Mental illness and family violence

Mental illness and family violence

Gallego & Mackweth [2016] FamCA 10 (20 January 2016)

Last Updated: 21 January 2016

FAMILY COURT OF AUSTRALIA

GALLEGO & MACKWETH

[2016] FamCA 10

FAMILY LAW – CHILDREN – BEST INTERESTS – FAMILY VIOLENCE – NO TIME – SOLE PARENTAL RESPONSIBILITY – Where the wife is the children’s primary carer – Where the children have not seen their father for over a year, with the exception of interviews conducted by the Single Expert, following an assault by the husband on the wife – Where the Single Expert ultimately made no recommendation for any contact to occur between the husband and the children due to his unpredictable psychiatric state – Where the Court found that there was a history of family violence by the husband against the wife which had a significant effect on the children – Where there is no adequate proposal as to suitable supervision given the risks associated with the husband’s psychiatric state – Where the Court found that it was not possible for the children to have any face to face contact with husband that will keep them physically safe – Orders made that the husband have no time with the children but that he and the paternal family be permitted to send the children gifts, cards and letters – Sole parental responsibility order in favour of the wife.

 

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Ms Gallego

RESPONDENT:

Mr Mackweth

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

3015

of

2012

DATE DELIVERED:

20 January 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

16, 17, 18, 19 and 20 November 2015

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/10.html

CONSIDERATION

218. It is not in dispute that the children would benefit from a meaningful relationship with their father if it were possible.
219. These proceedings were instituted prior to the insertion of s 60CC(2A) and thus there is no mandate to elevate the need to protect the children from both physical and psychological harm over the benefit to them of a meaningful relationship with their father. However, significant weight must be given to Dr R’s evidence that his primary focus was on the children’s safety and that time with the husband could only be considered if the children would be safe.
220. The best interests of the children fall to be determined having regard to the additional considerations in s 60CC(3) as it was at the date of filing the application.
221. Section 60CC(3)(a): The children’s views have been carefully considered by Dr R. I accept that the younger child has a residue of affection for her father and the paternal family. I accept that the younger child’s expressed wish not to see the husband until she is considerably older has to be considered in the light of the interaction that Dr R observed with the paternal family. I accept that the older child’s extreme views are coloured by his alignment with his mother.
222. I also accept the evidence of Dr R of the importance for the older child of his views being “validated” in these proceedings.
223. Section 60CC(3)(b) : Both children are closely bonded to their mother and aligned with her. They also have a close and loving relationship with their maternal grandmother, Mrs Z, and their aunt Ms AA.
224. The children’s relationship with the husband is difficult to assess. The younger child appears to be conflicted between wanting to have a relationship with him and being afraid of him. The older child is angry with the husband rather than afraid.
225. Dr R was of the view that the children had, in the past, had a very close and loving relationship with the paternal grandmother who had a substantial involvement in their care before and even after the separation of the parents. The younger child’s close relationship with her paternal aunt was obvious in the session observed by Dr R.
226. Section 60CC(3)(c): Until 4 April 2014 the wife had facilitated the children’s spending time with the husband. When the paternal grandmother was not available to supervise because she was ill, the wife paid for Ms O to supervise even though the husband refused to contribute to the costs. After 4 April 2014 she made an application to the Court to suspend the time the children spent with the husband and the operation of the Orders was suspended. After the District Court trial concluded and the husband was acquitted, he made an application to re-instate his time with the children and that application was unsuccessful.
227. I accept the evidence of Dr R that the wife would have difficulty supporting any face to face time between the children and the husband.
228. Section 60CC(3)(d):There is no proposal that the children would be separated in any significant way from their mother. However, Dr R said that the children would express both short term and long term distress if separated from her.
229. They have not spent time with their father or the paternal family, except in the limited circumstances of the assessment by Dr R, since 4 April 2014.
230. The orders sought by the wife and the ICL would effect a separation of the children from both the husband and the paternal family. There was no application before the Court by the paternal grandmother, Mrs G Mackweth, or by the husband’s sister, Ms Q Meckweth, to spend time with the children independently of the husband.
231. An application had been filed in June 2014 on behalf of the paternal grandparents and paternal aunt seeking orders for time with the children independently of the husband. Somewhat chillingly, the application on order 13 sought the following order:

If any one of the following events occur in or outside of Australian jurisdiction in relation to [the wife];
a. Where “the mother” is held imprisoned or detained by whom so ever on a full time without release basis;
b. Where “the mother” is assessed by at least two registered &/or qualified practising Psychiatrists as lacking mental capacity to adequately provide care for “the Children”;
c. is on life support;
d. becomes registered &/or classified as a missing person or;
e. becomes deceased;
That [the children] are to be given full custody to [the paternal grandmother] &/or [the paternal grandfather] on a temporary basis pending final Australian Family Court orders.

