Whittaker & Dales

Case [2022] FedCFamC1F 370

Federal Circuit and Family Court of Australia

(DIVISION 1)

Whittaker & Dales [2022] FedCFamC1F 370

File number: MLC 11417 of 2016
Judgment of: MCGUIRE J
Date of judgment: 25 May 2022
Catchwords: FAMILY LAW – CHILDREN – Application by mother seeking final orders that children spend no time with the father – Application opposed by father who seeks time with the children on a graduated basis culminating in a week about regime and for half of all school holidays – Allegations of family violence – Issues as to mental health of both parents – Children’s views – Capacity of parents – Allegations that children are at risk in the care of the father – Orders that children live with the mother – Order that mother have sole parental responsibility for the children – No prescriptive orders made in respect of the father spending time with the children – Orders that children spend time with and communicate with the father according to their wishes – Injunctive orders   
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 65DAA(3)
Cases cited:

Champness & Hanson [2009] FamCA 96

M v M (1988) FLC 91–979

Mazorski & Albright (2007) 37 FLR 518

McCall & Clark (2009) FLC 93-405

N & S and the Separate Representative (1996) FLC 92-655

Napier v Hepburn (2006) FLC 93-303

PST & CPR [2006] FMCAfam 36

Sigley & Evor (2011) 44 Fam LR 439
Division: Division 1 First Instance
Number of paragraphs: 205
Date of hearing: 28 and 29 March 2022 and 1 April 2022
Place: Hobart
Counsel for the Applicant: Mr Ambrose
Solicitor for the Applicant: Maloney Anderson Legal
Solicitor for the Respondent: Litigant in Person
Counsel for the Independent Children's Lawyer: Ms McNamee
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 11417 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WHITTAKER

Applicant
AND:

MR DALES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCGUIRE J

DATE OF ORDER:

25 May 2022

THE COURT ORDERS THAT:

1.All extant parenting orders be dismissed.

2.The children X born in 2008, Y born in 2010 and Z born in 2013 (‘the children’) live with the mother, Ms Whittaker.

3.The mother have sole parental responsibility for the children.

4.The father, Mr Dales, be permitted to communicate with the children by card, letters or gifts on one occasion in the first week of each month and on each of their birthdays, Easter and Christmas and the mother will encourage the children to respond to the father.

5.For the purposes of Order 4 herein the mother will provide to the father, within seven days (7) from the date of these Orders, an email address or P.O. Box to enable him to correspond with the children.

6.For the purposes of Order 4 herein the mother may review any cards, letters or gifts sent to the children by the father to ensure they are appropriate and if she considers an item to be…

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AGLC
Whittaker & Dales [2022] FedCFamC1F 370
Case
[2022] FedCFamC1F 370
Decision Date

CaseChat Overview and Summary

The case before the Court involves the parents of three children, a father and a mother, engaged in a dispute over the children's primary residence and contact arrangements. The Federal Circuit Court is tasked with determining the best interests of the children. The father, who has a history of violence and criminal behaviour, seeks to have more time with the children, while the mother, who has her own mental health issues, argues that the father's behaviour is too volatile and dangerous for the children to spend time with him.

The legal issues before the Court include whether the father's history of violence and criminal behaviour, as well as his lack of insight into his own failings, compromise his capacity to care for the children emotionally. The Court must also consider the mother's own mental health diagnosis and whether she has the capacity to care for the children, physically and emotionally, should there be a reinstatement of time for the children with the father.

The Court found that there is, for all practical purposes, no current relationship between any of the three children and their father. The evidence of numerous intervention orders, breaches of intervention orders, and criminal charges/convictions in respect of the father speak heavily of the load carried by the mother. The Court rejected the father's assertion that the mother has manipulated or "brainwashed" the children against him. The Court found the mother to be a capable, skilful, and child-focused parent not limited in any practical sense by her own mental health diagnosis. The Court found the father to be of a historical and continuing violent disposition. The Court generally preferred the evidence of Dr E over that of Dr B. The Court found that the children themselves currently prefer to have no direct contact with their father.

The Court found that the mother has the sole responsibility for the children's care and actual support. The Court rejected the father's argument that the children would suffer emotional and social consequences of being deprived of a relationship with him. The Court found that the children have achieved a relative degree of peace in their own lives. The Court found that the mother has a demonstrated capacity to care for the children, physically and emotionally. The Court found that the father's capacity to care for the children emotionally is compromised by a lack of insight into his own failures. The Court found that the father's rigidity of thought patterns accompanied by restricted and repetitive patterns of behaviour put his intentions towards his children at odds with his empathy of their circumstances.

