WEST & WEST

[2016] FamCAFC 238

FAMILY COURT OF AUSTRALIA

WEST & WEST [2016] FamCAFC 238

FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – where the father appeals orders precluding him from having time or communicating with his children – where no error established – appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – application by the father seeking provision of the transcript – application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA and 117(1)

APPELLANT: Mr West

RESPONDENT: Ms West

INDEPENDENT CHILDREN’S LAWYER: Mr Terrence Newman

FILE NUMBER: CSC 609 of 2014

APPEAL NUMBER: NA 79 of 2015

DATE DELIVERED: 10 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Murphy & Kent JJ

HEARING DATE: 10 November 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 October 2015

LOWER COURT MNC: [2015] FamCA 839

REPRESENTATION

THE APPELLANT: In person by Videolink

COUNSEL FOR THE RESPONDENT: Ms McArdle of Counsel

SOLICITOR FOR THE RESPONDENT: Williams Family Law & Self Rep Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Newman Family Law

Orders

1. The application in an appeal filed by the father on 13 May 2016 be dismissed.

2. The Appeal be dismissed.

3. Each party to the appeal including the Independent Children’s Lawyer bear their own costs.

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

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

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 79 of 2015
File Number: CSC 609 of 2014

Mr West

Appellant

And

Ms West

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

1. The father of three children, B, aged 16, C, aged 14, and D, aged six, appeals orders made by Tree J on 8 October 2015 that preclude the father from having any time with or communicating with his children. In addition, his Honour granted injunctions which, for example, restrain the father from “harassing, molesting or stalking the mother and/or the children” and “spending time with or attempting to contact or approach the children”.

2. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) include specifically s 60B(1)(a) which provides that the best interests of children are to be met by “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”. It can be appreciated, then, that orders of the type made by his Honour might be seen as unusual or exceptional.

3. His Honour recognised as much, saying at [100] of the reasons:

   Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable…

4. However, as that passage indicates, crucial to his Honour’s orders is the application of the remaining objects of the Act contained within s 60B, which provide, among other things, that children’s best interests are met by “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” and “ensuring that children receive adequate and proper parenting” from their parent (emphasis added).

5. It is both convenient and important that these reasons, which seek to explain why I am of the view that no appellable error is demonstrated and that his Honour’s decision was plainly correct, start by quoting from the commencement of the trial judge’s reasons for judgment. Those passages are also relevant to the father’s continual refrain before us that there was “no evidence whatsoever” for his Honour’s findings and orders. That submission is plainly wrong and should immediately be rejected. Crucially, at [5] of the reasons his Honour said this:

   Unsurprisingly, [the father] was diagnosed by [a reporting psychiatrist] who assessed him for the purposes of these proceedings, as suffering a paranoid psychotic disorder that has been long lasting and is untreatable. In his cross-examination of [that doctor], the father did not directly challenge that diagnosis, but appeared to suggest that [the doctor] was part of a conspiracy to persecute alleged Christians such as himself, perhaps as part of the father’s broader view that feminism is the “State religion” of Australia.

6. As will be seen, his Honour’s references there to “conspiracy” and “feminism” have resonance in submissions that were made before us this morning. The father’s florid and extraordinary conduct during the trial was itself evidence that founded his Honour’s concerns about the potential of harm to the children. His Honour’s reasons commence:

   1. [The father] believes that he is a prophet personally called by God to be a spokesperson against government generally, and the Family Court in particular, for the genocide which he believes they perpetrate against children. He believes that the government has placed him on a hit list to eliminate him from the world. He believes that the police force is designed to effect social engineering and to destroy families. He believes that the whole purpose of these Family Court proceedings was to kill him and to destroy his children’s lives.

   2.It appears as though virtually all of the father’s life, at least in recent years, has been devoted to his prophetic calling. He has been in almost constant battle with many authorities, mostly governmental. In those disputes he is prone to making outrageous, menacing accusations, coupled with highly personalised attacks.

   3.His conduct in these Family Court proceedings were a telling illustration. It may fairly be said that the six days over which the trial of this matter spanned were as torrid and hostile as litigation in this court gets. There were highly personalised attacks by the father on virtually all of the witnesses (including his own mother) and the lawyers involved in these proceedings. I was no exception. Amongst a steady stream of personal abuse, the father referred to me as a “criminal”, “terrorist”[1] and colourfully told me that “there is not a bone in your body worth burying.” Later in the proceedings he told me that “there will be a large crowd on the day when you hang” or something similar.

