THORBURN & AHERN

[2018] FCCA 2975

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORBURN & AHERN [2018] FCCA 2975

Catchwords:
FAMILY LAW – Parenting – father suffering from acquired brain injury and personality disorder – drug use – alcohol abuse – parenting capacity impaired – unacceptable risk to the children – father has foregone time with children – children’s wishes considered – sole parental responsibility in favour of mother – father to spend supervised time with children.

Legislation:

Family Law Act 1975, s.60CC(3)

Applicant: MS THORBURN

Respondent: MR AHERN

File Number: MLC 10550 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 4 October 2018

Date of Last Submission: 4 October 2018

Delivered at: Melbourne

Delivered on: 24 October 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Respondent: In person

Solicitors for the Respondent: None

Counsel for the Independent Children's Lawyer: Mr C Ham

Solicitors for the Independent Children's Lawyer: McKean Park Lawyers

ORDERS

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the children [X] born 2008 and [Y] born 2011.

3. The children live with the mother.

4. The children spend time with the father on no more than four occasions each calendar year, on a supervised basis at Berry Street Suburb A (“children’s contact service”), at such times, dates and places as are nominated by the director of the children’s contact service.

5. For the purposes of the children’s contact with the father pursuant to order 4 hereof the parents comply with all reasonable directions of the director of the children’s contact service, including participation in any further intake procedures and the father be responsible for the cost of the supervised time.

6. The children communicate with the father as follows –

   (a)by way of the father forwarding to the children letters, gifts, and cards for each of the children’s birthdays, Easter, Christmas and other milestones and/or special occasions at a post office box address nominated by the mother pursuant to these orders;

   (b)the children are at liberty to write to the father from time to time, and the mother facilitate the forwarding to the father any communication prepared from him by the children;

   (c)within 14 days the mother notify the father by post and email of a post office box address to which the father may send communications pursuant to these orders; and

   (d)in the event the father forwards letters, gifts or cards to the children, the mother be permitted to open the communications to satisfy herself that the content is appropriate for the children, and unless there is a reasonable objection to the content, pass the letter, gift or card onto the children.

7. The mother forward to the father copies of the children’s school reports and school photographs within 14 days of receiving them and for the purposes of this order –

   (a)the mother may redact any information which may identify the school attended by the children before forwarding any reports or photographs; and

   (b)if the photographs cannot be properly redacted, then the mother is excused from forwarding the photograph.

8. The respondent is restrained from seeking or obtaining the applicant’s details without the applicant’s consent, save for the purposes of order 6 hereof.

9. The independent children’s lawyer is permitted to provide a copy of these orders and any reasons to the father’s (omitted) workers. 

10. The appointment of the independent children’s lawyer is discharged.

11. All extant parenting applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10550 of 2015

MS THORBURN

Applicant

And

MR AHERN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 4 October 2018 I made orders in the nature of parenting orders set out in the commencement of these reasons and agreed to give the parties reasons in due course.  These are my reasons. 

2. On 11 November 2015 the mother commenced this proceeding for parenting orders in respect of two children, [X] born in 2008 and [Y] born in 2011.  Her application also canvassed orders for the division of property.  When I heard this proceeding on 4 October 2018 the parties agreed that I should deal with property issues on the papers without further appearance.

3. On 4 October 2018 Mr Ham of counsel appeared for the independent children’s lawyer.  Very helpfully, he compiled submissions that addressed the nature of the litigation, a chronology and procedural history, the relevant principles under the Family Law Act (“Act”) and he formulated a collection of orders urged by the independent children’s lawyer.  With one minor variation, the mother agreed with the orders that were volunteered by Mr Ham, except for the amount of time the children should spend with the father.  The mother said the father should have no time on the basis that he remained an ongoing risk to the children and that she was unwilling or unable to pay for supervised time.