The Court made orders that the children reside with the mother and that the father have supervised contact with the children.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In her final submissions, counsel for the ICL urged the Court to place some weight on the demeanour of the father in this trial which she says gives some corroboration of the observations of the medical experts and of his behaviour towards the children during contact visits and, importantly, that the father’s behaviour remains volatile, unpredictable and aggressive.BACKGROUND The father is 45 years of age and the mother is 40 years. The parents commenced a relationship in 1999. They married in 2010 and finally separated in February 2015. In 2012 the father was charged and convicted of assault on members of the mother's family and received a sentence of imprisonment. In early 2015 the mother was admitted to H Hospital and later to J Hospital suffering from mental health issues. On 28 February 2018 final parenting orders were made in respect of X, Y and Z in the Federal Circuit Court at D City providing inter alia for the children to live primarily with the mother and to spend time with the father. In May 2018 the children's primary school contacted their legal department and notified the father in writing of alleged unacceptable behaviour at the school and advising him to desist in engaging with staff without an appointment. In 2018 the father completed a Men’s Behavioural Change Program. In September 2018 the mother received communication from the Z’s kindergarten about bruises and disclosures by Z of the father having locked the children out of the house whilst he sleeps. On 3 February 2019 a family violence incident took place at the mother's home whereupon the father was charged and convicted in November 2019. On 4 February 2019 the father attended the Z's first day at school resulting in the school principal asking the father to leave the school premises. On 8 February 2019 a Police Family Violence Order (IVO) was granted in favour of the mother and children with the father as respondent. The orders were made final on 30 July 2019 with the father consenting to the orders but without admissions. On 12 February 2019 the mother alleged a breach of IVO following which the father was charged and convicted in November 2019. On 26 February 2019 the mother deposes that the school chaplain advised of disclosures by Y that the father threatened to hit her with a bike inner tube. On 27 February 2019 the mother deposes that the father breached the IVO by attendance at the children school. He was removed by police and charged with a breach. In February 2020 the father completed a Post Separation Co-Operative Parenting Program. On 2 May 2020 the child X attended for supervised contact with the father at L Services (‘L Services’). X has not engaged in further visits with father. On 2 May 2020 the mother suspended the children's time with the father due to she asserting that the father was interrogating the older two children. On 14 May 2020 the L Services suspended their provision of service for supervised contact. On 30 June 2020 an order was made in these proceedings for a family report and orders that the father be permitted to communicate with the children by letter/card monthly.

Evidence

Evidence Before The Court

In or about September 2021 Y disclosed to the mother that the father “grilled” her during supervised contact and thereafter she refused to see the father. The child Z also made disclosures of her being interrogated by the father.THE EVIDENCEThe mother The mother relied on her comprehensive affidavit of 2 March 2022. She confirmed that she suffers from a mental illness but that her condition has now stabilised without medication where she is properly professionally monitored. She confirmed that she is in a stable same–sex relationship where the children are ordinarily and happy members of that family unit. The mother gave her evidence in a calm and candid fashion where she was not required to endure cross-examination by or on behalf of the father but where she was cross-examined by counsel for the ICL. I saw her evidence in court, as in her affidavit, to be child focused and insightful towards the children's needs. I detected no ulterior motive or agenda but, rather, that the mother has historically encouraged the relationships between the children and their father including previously encouraging and facilitating a reinstatement of such relationships after they had ceased. My observations were of a mother understanding and empathetic of the distresses of her children following visits with their father but where she now feels somewhat encumbered by that situation. The mother reports a relatively long 15 year relationship with the father but where she herself was the victim of the father’s propensity for anger manifesting at times in violence and where she undoubtedly carries the emotional scars of the volatility of her relationship with the father including post separation. Despite limited cross-examination, I find the mother to be an honest and child focused witness but with a personality, perhaps consistent with her diagnosis, of some fragility and vulnerability.The father The father represented himself after having disengaged with any lawyer appointed pursuant to s 102NA of the Family Law Act 1975 (Cth). He provided a comprehensive affidavit filed 8 March 2022. The affidavit is informed in respect of the issues in dispute and the presentation of the father’s case. It contains copious annexures and is generally relevant and of some real assistance to the Court and the father's presentation of his case. During the course of his evidence the father volunteered that he may suffer an undiagnosed condition of Asperger’s Syndrome or similar. Such may explain some of my observations of the father's demeanour in court, his alleged behaviour towards the mother and others, his exchanges and relationship with his children, and his dealings with the L Services. My observations of the father in court were variously of him being passionate, spontaneous, and impulsive. He was frequently verbose in his responses and questioning of witnesses. There were moments and indications of insight and lucidity but where his focus moved unpredictably between the interests of his children and his relationship with them to a blaming of the mother where a tenet of his case was that the breakdown in his relationship with the children is a result only or mainly of the mother's mental health condition and her “brainwashing” of the children against him. Strangely, at other times he appeared acknowledging and understanding of his own behavioural faults including during times with the children and where he was contrite and remorseful. However, without apparent reason or indication his demeanour and focus would spontaneously change back towards an aggressive blaming of the mother or the L Services. Similarly, and whilst acknowledging his instances of violence towards the mother (evidenced by pleas of guilty) he would then proclaim innocence and a quest to have his conviction set aside. As a result, there was a lack of continuity of focus and theme in the father's evidence but where at all times I gleaned a great love for his children and a profound regret in him and sense of loss by the breakdown of those relationships.

