WESTLAKE & WESTLAKE

[2019] FamCA 563

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE [2019] FamCA 563

FAMILY LAW – CHILDREN – Where final parenting orders were made in February 2014 after a defended hearing – Consideration of the principles in Rice & Asplund (1979) FLC 90-725 – Where the trial judge found that the father posed a risk of emotional harm to the children due to his beliefs about the mother and inability to foster the children’s relationship with the mother – Where the trial judge found that the children needed to be protected from the father’s beliefs and imposed long term supervision – Where the supervisor withdrew its services in March 2014 and the father has not seen the children since then – Where there is no evidence to suggest that the father’s beliefs about the mother have changed – Where there has not been a significant change in circumstances to warrant a reconsideration of the current order – Where further litigation would not be in the best interests of the children – Where the 2014 parenting order is varied to reflect the reality of the children’s situation and applications by the mother and father to vary/discharge the order are otherwise dismissed.

Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Westlake

RESPONDENT: Mr Westlake

INDEPENDENT CHILDREN’S LAWYER: Mr J. Blayney

FILE NUMBER: BRC 6180 of 2012

DATE DELIVERED: 16 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K. Oakley

SOLICITOR FOR THE APPLICANT: Colville Johnstone Lawyers

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

It is ordered that:

1. Paragraphs 4 and 5 of the order made by the Federal Circuit Court on 20 February 2014 (“the 2014 parenting order”) be discharged and substituted with the following:

   That the father not spend time with the children, X born … 2009 and Y born … 2011.

2. The competing applications by the mother and the father for variation and/or discharge of the 2014 parenting order be otherwise dismissed. 

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 Westlake & Westlake 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6180 of 2012

Ms Westlake

Applicant

And

Mr Westlake

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Westlake and Mr Westlake are the parents of two children, X aged nine and Y aged seven. The children live with the mother. They have not seen the father since March 2014, at which time they were four and two respectively.

2. The children’s living arrangements came about after a nine day hearing on various dates in 2013.[1] On 20 February 2014, Judge Baker, a Federal Circuit Court judge, ordered that the children live with the mother and that she have sole parental responsibility for them. The trial judge also ordered that the father spend supervised time with the children, but it is common ground that the contact centre tasked with supervising the father’s time with the children withdrew its services in March 2014 due to the father’s non-payment of fees.

   [1] The proceedings also involved a property dispute.

3. Both parties seek to vary the 2014 parenting order. If the father’s application were to proceed, a further trial would need to be undertaken and a further family report obtained. The mother’s application seeks to vary the 2014 parenting order so as to reflect the current reality i.e. that the father not spend time with the children.

4. As these are proceedings in which I am being asked ‘whether to make a particular parenting order’ (see s 60CA of the Family Law Act 1975 (Cth) (“the Act”)), Division 12A of the Act applies.[2] Accordingly, I determined when setting this matter down for hearing that it was appropriate for a discrete hearing on ‘whether or not there has been a significant change of circumstances since the last trial that would warrant a further trial of a parenting application’ (see s 69ZQ(1)(a)).

   [2]Miller & Harrington (2008) FLC 93-383 at [73].

5. Before turning to consider the particular circumstances of this case, it is necessary to explain what a party wishing to embark on a further hearing of a parenting dispute after a final order needs to establish.

The ‘rule’ in Rice & Asplund

1. The Full Court in Rice & Asplund[3] (per Evatt CJ) held:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   [3] (1979) FLC 90-725 at [7].

2. This is what is referred to as the ‘rule’ in Rice & Asplund. Whether or not the principles identified in Rice & Asplund are more properly called a ‘guiding principle’ rather than a ‘binding rule’, it is apparent that the principles have been universally applied for decades.[4]

   [4] Poisat & Poisat(2014) FLC 93-597 at [8].

3. The existence of a ‘final’ parenting order does not prevent the Court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case.[5]

   [5] Ibid at [37], [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.

4. Whether the ‘rule’ in Rice&Asplund is applied at a preliminary stage or after a full hearing, the best interests of the child remains paramount,[6] although “the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case”.[7] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[8] “the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[9]

   [6] Ibid at [42].

