Family Court of Australia

Padley & Padley [2021] FamCA 604 
File number(s):	SYC 1219 of 2015	
		
Judgment of:	HARPER J	
		
Date of judgment:	17 August 2021	
		
Catchwords:	FAMILY LAW – PARENTING – Undefended hearing – Sole parental responsibility – In circumstances where the father is mentally unwell – In circumstances where the father has filed a notice of discontinuance – Orders made for the mother to have sole parental responsibility of the parties’ child – Orders made for the child to live with the mother and spend time with the father only if the child indicates that she would like.   	
		
Legislation:	Family Law Act 1954 (Cth) ss 60CA, 60CC, 61C, 61DA, 65D, 65DAB, 68B
Mental Health Act 2007 (NSW  	
		
Cases cited:	Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537
Dundas & Blake [2013] FamCAFC 133
Goode & Goode (2006) FLC 93-286
Jollie & Dysart [2014] FamCAFC 149
Padley & Padley [2020] FamCA 717
Tibb & Sheean (2018) 58 Fam LR 351 	
		
Number of paragraphs:	51	
		
Date of hearing:	29 July 2021 	
		
Place:	Sydney	
		
Solicitor for the Applicant:	Mr Padley	
		
Counsel for the Respondent:	Mr Jackson	
		
Solicitor for the Respondent:	Eleanor Murphy & Company Solicitors	
		
Solicitor for the Independent Children's Lawyer:	Adams & Partners Lawyers	

ORDERS
	SYC 1219 of 2015	
 	
BETWEEN:	MR PADLEY
Applicant
	
AND:	MS PADLEY
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	HARPER J	
DATE OF ORDER:	17 AUGUST 2021	

THE COURT ORDERS THAT:

1.	The Respondent Mother have Sole Parental Responsibility for the child X born … 2013.
2.	X live with the Mother.
3.	Pursuant to s 68B of the Family Law Act 1954 (Cth) (“the Act”), the Applicant Father be restrained from attending on X’s school, or home or the Mother’s workplace.
4.	Pursuant to s 65Y of the Act, the Mother is permitted to travel overseas with X.
Upon indication being given by X that she wishes to have some limited contact with the Father and/or any of his family members:
(a)	the Mother will facilitate the delivery of any cards and gifts forwarded to the mothers home, by post, for X ;
(b)	the Mother will facilitate such time as she determines is safe and appropriate for X at that time.
5.	The Mother be permitted to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales that the Child registered as X Padley born … 2021 now be registered as X Padley Stant.

