 2014 before Justice Cronin. The father had brought an application to expedite the proceedings to a first day hearing before a judge. The mother explained that she had not filed a response because of her responsibilities for the children and because she had to care for her mother who suffered dementia. She said she was too busy. She was ordered to file a response by 2 May 2014.
The father’s application was refused on Justice Cronin’s view that
the type of orders being pursued by the husband seem unrealistic and that much more needs to be done by him to address the issues in the family report. Those are matters that go to the question of the priority that this case be given. Absent some specific change in the husband’s position supported by evidence, the prospect of time with the children is not looking hopeful. There is therefore not so much urgency about a court case but rather about the husband getting his health and understanding his obligations towards his children right.[3]
[3] Reasons for Judgment, Shoretsky & Shoretsky, MLC 390 of 2013, [19] (Cronin J).
His Honour noted that the children seemed settled and that there was no evidence of them wanting a relationship with him. He noted the concerns expressed by Dr M in her report dated 4 November 2013 of significant family violence and that she believed the mother was protecting the children. Dr M described the children as “ambivalent” toward their father which she attributed as reflective of emotional harm to them. She also gave a poor prognosis in relation to the father’s mental health. This was untested evidence at the time.
These proceedings came before me on the 29 October 2014. The mother failed to appear but the Court contacted her by telephone and she participated in the hearing. I referred the matter to a Round Table Dispute Management Conference. I authorised the Independent Children’s Lawyer to provide Victoria Legal Aid with all the relevant documentation including the family reports and other reports from professionals. The proceedings were adjourned to a date to be fixed following the Round Table Dispute Management Conference after which the matter was to be listed for mention before me. My Associate received a letter, dated 13 November 2014, from the independent children’s lawyer advising that the mother had refused to take part in the Dispute Management Conference and requesting that the matter be listed for mention before me. A mention was subsequently listed before me 11 December 2104. The mother was participating when the orders were specified.
At the 29 October 2014 hearing I noted that unless the father provided better evidence of his psychiatric health than what he currently had, the prospect of him being successful and obtaining supervised time did not look good. I also noted that there was no evidence to suggest that the father’s condition had improved or to indicate that the psychiatrist’s assessment no longer applied. My reasons are reported at [2014] FamCA 1028. I hereby incorporate those reasons into these reasons. I noted that:
The risk the father runs is that if he does not have evidence that supports his application, his application will fail.
The father was not represented by a lawyer at the hearing on 29 October 2014. Notably Dr H, the father’s general practitioner, advised him he would benefit from obtaining legal advice as to how to approach the application.
At the request of the Court an independent social science assessment was ordered on 11 December 2014 and a Family Report completed on 13 March 2015 by Dr M a Family Consultant. The mother failed to attend the report assessment. Dr M noted
[18] The purpose of this assessment was to review the parties’ progress and also to ascertain [the mother’s] views given that she did not participate in the previous assessment. It is concerning that the mother did not attend this session, and given these circumstances, this assessment is limited to the interview with the father …
On 25 March 2015 the Court ordered an addendum to the Family Report in relation to the information obtainable from the schools at which the children attend. The addendum report was completed by Dr M on the 15 April 2015. The father appeared at the hearing on the 25 March 2015 but the mother did not. A copy of the Order was sent to the mother at her residential address or her address for service.
The proceedings were listed before Justice Thornton for a two day trial on 23 April 2015. On that day the father appeared in person but the mother failed or neglected to attend Court. Her Honour refused the father’s oral application for interim orders that the children spend time with him. The trial was adjourned to a two day matter on 18 August 2015 and Orders given that the evidence in chief of all witnesses be provided by affidavit. The mother was sent a copy of her Honour’s order specifying the adjourned date.
In her detailed Reasons for Judgment, delivered 15 May 2015, Thornton J adjourned the proceedings until further information could be determined about the father’s current metal state; the whereabouts of the eldest daughter; and that more information be provided on the views of the children.[4] Her honour stated:
The primary consideration of whether there is any risk in the children spending time with the father, questions of the relevance of family violence and the additional considerations which include examining the views of the children cannot be undertaken in a vacuum of information.[5]
[4] Reasons for Judgment, [2015] FamCa 991, delivered 15 May 2015 (Thornton J).
[5] Ibid [67].
Her Honour noted that “[c]rucial to these considerations is a finding about the father’s mental health which needs to be made on a final basis”.[6] This she noted would be relevant in considering the “father’s capacity to provide for the emotional needs of the children and whether there would be any risk to the children spending time with him”.[7]
[6] Ibid [58].
[7] Ibid [61].
Her Honour went on to consider the lack of evidence surrounding the making of the intervention order which had been untested, recognising that the first report by Dr M referred to abusive behaviour by the father, a history of family violence and a deterioration of the father’s mental state which posed a risk to the mother and the children.