232. The wife deposed that she was disturbed by this application and regarded it as a threat. Her attitude was not unreasonable.
233. However, when the paternal grandparents and paternal aunt were told that, if they wished to prosecute the application, they would be required to participate in the process of the report of the single expert, and to contribute to Dr R’s fees, the application was withdrawn.
234. The paternal grandmother continued to hold herself out as suitable and available to supervise the husband’s time with the children. She said, in cross-examination, that she did not accept that the husband had any mental illness or that his time with the children needed to be supervised. She had not told the wife about the husband’s significant impairment after the armed robbery on 12 November 2013. She did not tell the wife about the diagnoses of significant mental illness although she was aware of at least Dr SS’s diagnosis. She actively concealed her knowledge of the husband’s mental illness from Dr R. She did not appear, in cross-examination by the ICL, to understand why it was thought necessary that the husband’s time with the children should be supervised. Dr R said that she was not an appropriate supervisor.
235. The paternal aunt, who was also nominated by the husband as a supervisor, although she swore two affidavits in the proceedings, was not made available for cross-examination and therefore she could not be considered as a suitable supervisor.
236. There was no application for the paternal grandmother to spend time with the children independently of the husband but having regard to all of the evidence about the husband’s behaviour and his mother’s denial of the seriousness of his illness, it is unlikely that she would be able to prevent him from being present when the children were with her or that she would seek to do so.
237. The wife has so little trust of the paternal grandmother because of her perception that the grandmother lied in the District Court; concealed important information about the husband’s mental health from her and from Dr R; her belief that the paternal grandmother would assist the husband in any endeavour to see the children and her fear expressed in relation to the application of June 2014; that any order that the children see the paternal grandmother, however expressed, would likely have the same effect on her as an order that they spend time with the husband.
238. Section 60CC(3)(e):The practical difficulties involved in any order that the children spend time with the husband arise out of the dangers posed by his illness. No proposal was put by the husband about suitable supervision. He gave evidence in cross-examination that he had made enquiries at a contact centre. He could not remember the name of the centre except that it began with “A”. He did not suggest that the contact centre had been given full and accurate information about the difficulties of the family or the husband’s diagnoses. Any contact centre considering whether to provide services for this family would need to have Dr R’s report as well as a transcript of his oral evidence so as to make an informed decision about the risks posed to staff. There is no evidence that any contact centre, properly informed, would accept this family.
239. There is also no evidence about how professionally supervised time would be paid for. The husband has not paid his share of the fees of Dr R. He said he had no income and no assets. The paternal grandmother offered an undertaking to pay the fees. She is on Centrelink benefits and has $7,000 in savings. She had not made any enquiries about the cost of professional supervision and had no idea what the costs might be. Her undertaking was meaningless.
240. Section 60CC(3)(f): The wife demonstrated her capacity to care for the children’s emotional, intellectual, physical, educational and material needs. She has done so since separation. Dr R was critical of the wife’s alienation of the children from the husband and her involvement of the children to ongoing preoccupation regarding the threat posed by the husband, including safety behaviour, hiding from strangers, checking CCTV and recurrently involving the police which he said was detrimental to their emotional development. However his criticism was somewhat tempered in his oral evidence when he was asked to assume that the wife’s allegations in relation to family violence were accepted.
241. Dr R opined that the husband did not have the capacity to attend to the children’s needs.
242. Section 60CC(3)(g) :Both the parents come from a Christian background. The wife is Phillipina and has extended family in the Philippines. The children have expressed a desire to visit those relatives and spend time in the Philippines. The husband’s family is of Middle Eastern origin. It may be that, as a result of the orders that will be made, the children will not, in the foreseeable future, have the opportunity to enjoy and embrace that culture. That is a matter to be weighed against the other factors for consideration.
243. Section 60CC(3)(i):There is no doubt that the husband loves the children and sincerely wants to have a relationship with them but his capacity to do so is affected by his propensity to violence, his violence against the wife, his mental state and his mental illness all mitigate against his being able to fulfil his responsibilities towards them.
244. Sections 60CC(3)(j) and (k):I have already dealt with the issue of family violence. The husband has perpetrated violence upon the wife and this has affected the children. There is a family violence order in force for the protection of the wife and the children until April 2016. I accept the evidence of Dr R that, having regard to the husband’s psychiatric illness, there is no way to ensure that, if the children spend time with the husband, they can be protected from further violence.
245. Section 60CC(3)(l): The Minute of Orders upon which the husband relied sought orders that he be permitted to institute further proceedings after 15 months of supervision, seeking that time not be supervised.
246. Counsel for the husband submitted that there should be an order made which would permit the husband to renew his application to spend time with the children in any event, if he can demonstrate that he is fit to do so. That application, in effect for any order made at the conclusion of this hearing to be made as an interim order, was opposed by the wife and the ICL. Dr R gave evidence about the difficulty of assessing the husband’s progress in circumstances where he was not frank with the assessment process and has actively concealed vital information from the single expert, with the assistance of his family. There could be no confidence that, at some future time, the husband would be frank and open with Dr R in any further assessment. The ICL submitted that the children had been involved in the process of this litigation and the District Court proceedings for over three years and that the children need these proceedings to be finally resolved and to get on with their lives. That submission was supported by their therapist. I accept that it is not in the interests of the children to make any interim order in these proceedings.
247. Section 60CC(3)(m): The husband has not fulfilled his obligation in relation to the financial support of the children. In a period where he has received, according to the records produced by the workers’ compensation insurer, almost $2,000 per week and spent $450,000 on legal fees, he has provided little financial support for the children. The wife has been responsible for their financial support including their school fees.

CONCLUSION

248. It is not possible for the children to have any face to face contact with the husband that will be keep them physically or psychologically safe. No orders will be made for face to face contact.
249. Dr R considered that it would be appropriate for the paternal family to communicate with the children in writing and by sending gifts. It is also appropriate that he be kept informed of important matters involving the children and provided with information about their progress.

PARENTAL RESPONSIBILITY

250. There is no presumption, having regard to the findings relating to family violence, that there should be equal shared parental responsibility. Since the husband will have no face to face time with the children and he is restrained by the current Orders from any contact with the wife, it is neither reasonably practicable nor possible for him to participate in decision making with her. The Orders will provide that the wife have sole parental responsibility for the children.