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

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
1	These proceedings relate to the parenting arrangements for the child X Padley (“the child”) (born … 2013). This judgment concerns final parenting orders to be made in respect of the child after an undefended final hearing.
2	Under existing arrangements, X lives with the Mother and spends no time with the Father. The currently operating orders were made by Senior Registrar Campbell by consent on 5 November 2019. As a consequence of those orders, the time that was then taking place between the child and the Father was suspended. The child has not spent time with the Father since November 2019. 
3	As explained later in these reasons, by the end of 2020, there was evidence the Father’s engagement with the proceedings was faltering.
4	The proceedings were listed for case management on 28 June 2021 before me. The Father did not appear. On that occasion the proceedings were listed for an undefended hearing on 29 July 2021. Evidence filed by the solicitor for the Mother satisfied me that the Father had been given notice of the listing for an undefended hearing, and he had been served with the Mother's evidence, and the material relied upon by the Independent Children’s Lawyer (“ICL”). Indeed, the Father was present in the hearing on 29 July 2021 by telephone. I was satisfied it was appropriate to proceed on an undefended basis.
MATERIAL RELIED UPON
5	The mother relied upon the following documents:
(a)	Her Further Further Amended Response to Initiating Application filed 27 July 2021;
(b)	Her affidavit filed on 15 July 2021;
(c)	Affidavit of Dr V sworn on 31 August 2021 
6	Her evidence was uncontested. 
7	The ICL relied on the following documents:
(a)	His case outline filed on 26 July 2021. 
8	Both the Mother and the ICL relied upon subpoenaed documents as well as a number of reports. This includes: 
(a)	Dr H’s report dated 16 December 20218
(b)	Family Consultant Report from Ms T dated 18 May 2018
(c)	Magellan Report dated 20 December 2019
9	The ICL also relied on the Child Dispute Conference Memorandum by Ms T dated 14 February 2018 and Dr H’s report dated 18 February 2016. 
10	The following documents were received into evidence:
Exhibit Label	Document	Tendered by	
A	Respondent Mother’s Tender Bundle 1 	The Mother	
B	Respondent Mother’s Tender Bundle 2	The Mother	
ICL 1	ICL’s Tender Bundle 	The Mother 	
11	The Mother seeks orders for sole parental responsibility, that the child live with her and spend no time with the Father, an order pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) that the Father be restrained from attending the child's school, home or the Mother’s workplace, permission for overseas travel, and for a change to the child's name from X Padley to X Padley Stant.
12	The ICL broadly supports the Mother's proposed orders other than the injunction pursuant to s 68B. The ICL also was ambivalent about orders regarding the child's name.
13	The parties began cohabitation in 2010 and married in 2011. They separated in October 2014. At separation the Mother left the family home with the child and moved to her parents' home in Suburb S.
14	After separation, the parties organised for the child to spend time with the Father, supervised by the Mother. The Father commenced proceedings in the Federal Circuit Court of Australia on 26 February 2015. Orders were then made on 14 August 2015 for time with the Father to be unsupervised. The child spent time with the Father thereafter between August 2015 and October 2019 in accordance with orders which were varied from time to time. Broadly speaking, these orders provide for the child to spend time with the Father a few times a week for a few hours.
15	The child made disclosures, which I will detail later in these reasons, to the Mother on 13 October 2019. The Mother contacted the Police and the Department of Family and Community Services. On 5 November 2019, orders were made by consent suspending the Father's time with the child. The child has spent no time with the Father since then. An order was made for a Magellan report.
16	On 30 January 2020, the Mother filed an Amended Application in a Case seeking orders to appoint a new single expert to prepare an expert report. This is because expert evidence had been prepared by Dr H previously in the proceedings. The Mother sought the appointment of a different expert, but the Father argued for Dr H to be retained and a further expert report be prepared. I acceded to the Father's application concerning Dr H: Padley & Padley [2020] FamCA 717. 
17	Orders were made on 4 September 2020 for the parties to file and serve consolidated affidavits by 30 October 2020, in time for proposed interviews with Dr H. The Father filed and served an affidavit on 27 October 2020 which simply stated: "The dad of X is loving and caring". 
18	The Father filed an Application in a Case on 10 November 2020 seeking resumption of supervised time with the child, accompanied by an affidavit which simply repeated: "The dad of X is loving and caring". He filed a Notice of Discontinuance of this Application on 28 January 2021. 
19	On 29 January 2021, I ordered the Father to co-operate with the ICL to obtain legal aid funding to enable the expert report to be completed. It appears the father's application for legal aid was refused. Interviews with the expert never took place.
20	As noted, the Father then filed a Notice of Discontinuance of all his applications on 8 June 2021.
legislative framework
21	Although the proceedings were undefended, the statutory pathway must be followed. In parenting proceedings, the best interests of a child are the paramount consideration: s 60CA of the Act.