4. This case has had a lamentable history.  Part of that is to be explained on the basis that at all relevant times the respondent has been affected by the consequences of an acquired brain injury and throughout, he has appeared without legal assistance.  A sensible and efficient approach to the case was thereby compromised despite any number of orders made by me and the chief judge of this court to regularise the proceeding and to otherwise present it efficiently.

5. On 4 October 2018, the applicant appeared in person as did the respondent and Mr Ham appeared representing the independent children’s lawyer.  Mr Ham informed me that the litigation guardian that I appointed pursuant to my orders made 15 March 2018 had applied to be removed as litigation guardian by reason of threats of physical violence made by the respondent towards the litigation guardian and by reason of the fact that the respondent was unwilling or unable to pay the litigation guardian’s costs.  I acceded to the request for the discharge of the litigation guardian.  The case then continued with the applicant and the respondent unrepresented.

6. Mr Ham quite properly submitted that I should adjourn the proceeding yet again to enable further enquiries to be made of Victoria Legal Aid for the possible appointment of yet another legal representative for the respondent.  After debate, it became apparent that the respondent wished this case to proceed. 

7. The maternal grandfather participated in the hearing before me on 4 October 2018, standing next to his daughter.  When the suggestion of yet a further adjournment emerged, the applicant’s father exploded in anger, shouted abuse to everyone in the court including abuse towards Mr Ham and the respondent and to me, such that I directed security officers in the court to physically restrain the maternal grandfather and to remove him from the court and within the hearing of the court, which was done under his violent protest.  That lawless behaviour may have been an expression of frustration but it was utterly unacceptable conduct for a mature adult.  He was fortunate to not have been dealt with for contempt of court.

8. The case proceeded.

9. The applicant and the independent children’s lawyer were at odds only in respect of the time the children should spend with the applicant.  The independent children’s lawyer contended that the children should have time with the respondent under strictly supervised circumstances at the respondent’s costs.  The independent children’s lawyer contended that the respondent should have no more than four contact visits a year having regard to the considerable risks associated with the respondent's violent behaviour and his unstable personality which I was told had been occasioned following his acquired brain injury.  The respondent protested that he was unable to afford the costs of any supervised time with the children.  As result, I have acceded to the request of the independent children’s lawyer to confer upon the father time under supervised circumstances at the father’s costs.  If the father is unable or unwilling to meet the costs of the facility at which supervised time is to take place, then it will follow that the father will have no time with the children.

Some further detail

1. The father is a little over 52 years of age.  The mother is around 28 years of age.  Over 20 years ago the father sustained an acquired brain injury in a motor vehicle accident.  Thereafter he has received TAC benefits.  According to one psychological assessment undertaken in June 2001, the father had severe cognitive impairment with anger and withdrawal, limited insight, poor learning skills, poor memory and he was unable to work.

2. The applicant and the respondent met in or around 2007.  That date was disputed.  The mother contended that they met and formed a de facto relationship between 2007 and January 2014.  The father contended that at no stage did the parties share a de facto relationship and that for a very short term the applicant rented the father’s property.  Since 2016 the father has lived an itinerant lifestyle on the streets of Melbourne campaigning for a permit for him to keep a pet ram on his property.

3. In January 2014 the applicant and the respondent separated.  Thereafter the children have been living with the mother and intermittently spending time with the father.  In August 2015 the children stopped spending time with the father by reason of the father’s abuse of alcohol.  Neither the applicant nor the respondent have subsequently re-partnered.  The applicant mother identifies as aboriginal.

4. Family violence and abuse assumed a high degree of importance in this case.  In several of the interlocutory appearances in this case the respondent conducted himself in an agitated and uncompromising manner.  According to the family consultant who prepared a family report dated 21 February 2018, the children were exposed to family violence on a regular basis, a matter denied by the father.  The father denied alcohol abuse or the use of illicit substances.  The father acknowledged smoking marijuana with a view to managing chronic pain.  According to the family consultant the father’s acquired brain injury impacts upon his capacity to properly parent his children.