With limited available information about the children, including the fact that the 15 year old’s whereabouts was unknown, and the 11 year old’s attendance at school had been fleeting, her Honour adjourned the proceedings until the Department of Health and Human Services (“DHHS”) could provide a report of their investigations.
The DHHS Report has now been provided to the Court and is annexed to the father’s affidavit in support of his application, sworn on the 17 June 2015.
The father filed an Application in a Case on 22 June 2015 seeking an urgent court hearing, and seeking orders to have time with the children. The matter was transferred to me for hearing on 24 July 2015.
At the hearing of 24 July 2105 I made orders that the father be furnished with a copy of a letter from Victoria Legal Aid (Exhibit C 1) confirming funding for the father’s further psychiatric assessment with Dr G; and that relevant documents to these proceedings be sent to Dr G for preparation of his final report.
The proceedings came before me for final hearing on 21 August 2015. The father appeared but the mother did not. I am satisfied that the mother had notice of the proceedings. I dealt with the matter on an unopposed basis.
I am satisfied that the mother was accorded procedural fairness in these proceedings.

Conduct of the Proceedings

These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.
The principles for conducting child related proceedings, which I observed, are as follows:-[8]
(a)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(b)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
(c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence
(d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties
(e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[8] Family Law Act 1975 (Cth) s 69ZN.
Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence,[9] cross examination,[10] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:
a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and
b)The court may exclude or limit the use of evidence which is relevant and thus admissible if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-
i)          be unfairly prejudicial to a party;[11] or
ii)        be misleading or confusing;[12] or
iii)       cause or result in undue waste of time.[13]
[9] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[10] With the exception of s 41 relating to improper questions.
[11] Evidence Act1995 (Cth) s 135(a).
[12] Evidence Act1995 (Cth) s 135(b).
[13] Evidence Act1995 (Cth) s 135(c).
The general duties[14] and the general duties and powers relating to evidence[15] expand the court’s role in the regulation of child related proceedings.
[14] Family Law Act 1975 (Cth) s 69ZQ.
[15] Family Law Act 1975 (Cth) s 69ZX.
As these proceedings were commenced prior to the Family Law Legislation Amendment (Family Violence and Other Measures) reforms to the Family Law Act 1975 (Cth) came into effect, those parts of the current Act do not apply to these proceedings.
This case was not conducted as the father would have liked. On more than one occasion he asked for the mother to be forced to come to Court. I declined to make any order to that effect. The father also pressed for time with the children so that he could demonstrate that he is no risk to them. I made clear to the father that time or communication would only be orders as result of my consideration of the matter and not as an experiment to be conducted along the way.
I am satisfied that the case was conducted in such a way as to promote an outcome which would be in the children’s best interests.
It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard it.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws so that laws and actions affecting children put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account..
I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.
Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the court can make such parenting order as it thinks proper.

Determining the child’s best interests

In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence –
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[16]
[16] Family Law Act 1975 (Cth) s 60CC(2)(b).
In this case both of the primary considerations are relevant.
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the father and the children by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both parents is going to be beneficial and of advantage to the children into the future.

The father’s parenting capacity, the stability of the father’s mental health and his capacity to spend time with the children