22	Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.  Section 61C of the Act makes clear that, unless displaced by Court order, both parties retain the duties and obligations of parental responsibility which may be exercised either jointly or severally: Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422; [2006] FamCA 1346 ("Goode & Goode"). 
23	Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child. 
24	The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for their parents to have such equal shared parental responsibility: s 61DA(4) of the Act. In Dundas & Blake [2013] FamCAFC 133, the Full Court held, in considering the operation of s 61DA(4), that s 61DA is mandatory in requiring application of the presumption "until a level of satisfaction on the evidence is reached that it would not be in the interests of the child for it to apply" (at [57]); there needs to be "explicit and cogent reasons why the presumption should be rebutted" (at [61]). Those reasons are to be found in the consideration and discussion of the factors in s 60CC(2) and (3) of the Act. 
25	If the presumption does not apply or is rebutted, the consequence is that the power to make parenting orders pursuant to s 65D is "at large", subject to the best interests of the subject children being the paramount consideration: Cox & Pedrana  (2013) FLC 93-537; (2013) 48 Fam LR 651; [2013] FamCAFC 48 at [19]. The decision in Goode & Goode makes clear, even if the presumption is not applied or is rebutted, that the Court is to make such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s 60CC of the Act. 
26	The best interests of a child are to be determined by an examination of the considerations set out in ss 60CC(2) and (3) of the Act. Section 60CC(1) provides that the Court "must consider" the matters set out in ss 60CC(2) and (3). Although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36; at [48]; Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142; ("Tibb & Sheean") at [84].
27	I have considered all the statutory factors. I will discuss only those that are relevant on the evidence of the Mother, her proposal and the submissions of the ICL. 
28	I am satisfied in this matter the presumption is rebutted in the best interests of the child, for the reasons given below. In summary, there is explicit and cogent evidence that the Father has serious mental health problems, his parenting capacity is severely compromised and the child fears him. It is in the best interests of the child that the Mother alone have the responsibility to make decisions concerning major long terms issues relating to the child. 
29	Because of the risk factors discussed under s 60CC(2)(b), I find that the child does not have a meaningful relationship with the Father at present. It also seems unlikely the child could form a meaningful relationship with her father in the future unless there is a material improvement in his mental health.
30	In relation to s 60CC(2)(b), which must be given greater weight than the question of a meaningful relationship, a reasonably brief discussion of the evidence supports a conclusion of unacceptable risk from the Father. 
31	The Mother gave evidence that prior to the parties’ marriage in 2010, the Father had a diagnosis of schizoaffective disorder. After the child's birth, the Father developed a controlling attitude toward the Mother, insisting that she remain with him at all times and fighting with her about taking the child to meet up with her family and friends without him. He lost his temper and he screamed at the mother.
32	In October 2015, after the Father had spent time with the child in the morning, the Mother observed him engaging in stalking behaviour which made her feel anxious and worried about his intentions. She obtained a provisional ADVO. This was dismissed after a Local Court hearing in March 2016.
33	On 6 June 2016, her Honour Justice Rees made interim orders for the child to spend accompanied time with the Father. On 10 November 2017, further interim orders were made for additional accompanied time, with the necessity for accompaniment reducing on a gradual basis. The parties negotiated fresh interim orders on 24 April 2019 for an extension of the child’s time with the Father and for orders for accompaniment be discharged and replaced with an undertaking from the Father that, during his time with the child on the weekends, at some stage he would “check in” and spend time with his family members for half an hour.
34	These were the orders operating as at October 2019. The child spent time with the Father on the weekend of 12 and 13 October 2019 from 9am until 5pm. On 13 October 2019, after the child was returned to the Mother, she made concerning disclosures, including saying that “Mummy, Daddy said that girls suck boys’ penises?” The mother also deposed the following disclosures:
“Daddy told me and he showed me videos. He showed me two videos...” she put her two fingers up in front of me and then continued “…and in the videos a man was sticking his penis in a girls bottom”.
I was in shock and trying to figure out how to respond to her and how to deal with it. She then said to me:
“Mummy, Daddy did the wrong thing didn’t he? That is a red flag, isn’t it?”
I replied:
“Absolutely, you’re right.”
And she replied:
“A big dark red flag.”
35	Later, the child said to the Mother: “Mum, you know the stuff that comes out of the penis, Daddy told me what it is called, but I forgot.”
36	The Mother reported these disclosures to Suburb O Police station. An appointment was made for the Mother to bring X to W Services at Suburb Y on 15 October 2019. After interviews, the police formed the view that they lacked sufficient evidence to charge the Father or take any action at that time. 