   [7] Ibid.

   [8] Ibid at [32] and [34].

   [9]Carriel & Lendrum (2015) FLC 93-640 at [49] – [56].

5. The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer,[10] although its significance is likely to be greater when applied at a preliminary stage.[11]

   [10] Bennett & Bennett (1991) FLC 92-191 at [63].

   [11] SPS & PLS (2008) FLC 93-363 at [48].

6. The significance of the variation sought will have an impact on the application of the rule. As Warnick J held in SPS & PLS:[12]

   The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   [12] Ibid.

7. That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC as are relevant to the determination.[13]

   [13]Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64] and [65].

8. Even when the rule is applied after a full hearing, two particular public policy matters remain of some significance: firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[14]

   [14] SPS & PLS supra at [56] – [58].

What are the competing parenting applications currently before the court?

1. The mother was substituted as the applicant by an order made on 16 May 2017 when the father’s initiating application filed 2 March 2017 was discontinued. The relevant order sought by the mother is as follows:

   5. That orders (4) to (6) of the Final Orders made 20 February 2017 (sic) by the Federal Circuit Court of Australia be varied that (sic) children X born in 2019 (sic) and Y born in 2011 shall not spend any time or communicate with the Father.[15]

   [15] See mother’s Amended Response to Initiating Application filed 15 May 2017.

2. By way of convenience, I set out paragraphs 4 to 6 of the 20 February 2014 order below:

   (4)For a period of 12 months the children spend supervised time with the father for between two to three hours each week on the following terms:

   (a)The supervised time occur at the K Contact Centre or such other Contact Centre as agreed;

   (b)The father be entitled to have the Paternal Grandmother, Ms B attend with him during his time at the Contact Centre;

   (c)The mother and father do all acts and things as are necessary to secure admission and enrol at the said Contact Centre; and

   (d)The mother and father comply with the terms and conditions of the Contact Centre attended and share the costs of the Centre attended.

   (5)After the period of 12 months referred to in order 4, the children spend supervised time with the father for between two to three hours each fortnight on the terms set out in order 4.

   (6)The father may send birthday and Christmas cards, and birthday and Christmas presents to the children each year to a post office box provided to him by the mother.

3. The father filed a response to the orders sought by the mother on 23 May 2017. Doing the best I can to understand the father’s position, the relevant parenting order sought by the father is expressed in the following terms:

   1.If [Ms Westlake]’s abuse can be mitigated and/or ceased. Visitation with the children restored with make up time at [Ms Westlake]’s expense. With the Children to be progressively returned to my care, so as to minimise disruption to their lives.

   2.If [Ms Westlake]’s abuse cannot be mitigated and/or ceased or if [Ms Westlake] is actually held to account for her criminal actions. Children to be returned to my care immediately. So as to prevent the children, the second stolen generation of my family, being lost to a form of forced adoption. With [Ms Westlake] to have fortnightly supervised visitation of the children. Or alternatively such visitation as the prison allows.

   (As per the original)

4. In his written submissions, the independent children’s lawyer (“ICL”) does not support any discharge or variation to the existing order. However, in oral submissions, counsel for the ICL stated that the ICL supports the submissions made by counsel for the mother. 

The trial judge’s reasons

1. In determining the matter now before the Court it is necessary to consider the reasons for the 2014 parenting order and the material upon which that decision was based. The learned trial judge summarised each party’s case in the following terms:

   46. The mother’s case was that, due to the psychiatric health of the father, he does not have the capacity to parent the children. Also, given the father’s attitude and beliefs regarding the mother, there is a risk that the children will suffer emotional harm if they spend time with him.

   47. The father made numerous allegations against the mother. His case was that he has been subjected to severe psychological, sexual and physical abuse by her. He alleged that the mother raped him before they were married in 2006; physically and emotionally abused him by enslaving him; has tried to force him to commit suicide; and has presented false information to have his sanity questioned.