   4.The father was virtually uncontrollable in the courtroom. He refused to take his cap off, stand when speaking to me or cross-examining witnesses, or stop speaking over me. Ultimately his behaviour became so intolerable that I directed that he continue his involvement in the proceedings from a second courtroom, linked to the main courtroom via video link. That was necessary to ensure that his otherwise incessant interruptions could be overcome by muting the microphone at his end when the need arose. However that did not stop him from a virtually non-stop – although from the main courtroom, silent – tirade against whoever was then speaking. On the final day of trial, presumably as some sort of visual protest, he commenced to tear up material that he had brought with him and which he had placed on the bar table. Even accepting that self-represented litigants in this court often are under enormous personal strain, and hence can behave poorly, it has to be said that the father was a truly remarkable litigant.

   [1]His Honour’s reasons contain the following footnote at this point: “Although I accept that at my request and after adjourning the court to allow the father to reflect on his comments, he withdrew the accusations of ‘criminal’ and ‘terrorist’.”

7. As will be seen, some at least of what his Honour there refers to was again evident in the hearing before us this morning, in particular the father’s continual references to “Mr Tree” (meaning the trial judge).

8. The father’s grounds of appeal should be quoted and are as follows:

   1. The principle of equal shared parental responsibility was not applied and was not sufficiently rebutted based on the evidence. The Court did not exercise its proper discretion when applying this principle.

   2. The Court did not apply the principle of ensuring that the children have the benefit of both their parents having a meaningful involvement in their lives. The Court disregarded the objects set out under Section 60B(1)(a) of the Family Law Act 1975 - that being namely that the children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. The Court disregarded any evidence presented to them that supported the fact that the Appellant has a meaningful relationship with the children.

   3. The Court disregarded the principles set out in Section 60B(2) of the Family Law Act 1975 - that being that 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.

   4. The Court disregarded the principles set out in Section 60B(2) of the Family Law Act 1975 - that being that 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). The Court did not take into account the children’s right to spend time with the Appellant as their father and the Appellant’s mother - the children’s grandmother.

   5. The Court exercised their discretion improperly and failed to consider the likely effect of any change in the children’s circumstances, including the likely effect on the children of their separation from the Appellant their father.

   6.The Court made an error in their findings and there is no independent evidence to support the allegations of family violence submitted by the First Respondent.

   7. The Court exercised their discretion improperly when considering whether or not to order equal time or substantial and significant time with each parent.

   8.The Court exercised their discretion improperly when considering the views expressed by the children with particular regard to the long term impact of the separation and alienation from their father.

9. The orders sought by the father consequent upon the appeal being allowed are as follows:

   1. That the mother and father of the children have joint parental responsibility for the children.

   2.That the mother and father of the children negotiated living arrangements to suit the children and their need to attend school.

   3. That the father be able to communicate with the children and spend significant time with the children.

10. With great respect to the self-represented father, it was extremely difficult to relate in any meaningful way the written and oral submissions made by him to the grounds of appeal. The father asserts that the trial judge, various agencies of government, school principals, and the like, are “biased”. He asserts that teachers and others at the children’s school have been racist (presumably towards the children). The essence of the claim of bias, reflecting what his Honour said in the reasons, would appear to be grounded in an assertion that individuals and what might for convenience be called “the family law system” is biased in favour of women, and against men. It would appear that this is said to be so particularly in respect of family violence. Late in the hearing before us the “family law system” was described by the father as a “feminist homosexual conspiracy”.

11. A number of factual assertions were made by the father against a variety of different people. I was, with respect, unable to relate any or all of those assertions to any ground of appeal asserting a material error of fact (or otherwise). Nor could I ascertain for myself any other appellable error otherwise contained within those assertions. The father repeated assertions that the mother, and not him, had perpetrated family violence. He said, for example, that he contacted the police but the mother did not. His Honour dealt with these assertions in the reasons.

12. No error is demonstrated in respect of any finding made by his Honour. In short, his Honour preferred the evidence of the mother and a number of other witnesses over that of the father. There is no error demonstrated in his Honour doing so. Again, the father asserted that the findings were as a result of complex conspiracies and biases. No proper evidentiary foundation is given for any such assertion.

13. In summary, the father’s submissions seem to me to be nothing more than assertions that his Honour should have reached conclusions contended for by the father at trial, contrary to those ultimately found. I was unable to discern, however, how it might be said that his Honour erred in material fact by reference to the evidence, or otherwise took account of any irrelevant considerations, or failed to take account of any relevant considerations. In comprehensive and, with respect, careful reasons his Honour analysed the evidence and did so in very difficult circumstances. His Honour’s reasons referred to and applied the Act’s objects and principles and assessed the children’s best interests by reference to a proper analysis of s 60CC of the Act, as the Act requires.