Decision

Reasons for decision

The fear of the mother, and the question for the Court, is whether there can be confidence in the father refraining from such behaviour in the future should time with the children be reinstated. The effect on the children, particularly on the two girls of the more recent reinstatement of time, has been significant, Y is said to suffer social problems at her school. X and Y are clearly distressed by the nature of the breakdown of their relationship with their father as well as its fact. Any further repetition of such behaviour and a reinstatement and ultimate cessation of time for the children will add to the weight already carried by this mother and her ability to cope.FINDINGS AND CONCLUSIONS I find that there is, for all practical purposes, no current relationship between any of the three children and their father. Effectively X and Y have rejected him and Z is inclined towards her siblings but without being as informed as they might be. I find the mother to be a skilful, loving and objective parent. She is, however, burdened by her own mental health problems and of she being a victim over many years of the father's family violence and his propensity toward such violence. The evidence of numerous intervention orders, breaches of intervention orders, and criminal charges/convictions in respect of the father speak heavily of the load carried by this mother. I am satisfied on the evidence, however, that the mother has remained objective and positive in the main in respect of her children’s relationships with their father and despite her own experiences of him. Significantly, she facilitated a reinstatement of time for the children with their father in 2021 only to see that fall over for the very same reasons that it had previously ceased. On the evidence, therefore, I reject totally the father's assertion that the mother has manipulated or “brainwashed” the children against him. I find that the objective evidence of the L Services notes are corroborative of the mother’s position that it is the behaviour of the father himself that has solely contributed to the breakdown of his relationships with his three children. I am satisfied that the children themselves currently prefer to have no direct contact with their father. I find the mother to be a capable, skilful and child focused parent not limited in any practical sense by her own mental health diagnosis. On the evidence, I find that the father is of a historical and continuing violent disposition. He has suffered numerous intervention orders against him to protect his children and their mother. He has breached those orders. He has been convicted of criminal assault. Yet in the witness box his tendency remained to deflect the blame to others and primarily the mother. I generally prefer the evidence of Dr E over that of Dr B although there are certain parallels and concerns in respect of the father emanating from both assessments. My own lay observations of the father in court accord with the professional psychological evaluations of Dr E that the father appears to experience intense episodes of anger, depression and anxiety. He has difficulty controlling his impulses and acts spontaneously and at times aggressively. His thought patterns are rigid and he engages in “black and white thinking”.

Ratio Decidendi

Legal Principle Established

By reason of the circumstances set out above, the mother has the sole responsibility for the children's care and actual support.Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:(i) either of their parents or(ii) any other children, or other person ( including any grandparent or other relative of the children) with whom the children have been living This is a matter which the father emphasises in his argument for reinstatement of time with the children. It is generally accepted by the experts that children benefit by having both of their parents in their lives during childhood and adolescence and may well suffer their own emotional and social consequences of being deprived of a relationship with one or other of their parents. In a practical sense, however, the children have now not seen their father for some period of time. The evidence suggests that the catalyst for the cessation of time was the father's own behaviour repeated and not consistently acknowledged by him. It is fair to assume, therefore, that the children have achieved a relative degree of peace in their own lives. Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; This is not a relevant consideration are in these proceedings.Section 60CC(3)(f) the capacity of:(i) each of the children’s parents; and(ii) any other person (including grandparent or other relative of the children)to provide for the needs of the children, including emotional and intellectual needs; This consideration is a focus of the Courts determination as to the best interests of the children. The mother has a demonstrated capacity to care for the children, physically and emotionally. A question remains, however, as to her coping ability should there be a reinstatement of time for the children with the father and a repetition of his behaviour when engaging with the children. This must be seen within the context of the mother’s own diagnosis of bipolar and of she being a victim of the father's behaviour over a lengthy period of time. The mother and the ICL argue that the father’s capacity to care for the children emotionally is compromised by a lack of insight into his own failures. He has repeatedly engaged the children in inappropriate conversations even during supervised time. He has a propensity to blame the children themselves or the mother for the difficulties in his relationship with the children. Whilst his intentions in respect of the children are admirable and he has consistently sought to reinstate time and undoubtedly has a strong and profound love for his children, the question remains as to the father's psychological or emotional welfare which involves a rigidity of thought patterns accompanied by restricted and repetitive patterns of behaviour. Put simply, his intentions towards his children, admirable as they are, are not reflected in his empathy of their circumstances.Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;