   48.The father alleged that the mother has physically and emotionally abused the children and has sexually abused X. He alleged that a man, with whom the mother was having an affair, sexually abused X. His case is that the children are at risk of further abuse in her care. He believes that the mother should be punished and jailed.

2. The central issues identified by the learned trial judge were as follows:[16]

   (i)Whether the children are at an unacceptable risk of harm in the mother’s care, due to father’s allegations of her physical, emotional and sexual abuse of the children and her neglect of them; and

   (ii)Whether the children are at an unacceptable risk of harm in the father’s care, due to his mental health and his beliefs about the mother as a parent.

   [16] Reasons for Judgment of Judge Baker dated 20 February 2014 at [19].

3. The father had reason for legitimate concern about the mother’s mental health historically, and her physical treatment of one of the children. However, the psychiatrist who assessed the mother for the purposes of the trial, Dr C, addressed those issues and opined that that the mother had recovered from her mental illness (depression); had good insight into her behaviour; had reported her own behaviour to her counsellor at the time; and was no longer a risk to the children. The trial judge accepted Dr C’s evidence, as she was entitled to do.

4. Dr C also assessed the father and opined that he:

   Presented as quite paranoid and low in mood. He was suspicious and distrustful particularly of his ex-wife and others related to the access to his children.[17]

   [17] Reasons for Judgment of Judge Baker dated 20 February 2014 at [57].

5. The trial judge noted that Dr C further opined:

   He appears to have a paranoid personality disorder which is described as a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent.

   (i) Suspects that others are exploiting or deceiving him.

   (ii) Preoccupied with unjustified doubts about loyalty and trustworthiness of others.

   (iii) Reluctant to confide in others.

   (iv) Reads hidden and threatening meanings into benign remarks or events.

   (v) Persistently bears grudges and is unforgiving of insults and injuries.

   (vi) Perceives attacks on his character that are not apparent to others he is quick to react or to counter attack.

   (vii) Has recurrent suspicions without justification regarding fidelity of spouse.

   Differential diagnosis would include major depression with persecutory ideas.[18]

   [18] Reasons for Judgment of Judge Baker dated 20 February 2014 at [58].

6. Dr C recommended that the father undergo further psychiatric assessment and treatment and opined that “many persecutory ideas are readily treated”.[19] The trial judge accepted Dr C’s opinions and in particular that - “there is a risk of emotional harm to the children, due to his beliefs about the mother and not being capable of fostering the children’s relationship with the mother”.[20]

   [19] Ibid at [62].

   [20] Ibid at [66].

7. The trial judge quoted at some length the father’s evidence at [77] to [84] and [101] to [103], which the trial judge said demonstrated - “his distrust of the mother, the solicitors, and professionals involved in this matter, and the legal system” and the trial judge found this evidence - “gives rise to concerns about his mental health”.

8. A psychologist who also gave evidence at trial, Mr D, recommended that the father - “attend upon a psychiatrist for assessment of the presence of depression with possible obsessional rumination”.[21]

   [21] Ibid at [98].

9. The trial judge observed that during the trial the father - “exhibited a distrust and suspiciousness of the mother, both Counsel in this matter, the experts, and the legal system. He was rigid in his views and he was not prepared to make concessions”.[22]

   [22] Reasons for Judgment of Judge Baker dated 20 February 2014 at [118].

10. The trial judge also observed that the father was - “intent to prove his claims about [the mother]. He wanted her to be held to account for abuse”.[23]

    [23] Ibid at [119].

11. The trial judge considered and assessed each of the allegations made by the father against the mother and was not persuaded about any of the following matters:

    a)That the mother emotionally or physically abused the father;[24]

    b)That the mother threatened the child, Y, and herself with a knife on the day of separation;[25]

    c)That the children have suffered psychological harm in the mother’s care;[26]

    d)That the mother has neglected the children;[27]

    and found:

    e)That the allegation that the children had been sexually abused by the mother or anyone else was groundless,[28] and there is no unacceptable risk of the children being sexually abused while in the care of the mother.[29]

    [24] Ibid at [171].

    [25] Ibid at [179].