In terms of my assessment of whether a meaningful relationship with the father is of benefit to the children, or any of them, I consider the father’s mental health and his parenting capacity.
The father’s affidavit of 22 January 2013 annexes reports about his mental health. The father relies in this hearing on the evidence in the Psychiatric Report.
In his report, A/Prof Y was of the opinion that the father “suffers from chronic paranoid schizophrenia [and] there had been a recent exacerbation of that psychotic illness”.[17]
[17] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, 8.
He referred to the father as “evasive, guarded, rigid and controlling and out of touch with reality. He persistently had difficulty changing his mental set”. He stated that the father was “not able to reflect, or stand back and give thoughtful consideration as to why the marriage had dissolved and Intervention Order taken out against him. That is, he is not insightful”.[18]
[18] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, 8.
A/Prof Y’s Report states the following in relation to the father’s parental capacity:
Your client’s parental ability is impaired because of mental illness. His ability to adapt to the changing needs of his children, to protect them and to instruct them is impaired because of his mistaken paranoid beliefs. Your client’s mistaken beliefs pervade his view of the world. He is unable to separate reality from his irrational thoughts.[19]
[19] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, [83] 9.
This assessment was further supported in the Family Report by Dr M dated 4 November 2013. Dr M noted the father showed signs of “significant mental illness … He presented with no insight into his abusive behaviour and the impact it had on his family’. She went on to say, ‘The Father’s alleged history of violence and his present denial of the concerns raise concerns about his ability to spend time with his children”.
Associate Professor Y referred to the father as having a psychotic condition and preoccupied by the wrong doing of others. Associate Professor Y stated that the father believes he is subject to conspiracy and surveillance and that as the “the psychotic symptoms pervade his thinking, … his paranoid beliefs will flavour his instructions [to his solicitor] and he will not be able to instruct [his solicitor] in a rational way, or be able to consider appropriate legal advice …”[20]
[20] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, 8.
Associate Professor Y noted the father was not a risk to self or others, nor did he require immediate involuntary care as there was no evidence he met all five criteria under s 8 of the Mental Health Act 1986 (Vic). He was of the view that the father would require “compulsory treatment only in circumstances where there is a further exacerbation of his psychotic condition giving rise to immediate and significant … deterioration in his mental health”.[21]
[21] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, 9.
In terms of whether the children would be at risk when spending time with the father, Associate Professor Y reported: [22]
… there is no, in my opinion, imminent or foreseeable physical risk to the children. The risk, in my opinion, is for the long term progressive deterioration in his mental health leading to alienation and isolation from his family and society. The risk to the children, in my opinion, is not about their physical health; rather it is the risk that they will be subject to the father’s mistaken beliefs and irrational ideas, thus leading to a distorted view of their family and their environment.
… there is the potential that a paranoid person will be argumentative, stubborn, rigid and unyielding in their belief systems and may be critical, angry and dismissive of those other persons, which may include the children, who do not agree with their mistaken beliefs.
[22] Psychiatric Assessment and Report, by Associate Professor Y, dated 14 November 2012, [83] 9.
This evidence was corroborated in the more recent report by Dr G, dated 18 August 2015. He notes:[23]
[The father] suffers from chronic paranoid schizophrenia which is an ongoing illness of a permanent nature. I am unable to assess whether there has been any improvement in his condition since being assessed by [Professor Y]. My assessment appears to be similar to his. He is insightless and out of touch with reality. He is unable to connect any of his own actions with circumstances that have brought about an astringent (sic) from his family and an intervention order. He seems too happy to accept without question that these things have happened to him without him playing any part in bringing them about. To this extent his mental capacity is impaired and he is unable to give his legal representative instructions by virtue of his disturbed thinking. He denied any current psychiatric care, saying that he is on no medication. He requires regular reviews by a psychiatrist and an antipsychotic medication to treat his illness.
[23] Report of Dr G, dated 18 August 2015.
I accept the expert opinions of Associate Professor Y and Dr G. I am satisfied that the father’s capacity to parent the children, or event to spend time with them (or any of them), is seriously compromised by his mental illness.

Family violence

The second of the primary considerations also recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term ‘abuse’ is defined in s 4(c) of the Act as ‘causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence’.
‘Family violence’ is defined as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[24] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances.
[24] Family Law Act 1975 (Cth) s 4AB(1)
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by the children to physical or psychological harm and formulate orders which protect them from that harm.
In relation to the risk of, and exposure to, abuse and family violence, Dr M notes:[25]
[The father’s] controlling manner, paranoid ideation, lack of insight and disregard for authority raises concerns about the predictability of his behaviour when with the children. The allegations of domestic violence by the Mother and the children are contradictory to his denial of the violence. … According to the Mother’s and the children’s accounts the violence committed was not a single event but was characterised by a pattern of controlling and domineering behaviour. The potency of the violence was dangerous with allegations of ongoing acts of violence toward the children. The Father’s current stalking behaviour has been persistent and by his own admission has continued since the final separation as he acknowledged that he has visited the children at their school and did not perceive that his actions were inappropriate.
According to the family’s disclosures, the dynamics of domestic violence in this family were volatile and dangerous and the Mother needs to be supported in her endeavours to protect the children from future harm. … The seriousness of the domestic violence requires the highest protective mechanism particulalry (sic) given that the Father’s prognosis with his mental illness is poor.
[25] Family Report, Dr M, 4 November 2013, [47] p17.