37	On 24 October 2019, the Mother filed an Application in a Case seeking orders for the child’s time to be suspended with the Father. On 5 November 2019, orders were made by consent suspending time with the Father until further order.
38	A Magellan report was then ordered on 12 November 2019. 
39	The Mother then took the child to her General Practitioner (“GP”). The child made similar disclosures about the Father to the GP, who made a mandatory report. The Mother then took the child to consult Dr V, psychologist, on 25 November 2019. Further interviews were conducted by the police at the offices of W Services in Suburb R on 11 February 2020.
40	At this time, the Mother noticed the child began to refer to the Father as “Mr Padley” rather than “Daddy”. The Mother observed the child exhibited fear in relation to the Father.
41	The police closed their investigation. However, the subpoenaed material shows that officers of FACS may have formed the view that sexual abuse was substantiated.
42	The child’s disclosures are concerning and coupled with the evidence of the Father’s current mental health, discussed below, they support a conclusion that the Father presents an unacceptable risk to the child, despite the police deciding to take no action of a criminal nature.
43	Some brief reference to hospital records tendered by the ICL document recent events exposing the fragile nature of the Father’s mental health.
44	Mental Health Progress Notes between 15 November 2020 to 3 December 2020 record that the Father admitted to Z Hospital after apparent suicide attempt. He was found lying in a crucifix posture across railway tracks in his underwear. He was assessed as having a psychotic relapse of longstanding schizoaffective disorder requiring inpatient admission. It appears the Father was detained under the Mental Health Act 2007 (NSW). He appealed this decision, but withdrew the appeal and was transferred to AA clinic where he was admitted on 3 December 2020. He was placed in the care of his psychiatrist Dr G. While in AA Clinic, there is evidence that the Father behaved in a sexually inappropriate way towards female patients. He demanded to leave in a heightened fashion and threatened to damage hospital property. He was also observed making racist remarks.
45	The Father was then admitted to BB Hospital from 18 March 2021 to 26 May 2021. On 18 March 2021, there was a Mental Health Inquiry Tribunal hearing in which the Resident Mental Health Officer, Dr CC, requested an involuntary inpatient order for 8.5 weeks. The Father was diagnosed with severe relapse of schizoaffective disorder with manic and psychotic symptoms. The Tribunal determined the Father to be a mentally ill person and made the involuntary inpatient order. The Father appealed to the Mental Health Review Tribunal on 26 March 2021 against a refusal to discharge him. This appeal was unsuccessful and he remained as a patient for a further 2 months. In a second Mental Health report to the Tribunal, a request was made for a 6 month community treatment order on 21 May 2021. The Father was then discharged with a 6 month community treatment order in place.
46	The evidence leaves little doubt that Father’s mental health is severely compromised. I infer he makes the child anxious and she fears him. The Mother’s evidence supports this conclusion. 
47	I am persuaded that the Father presents an unacceptable risk to the child which cannot be ameliorated in a realistic way to permit the child to spend time with him. I note that he, of course, did not contend otherwise despite being present in the hearing and despite being invited to speak. When asked at the hearing if he wanted to say anything the Father repeated "The dad of X is loving and caring". This simply repeats the Father’s affidavit evidence mentioned earlier.  I accept this is how the Father views himself and how he would wish to be towards the child. However, it also indicates his own mental health struggles which makes this more of an aspiration than a presently achievable goal.
48	The child has a warm and positive relationship with the Mother. She has no positive relationship with the Father. The Mother's evidence shows she is fearful of her Father. The evidence from hospital records shows the Father's parenting capacity is presently severely diminished by reason of his mental health problems. The Mother gave evidence that in her view, the Father was unwilling to have a relationship with the child. This may be true, but it is not possible on the evidence and in light the Father's mental health, to form a clear view of his willingness or otherwise to have a relationship with the child. He is clearly at present unable to pursue a relationship with the child.
49	In light of the Father’s mental health problems, and his erratic and past violent conduct I am satisfied the restraints sought by the Mother are appropriate. If not made, their absence will likely have an adverse impact on the Mother’s emotional equilibrium and her parenting capacity. I also take account of the fear felt by the child about the Father.
50	I note that the mother seeks an order permitting a change to the child’s name from Padley to ‘Padley Stant’. The ICL did not oppose this, however did point out that the mother’s surname was ‘Stant Padley’ not ‘Padley Stant’. In the circumstances, and in light of the proposed order for sole parental responsibility in favour of the mother, I am satisfied such an order is appropriate, reflecting a decision on the child’s name made by the mother.
51	I am satisfied the orders proposed by the Mother are in the child's best interest. I will make those orders.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.	

Associate:

Dated:	17 August 2021