    [26] Ibid at [190].

    [27] Ibid.

    [28] Ibid at [201].

    [29] Ibid at [218].

12. The trial judge found that the children were doing well in the mother’s care and that there was - “no unacceptable risk of further physical harm to the children from the mother”.[30]

    [30] Ibid at [191] – [192].

13. The trial judge concluded that the children needed to be - “protected from the father’s persistent beliefs about the mother, that she has sexually assaulted him and that the children are at risk of physical, emotional and sexual harm in her care”,[31] and that the father “is intent on proving allegations against the mother, and puts this need above the needs of the children”.[32]

    [31] Ibid [237].

    [32] Ibid at [269].

14. The trial judge envisaged that if the father were to undergo psychiatric assessment and treatment for at least twelve months as recommended by Dr C - “he should be able to establish a significant change in circumstances to permit him to bring an application for unsupervised time”.[33]

    [33] Ibid at [298].

15. As already noted, the trial judge made a final order providing for the children to live with the mother and spend limited supervised time with the father.

16. There was no appeal against the trial judge’s decision.

The mother’s case

1. The only material relied upon by the mother comprises paragraphs 24 to 28 of her affidavit filed 5 May 2017 and the reasons for judgement of the trial judge dated 20 February 2014. Her counsel also provided brief written submissions and spoke to them.

2. As I understand the mother’s case, she submits that while there has not been a change in circumstances sufficient to warrant a further trial involving the father’s application to change the living arrangements of the children, there has nevertheless been a change sufficient to warrant a discharge of the provisions in the 2014 parenting order which provide for the father to spend ongoing supervised time with the children and communicate with them by sending a card and present for the children’s birthdays and Christmas. The evidence relied upon to support those submissions include the following:

   a)It is common ground that the trial judge envisioned that the 2014 parenting order for ongoing supervised time might be reviewed with the assistance of family dispute resolution upon the father undergoing “an effective course of psychiatric treatment as recommended by Dr C for a period of 12 months and provides a report to the mother that his persecutory beliefs about her have ameliorated” (see paragraph 13 of the 2014 parenting order);

   a)The father has not complied with that provision;

   b)It is common ground that the father has had no relationship with the children for five years and five months (noting that the children were four and two when they last saw the father);

   c)It is common ground that the contact centre tasked with providing supervision withdrew their services in March 2014 due to the father’s non-payment of fees;

   d)It is common ground that attempts to obtain an alternative contact centre failed (with each party blaming the other for that situation); and

   e)While the variation to the order may not strictly be necessary given the preconditions contained therein, and while the variation sought will merely reflect the reality of the current situation, it is nevertheless pressed given the father’s history of seeking to have the mother dealt with for contempt in relation to her alleged non-compliance with the provisions of the part of the order sought to be varied.  

The father’s case

1. At the case management hearing on 7 June 2019, when this matter was set down for hearing on 13 August 2019, the father indicated his intention to rely upon the affidavits of Mr E and Dr F in support of his case that there has been a significant change in circumstances. The father did not rely upon any other evidence (other than a psychologist’s report in relation to the child Y) but did file written submissions, which he spoke to.

2. Before turning to the father’s submissions, I should record that I refused the father’s application to rely upon certain documents contained in two volumes of documents which had been left with court staff by the father, and which I perused prior to the hearing. Reasons were given by me at the time for refusing the father permission to rely on the documents, but for completeness, I record that the father made submissions in relation to only a few of the documents contained in the volumes, namely:

   a)A code of ethics for psychologists commencing at page 6 of the first volume;

   b)A ‘female aggression wheel’ diagram; and

   c)Certain emails from 2012 referring to a blue card, which the father submitted suggest the mother may have been employed or looking for employment contrary to her evidence at trial in 2013 that she was unemployed.

3. The father tendered, without objection, a psychologist’s report dated 20 May 2015 (pages 169 to 178 of the first volume) suggesting that the child, Y, “falls within the Autistic Spectrum range, with a moderate level of autistic spectrum related symptoms demonstrated” (exhibit 1). It was clear from the father’s submissions that he takes issue with the diagnosis.