The mother’s parenting capacity

The mother is the children’s primary caregiver. She also cares for her mother who lives with them.
The mother has not participated in these proceedings and has provided no affidavit material in support of her application. She has not given reasons for failing to appear.
She failed to attend appointments with the children to be interviewed by the family consultant and did not participate in the Round Table Dispute Management Conference ordered by this Court. The only involvement she has had in a meaningful way is when she attended upon Dr M in November 2013 with the two younger children, in the context of Dr M preparing a family report.
In her November Report, Dr M notes that the mother “presented as a co-operative and passive person who appeared to have limited cognitive functioning with functional living skills”.
Dr M notes in her evaluation of the mother that
[Her] allegations are consistent with the cycle of family violence with the Mother separating after escalated conflict and reuniting when the Father promised to change. The circumstances had been compounded by the Mother’s vulnerabilities due to her apparent limited cognitive functioning, indicated by her vague recollection of historical details and her limited responsiveness to the children’s need for counselling.
The April Report notes that according to the principal “the mother does not attend school that often but is responsive when contacted. The mother is always supportive of the school’s input but does not appear capable of managing her children’s behaviours”.[26]
[26] April Report [2] 4
The DHHS report confirmed the mother’s reluctance to access support services to assist with the chronic school non-attendance of the eldest daughter. Instead she preferred to continue challenging the behaviour and attempting to enforce expectations.[27]
[27] DHHS Report, 2.
The Independent Children’s Lawyer submitted that DHHS have indicated they have no current protective involvement, except they believe it would be in the interests of the children and the mother to attend upon Child FIRST, a counselling agency, as “the most appropriate course of action … to support the family to address some of the issues raised”[28] in regards to school absenteeism..
[28] DHHS Report, 3.

The Independent Children’s Lawyer submitted that from “the reasons one can glean from the first family report” the mother is “genuinely struggling in the care of the children”. However, he goes on to say that
[Dr M] is clearly of the view that contact with the children with their father would not be in the children’s best interests. It would subject them to, firstly, contact with a person who is irrational, …. who has irrational belief systems, who is suffering from a chronic, ongoing and permanent, it seems, mental health disability, paranoid schizophrenia. He’s a person at this time who is not seeking to treat that disability with any medication. He has told the court on a number of occasions and appears to be saying the same to [Dr G] that he does not need treatment, and whilst he remains in that state it could not in any way be seen as being in the best interests of these children to be subjected to his presence in any fashion.