5. Correctly in my view, the family report writer identified there to be three issues for resolution in this case.  The first was the time the children spend with the father and whether ongoing supervision was required.  The second was whether the parents should have equal shared parental responsibility.  The third was the impact of the father’s acquired brain injury on his capacity to adequately parent the children including acting protectively.

6. As is apparent from the orders made, in my view an unacceptable risk presents itself in this case as a consequence of the father’s acquired brain injury.  He appears to be unable to manage his own affairs and those of the children in a manner to be expected when an order for equal shared parental responsibility is conferred.  On the other hand, the mother has demonstrated a capacity to care for the children and thereby promote their best interests in such a way that they appeared to be doing well. 

7. The independent children’s lawyer has been involved in this case since April 2016.  That has been useful because of the complete absence of communication between the applicant and the respondent since January 2014.

8. The independent children’s lawyer contended that it was appropriate in the circumstances of this case to make an order for sole parental responsibility of the children in favour of the mother.  I agree.  Aside from the father’s personality disorders as result of the acquired brain injury, he behaves erratically and has demonstrated very little insight into his parenting obligations.  His participation in this proceeding was intermittent and unhelpful.  I observed his behaviour in court many times.  It was readily apparent that he lacked the skills and maturity required to parent his children.

9. In addition, family violence issues predominated my concern in this case.  Further, the father admits to ongoing use of marijuana that he says is for therapeutic purposes.  He challenged the suggestion that he abused alcohol.  I preferred the mother’s version of the evidence on that point.

10. I agree with the contention of the independent children’s lawyer that the father’s presentation is unlikely to change.  He is likely to continue to have anger issues, volatile personality outbursts and he will also likely to continue with his lack of insight into parenting.  As his daughters get older, that is likely to be very problematic.  The risk continues.  Steps must be taken to ameliorate the risk.  The eldest daughter recently indicated to the family consultant that she does not wish to see the father.  The youngest daughter does not wish to spend time with the father either.  While their wishes are important, they are by no means determinative.  A judge in my shoes must act protectively where risk factors exist.  I am convinced that there are there is an abundance of risk associated with the father’s time with the children.  The only proper method of managing that risk is to impose supervised time.  If the father is unwilling or unable to meet the costs associated with that then I am not willing to allow his time with the children to proceed on an unsupervised basis.  It seemed to me that Berry Street Suburb A supervisory facility is the best venue.  Whilst expensive, there did not appear to be a viable option from family members.

11. Sole parental responsibility in favour of the mother is the best outcome, it seemed to me.  The children have lived with the mother for all of their days.  The father has had periodic time with them.  The eldest daughter is reluctant to spend time with the father and the youngest daughter will be exposed to the father's personality defects and his absence of parenting insight in any contact that she may have with him so it is incumbent upon me to make adequate provision for her protection.  Supervised time is the only feasible way for his time but the mother should have sole parental responsibility for the children. 

12. In making the observations set out above, I have considered all of the subsections of s 60CC(3) of the Act. It must be recognised that the father has foregone a great deal of time that he could have spent with the children as result of his campaigning. It must also be recognised that risk factors that I have identified above are unlikely to change nor are they likely to be controlled or ameliorated to any significant degree. In those circumstances, whilst I recognise that in the usual course of events children should have equal time with each of their parents so that a meaningful relationship can be fostered with both parents, in this case the risks predominated to such an extent that the respondents prospects of obtaining an order for equal shared parental responsibility or even unsupervised time with his children are negated. As the children grow older they will, if they are interested to do so, search out the father in order to spend time with him. If they do not harbour that wish then they will not search him out.

13. The information from the family report writer indicated that the respondent has bedevilled the applicant for her residential details for some time.  That is inappropriate.  The applicant asked for an order ensuring that her details were not released to the respondent.  It seemed to me to be appropriate in the circumstances that I make such an order.

14. In separate reasons I will explain the division of property that I propose to make in this case.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     24 October 2018