4. I also refused the father’s application to rely upon a recording of domestic violence proceedings between him and the mother before a local magistrate in 2017 (the father said this was a recording produced by Auscript). The father submitted that the recording was relevant for two reasons:

   a)A witness in those proceedings, Ms G, had committed perjury and she was a witness relied upon by the trial judge in the parenting proceedings; and

   b)The mother had relied upon a number of recordings in the parenting trial which she indicated she intended to rely upon in the domestic violence hearing but not only failed to produce them to police for verification but destroyed them.  

5. My reasons for refusing the father’s application to tender the recording were also provided at the hearing on 13 August 2019.

6. Finally, the father’s application to cross-examine Dr F was refused. The father had, very helpfully, reduced his list of questions to writing and the questions are marked exhibit …. The content of the questions are not material to the determination I am tasked to undertake at this hearing but do provide some further evidence of the father’s continued focus on the mother’s alleged conduct and his dissatisfaction with the outcome of the trial in 2014.

7. Turning then to consider the father’s submissions. The father drew my attention to twenty-five reasons why he submits there should be a further parenting trial. His reasons are set out in his written submissions and are as follows:

   (1)The Father and Children have been denied contact at a contact centre.

   (2)The Mother has acted in contempt of her undertaking to the court that she will facilitate a meaningful relationship between the children and Father. Instead she has shown a pathological enmity for the Father and engaged in a systematic campaign to completely erase the Father from the Children’s lives and memories. See case law 3.

   (3)The Mother has knowingly refused to comply with the final orders of the court. See case law 3 and legislative reference 2-6.

   (4)The Mother has systematically attempted to establish chattel ownership of the Children in the matter. The orders sought by the Mother are a clear attempt to have the court legitimise this criminal behaviour. i.e. asking the court to legalise chattel slavery. See Legislative references 2-5.

   (5)The Father has attended Dr E in compliance with orders to ameliorate him to the stolen generation practice that he and the children were subjected to. See legislative reference 6-10, regarding the cruel and unusual punishment of ameliorated therapy for stolen generation practices that occurred.

   (6)Dr E has produced psychological report to the court. Which the court ignored because the Mother was in contempt of her undertaking to the court. Dr E acted to address adjustment disorder not obey an order for torture/cruel and unusual punishment of the patient.

   (7)Dr F has produced psychiatric report to the court. Showing that the Father was not the delusional monster of the Duluth domestic violence model. Rather that he was suffering from severe psychological abuse caused by application of the Duluth model in previous proceedings. Again the court has ignored the report because the Mother was/is the perpetrator. Indeed in absence of psychological disorder the final orders made by Judge Baker serve to torture the Father into accepting the Mother having free reign to abuse the children. See legislative reference 6-10.

   (8)The Father has 2 children to a new relationship, born after orders were made, that are being arbitrarily denied a meaningful relationship with the Children in the matter. See case law 1.

   (9)The Mother’s witness, Ms G, was caught lying under oath in domestic violence proceedings. Which brings the credibility of this witness’s testimony in the previous proceedings into question. Judge Baker placed substantial weight on this witness’s testimony in her reasoning. See legislative reference 11, regarding admissibility of witness’s testimony and legislative reference 12.

   (10)The Mother has tendered approximately 50 exhibits showing stalking via electronic means of the Father since 14 May 2014. See the mother’s response to application – contempt, notification of organised criminal activities, legislative references 1-14.

   (11)The Mother has attempted to have the Father murdered on 3 at least occasions, see legislative reference 13-14, 17, 18.

   (12)The Mother has falsified evidence to gain an advantage by obtaining a DV order. See legislative reference 12.

   (13)The Mother has admitted to destruction (spoliation) of evidence, related to the previous proceedings. See legislative reference 15.

   (14)The Mother has knowingly mislead the court regarding diagnosis of the child Y with Autism. See exhibit … and …. The referral functions to arbitrarily deny the children a mandatory notification to Department of child safety. Which is a clear violation of the psychologist’s equivalent of solicitor conduct rules, exhibit …, section a.