Treatment of the other additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that they are protected from harm and exposure to abuse, neglect or family violence.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[29]
[29] B and B: Family Law Reform Act (1997) FLC 92-755.
I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
Ms A’s attendance at school is poor and was recently moved from K School to L School in Suburb N, for a “fresh start”. D regularly attends K School and is described as good in school and achieves to the levels expected of his age. The school expressed no concerns in regards D.[30] Dr M noted in the April Report that “[t]he school praise [D] for his attendance at school and are aware that he attends of his own volition.”[31]
[30] DHHS Report
[31] April Report [1] 4.
The dominant features of this case are the impact of the father’s mental illness on the father’s parenting capacity, a need to keep the children emotionally safe and the mother’s parenting capacity. I do not regard cultural considerations to play a significant role in this case.
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The requirement to focus on the child’s views, as opposed to wishes, means that I have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum[32] that consideration of the children’s views will:-
allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[33]
However, consideration of a child’s views does not exclude consideration of a child’s wishes.
[32] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[33] Ibid [56].
Once a child's views are ascertained, the court is required to consider them in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare. This process was is described by the Full Court in R v R (in relation to children’s wishes) as follows:-
[42] … the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[54] … There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[34] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[35] and I do so.
[34] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[35] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
The mother has failed to make the children available to the family consultant or the Independent Children’s lawyer to determine their views since 2013.
Two of the children were interviewed by the family consultant in 2013. The eldest child, B, has never been interviewed by the family report writer or the Independent Children’s Lawyer and her views are unknown.
The independent children’s lawyer relied on the evidence presented in the family reports prepared by Dr M.
In the November Report, Dr M notes:[36]
The children conveyed consistent accounts of their Father’s diminished capacity to parent which was characterised by his absence in their relationship and by his abusive behaviour. Each child separately recalled experiences of physical and emotional abuse. The children’s emotional responses were ones of fear and intimidation and were adamant that they did not want any contact with their Father. There was some ambivalence from the children regarding their allegiance to their Father. This dynamic is reflective of the emotional harm caused by family violence, when children grappling with the hope of a positive parent figure and the harm inflicted by the abusive parent.
[36] November Family Report [48] 17-18.
Both DHHS and Dr M have given accounts of significant absenteeism at school by B and C. D attends school on his own volition.
In 2014 B missed a considerable amount of school and is now repeating year 9. Her attendance in 2015 remains very poor. Dr M notes in her April Report that “the mother had advised the school that [B] had gone to Queensland and did not know when she would be returning”.[37]
[37] April Report, [6].
C’s attendance at school remains poor even though she has moved from K School and enrolled in L School. The Assistant Principal, Dr P visited the home a couple of times and brought C to school, however, she generally refused to attend at all. When she attended school, she was attentive and progressed well academically.[38]
[38] April Report [3].
Mr J from DHHS writes that the ‘the family first became known to Child Protection 26^th March 2015 following chronic school non-attendance of 15 year old [B]” and again on 14^th April 2015. He notes:[39]
It was reported that the poor attendance appeared to relate back to issues in 2013 between the mother and fathers (sic) difficulties around contact. It was reported that; when the mother took custody of the children, the father would present at school requesting to see the children without any rights to do so. School were aware of Intervention Orders being in place due to Family Violence. It was reported that school attendance was not an issue with the children prior to this.
It was also reported that during this time, as well as presenting at school inappropriately, the father was believed to have been following the mother home and it was suggested that these events were traumatic and the Children may have been impacted upon as a result.
It was reported that [C’s] attendance decreased significantly following these events, and it was suggested that she may have been worried that Dad would come to school.
[39] DHHS report, page 2 and 3.
I am of the view that it is most unlikely that the children want to see their father. Ordinarily, I would ask a family consultant to explain the outcome of this case to the children. However, as there has been no participation by the children since 2013, it is not appropriate to disturb them.
In determining what is in the best interests of the child I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
Pursuant to s60CC(3)(1) I give consideration to the fact that parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
I am satisfied that very little is likely to change in this case. The children will remain disinterested or averse to spending time or communicating with the father, the mother will not support a relationship between the father and the children and the father’s mental illness will remain untreated and continue to seriously impair any capacity he may have to relate to the children in a constructive way or in a manner consistent with their individual interests.
These proceedings should be concluded now and the same or any similar application should not be agitated by the father absent a significant change in one or more of the factors I have described in the preceding paragraph.
Section 61DA provides that when making a parenting order[40], I must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child.
[40] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[41] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
[41] Family Law Act 1975 (Cth) s 61B.
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
I accept the evidence concerning family violence. I am satisfied that the father has engaged in abuse of the children and the mother. I am also satisfied that the mother and father have absolutely no ability to communicate and will not be able to develop any such ability into the future.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[42] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[43] and to ‘make a genuine effort to come to a joint decision about that issue’.[44] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[42] Family Law Act 1975 (Cth) s 65DAC(2).
[43] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[44] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[45] or abuse of the child or another child who is a member of the parent’s family;[46]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[47] or;
c)Where evidence is adduced, upon which the court is satisfied 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.[48]
[45] Family Law Act 1975 (Cth) s 61DA(2)(b).
[46] Family Law Act 1975 (Cth) s 61DA(2)(a).
[47] Family Law Act 1975 (Cth) s 61DA(3).
[48] Family Law Act 1975 (Cth) s 61DA(4).
In this case as outlined in Dr M’s November 2013 and March 2015 family reports, the mother and children conveyed a history of family violence and other abusive behaviour such as withholding the children from school. These allegations of extensive family violence are characterised by a pattern of controlling and domineering behaviour and intervention orders are in place. Expert psychiatric assessments from Associate Professor Y in November 2013 and Dr G in August 2015 detail serious concerns regarding the capacity of the father to spend time with the children that will not put the children at risk due to mental illness and an inability to connect any of his own actions with his current circumstances.
Taking all of the above considerations into account I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for the children.
By virtue of having determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interest of the children or reasonably practicable for the children to spend equal or substantial and significant time with each of the parents.

Conclusion

For the above reasons, I am satisfied that the Order set at the commencement of these reasons is in the best interests of each of the children.
I do not expect the father to agree with the outcome of these proceedings. It may assist the father to provide these reasons to any doctor or counsellor upon whom he attends for treatment. For the avoidance of doubt, dissemination of these reasons to treating professionals of the father and/or the children is not prohibited. This is a sad case but I am satisfied that the outcome which I have ordered is the only outcome which is consistent with the interests of the children.

I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 November 2015.

Legal Associate:

Date: 24 November 2015

[2015] FamCA 1026

24 November 2015

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