14. The grounds of appeal which assert that his Honour did not apply s 60B(1)(a) and s 60B(2)(a) are based on a false premise. His Honour manifestly did so as the reasons make plain. Moreover, and crucially, his Honour predominated the protection of the children from harm, a s 60B object to which the father’s grounds make no reference and which is now mandated as a predominant primary consideration (s 60CC(2A)).

15. In short, his Honour considered properly the objects and principles in s 60B and the relevant considerations in s 60CC. I will refer to but a few examples which are illustrative of the foundations of his Honour’s orders. His Honour said this:

    138. Likewise I have already traversed the evidence in which the children have detailed that their experience when with the father is one of conflict; conversely, their experience now that they are not having contact with the father is one of peace.

    139.As if the direct impact upon the children of experience of such a father is not enough, there is also the risk that they will be caught up in the father’s retributive schemes. These are not at all child focussed. There are two glaring illustrations of this…

    140. Ms [V] summarised it perfectly in her oral evidence-in-chief. She said that the father operates from a position of self-entitlement, is prepared to carve up the children like property, and does not understand the impact of domestic violence on children.

    …

    142.The father does indeed totally lack insight. He demonstrated that many, many times during the course of the trial. He says and does whatever he feels he should in any circumstances. This is the experience of the children of him…

16. By way of contrast his Honour rejected the father’s contentions that the mother had alienated the children. His Honour said:

    144.I reject that the mother has alienated these children from the father. I completely accept [the reporting psychiatrist’s] evidence that the father has managed to alienate them “very nicely himself.”

    …

    146.The children do not perceive that they derive any benefit from their relationship with the father. The expert evidence speaks strongly in support of their views…

    147.In the past the father has been involved in arranging and facilitating the children attending extra-curricular sporting activities. The most recent instance of that was a disaster. The children were attending a swimming carnival, and the father went to observe. He became concerned that [C] had wrongly come second in a race. He made a scene...

    148. The two older children identified that they would obtain no benefit from a relationship with their father and do not want it…

    …

    151.I am not satisfied that the father has the capacity to provide for the emotional needs of the children were he to have them in his care for any period of time.

17. His Honour’s orders with respect to parental responsibility devolve from a correct application of the presumption contained in s 61DA of the Act and a correct finding that the presumption did not apply because of family violence. In addition his Honour found in the alternative, again correctly in my view, that, in any event, the best interests of the children would see the presumption rebutted.

18. In the latter respect, his Honour found that the parties had no capacity at all to communicate or otherwise consult or cooperate in the children’s best interests as s 65DAC of the Act requires. At [161] of the reasons for judgment his Honour found, again correctly in my view, “I am satisfied that these parents could never communicate, much less negotiate effectively, in relation to matters involving the children”.

19. The father’s Amended Notice of Appeal makes it clear that he appeals all of his Honour’s orders. Nothing within the grounds or the written or oral arguments by the father pertains specifically to his Honour’s injunctions or other orders.

20. It will be clear, I think, even from the brief reference I have made to his Honour’s findings and reasons that I consider that the evidence more than supports those orders and, with respect, I consider his Honour was entirely correct in making those orders. 

21. In my view, the appeal should be dismissed.

22. At the outset of the appeal, the Court indicated to the father that his Application in an Appeal to be provided with a transcript of the trial would be dismissed and that reasons for this decision would be given contemporaneously with these substantive reasons on appeal. 

23. The application of the father makes it plain, in terms, that the only purpose of the application is to expose “Mr Tree’s [that is the trial judge’s] criminal conduct”. In that regard, it might be noted that the father lists his occupation in his financial statement also filed on 13 May 2016 as “Family Court victim of torture.”

24. No proper basis for the orders sought is given in the father’s affidavit or in any of his arguments. For those reasons I joined with my colleagues in dismissing the father’s Application in an Appeal.

Costs

1. I am not persuaded there are circumstances justifying a departure from s 117(1) of the Act.

2. The father speaks of a recent stint in hospital; he is on a disability support pension. I would order that each party bear their own costs of and incidental to the appeal.

3. For those reasons, I would order:

   (1)That the father’s Application in an Appeal filed on 13 May 2016 be dismissed.

   (2)That the appeal be dismissed.

   (3)That each party to the appeal, including the independent children’s lawyer, bear his or her own costs.

Strickland J

1. I agree with the reasons provided by Murphy J and the orders proposed by his Honour.

Kent J

1. I agree with the orders proposed by Murphy J and with his Honour’s reasons for those orders.

Strickland J

1. The orders the Court makes are:

   (1)The application in an appeal filed by the appellant father on 13 May 2016 be dismissed.

   (2)The Appeal be dismissed.

   (3)Each party to the appeal including the Independent Children’s Lawyer bear their own costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Kent JJ) delivered on 10 November 2016.

Associate:

Date:  28 November 2016