   (15)The Mother has tendered evidence of marked adverse behavioural changes in the child. See Case Law 2

   (16)The Mother has psychologically abused the 2 children into false belief that their Father has a new family now and moved on and forgotten about them. The Mother admits this in her evidence presented to the court. That in contempt of the final court order, the children have not received a single birthday card or Christmas card or present that the Father has sent them. See legislative reference 1.

   (17)The Mother failed to provide a Post office box for presents to be sent to, until February 2015. Instead agreeing to the Father dropping the presents off to her mother’s house. Then claiming that despite agreement to do so, dropping off the presents was an act of domestic violence. See legislative reference 1.

   (18)The Father is in a more stable position from which to describe the abuse this woman subjected the children and I to. Despite legislative reference 17-18, QPS at least know to look for signs of foul play if I am subjected to an untimely demise. They still won’t show up if they are called though. See case law reference 4 and legislative references 17 and 18.

   (19)The Father is in a more stable environment in which to provide a stable upbringing for the children.

   (20)The Father is far more learned in Law than in previous proceedings, knows enough to know he knows very little as opposed to knowing virtually nothing in previous proceedings.

   (21)The Mother through false representations to child support and many other criminal acts. Has reduced the Father to debt bonded slavery/servitude. See legislative references.

   (22)Further evidence of a systematic obstruction of justice occurring in previous proceedings has been discovered. See Notification of organised criminal activities occurring within the court.

   (23)The final orders as made facilitate acts of family and domestic violence against the children in the matter rather than protecting them from it. See section 60 of legislative reference 1.

   (24)Evidence of systematic misconduct by the legal practitioners involved in the matter has been discovered. See Notification of organised criminal activities occurring within the court.

   (25)Evidence of organised criminal activities, including slavery and/or the slave trade has been discovered. See Notification of organised criminal activities occurring within the court.

   (As per the original)

8. I am unsure what the references to ‘case law’ and ‘legislative reference’ mean but the identified reasons demonstrate that there has been no abatement of the father’s beliefs. His beliefs about the mother have become even more extreme e.g. the mother is accused of “chattel slavery” [4]; “severe psychological abuse” [7]; “falsified evidence” [12]; “destruction of evidence” [13]; “knowingly misleading the court regarding diagnosis of the child Y with Autism” [14]; “psychologically abused the 2 children” [16]; “reduced the Father to debt bonded slavery/servitude” [21]; “systematic obstruction of justice” [22]; and “organised criminal activities occurring within the court” [22].

9. The father’s persecutory beliefs (as found by the trial judge) also appear to continue unabated as demonstrated by his written submissions e.g. “QPS [Queensland Police Service] at least know to look for signs of foul play if I am subjected to an untimely demise” [18]; “Notification of organised criminal activities occurring within the court” including “systematic misconduct by the legal practitioners” and “criminal activities, including slavery and/or the slave trade” [24] and [25]. 

10. The father’s submissions demonstrate that he remains “intent on proving allegations against the mother, and puts this need above the needs of the children”.

Is there evidence that the father has undertaken psychiatric treatment to address his persistent beliefs about the mother?

1. The short answer is ‘no’.

2. The father did undergo some treatment with a psychologist, Mr E, but as is evident from his report (dated 6 June 2017) he was provided with only “limited briefing material” [Report 114]. There is no evidence that Mr E addressed the father’s persistent beliefs about the mother, despite the father attending for 33 sessions during the period 14 April 2014 to 30 May 2017.

3. In Mr E’s opinion, the father did - “demonstrate specific moderation to his previous maladaptive coping and prior almost exclusive focus on a legal remedy to his sense of injustice regarding the outcomes of past Family Court proceedings. Some confidence is expressed regarding the likelihood of a more measured and balanced self representation during his current application to engage with his older children…”.[34]

   [34] Affidavit of Mr E filed 3 October 2017 at 24, [124].

4. Having regard to the content of the father’s submissions, I am afraid Mr E’s confidence was misplaced.

5. The father has also been assessed by a psychiatrist, Dr F, on 18 February 2019 pursuant to an order made on 11 October 2018 relating to an application for a case guardian to be appointed for the father (that application was dismissed). Notwithstanding the limitation contained in the order about the purpose of Dr F’s assessment of the father, the ICL requested Dr F to also assess whether the father - “suffers from a psychiatric illness or personality disorder (or traits of these) that might realistically impact on parenting (and, if so, in what manner)”.[35]

   [35] Affidavit of Dr F filed 5 April 2019 at 11.

6. Dr F did not assess the father as suffering from a disability such that he required a case guardian to represent his interests in the proceedings but opined that the father - “remains extremely aggrieved and embittered about the legal process which he still perceives as profoundly unjust”.[36] Dr F also expressed - “serious concerns from a psychiatric perspective about his capacity to accept the outcome of the processes of the case”.[37] In addressing the second part of his brief, Dr F opined that the father - “presents with a personality with obsessional and narcissistic traits which are very well developed which do not equate to being a mental illness which can be treated”.[38]

   [36] Ibid at 38.

   [37] Ibid.

   [38] Ibid at 39.

7. There is nothing in either report to persuade me that the father’s beliefs about the mother, i.e. that she is abusing the children and should be punished for her actions, have diminished in their intensity and focus. Indeed, his beliefs seem to have become more extreme e.g. the father said to Dr F – “the mother hasn’t managed to kill the kids yet but who knows how far she’s going to go”.[39]

   [39] Ibid at 50.

Conclusion

1. A party wishing to vary a final parenting order in a substantive way must satisfy the Court that there has been a significant change of circumstances or a non-disclosure of some matter at the first trial of sufficient gravity to warrant a re-consideration of the existing order.

2. As observed by the Full Court in Carriel & Lendrum:[40]

   In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

   [40] Supra at [57]; As to the relevance of the conduct of proceedings on the children see Division 12A s 69ZN(3) and Miller & Harrington (supra) at [76].

3. The evidence relied upon by the father does not satisfy the Rice & Asplund principles. There is no change of circumstances identified by the father, nor any non-disclosure of sufficient gravity that might warrant a reversal of the living arrangements for the children or “require the court to consider afresh how the welfare of the child[ren] should best be served.” The father has not established that his beliefs about the mother have ‘ameliorated’. To the contrary, the evidence relied upon by him and his submissions establish that there has been no change in his beliefs about the mother other than perhaps to have become even more extreme.

4. Turning then to consider the mother’s application, and accepting the evidence that:

   a)The children have not seen the father for five years and five months, and their ages when they last saw him;

   b)The contact centre tasked with supervising the father’s time with the children withdrew their services in March 2014;

   c)Attempts to source an alternate contact centre failed; and

   d)The father’s beliefs about the mother have not abated,

   I accept the mother’s submissions that the 2014 parenting order should be varied so as to reflect the reality of the children’s situation, namely, that they do not have a relationship with the father. I also accept the mother’s submission that it is preferable to discharge the ‘time provisions’ in paragraphs 4 and 5 of the 2014 parenting order and replace them with a ‘no time’ provision to minimise the prospect of further proceedings e.g. the father commenced contempt proceedings against the mother in 2017 in relation to an alleged failure to comply with those provisions. The father later discontinued that application.

5. It was conceded by the mother that as there is no evidence from her relating to paragraph 6 of the 2014 parenting order, it is difficult to argue for its discharge. I am not able to make any assessment about the desirability of discharging an order which merely provides for the father to be at liberty to send a card or present to the children on their birthdays and at Christmas. There is no evidence about whether or not the father has taken up that opportunity, although I note that in paragraph 17 of the father’s written submissions he contends that the mother provided a post office box in February 2015. I do not intend to discharge paragraph 6 of the 2014 parenting order.

6. The formal order I will make is to discharge paragraphs 4 and 5 of the 2014 parenting order and substitute those paragraphs with a provision that the father spend no time with the children.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 August 2019.

Associate: 

Date:  16.08.2019