Lancefield & Lancefield No. 2 (2020) FamCAFC 312

The family in Lancefield & Lancefield (No. 2) [2020] FamCAFC 312 have had their matter remitted for hearing.  This decision was delivered on 22 December 2020.

The children were found to be able to live with either parent. The elder child sought the stability of remaining with the father and the younger child wanted to change his residence to reside with the mother.

The trial judge made findings that the father monitored the mother’s private information over a lengthy period of time and because of this, he was an unacceptable role model to the children of controlling behaviour.

The family report writer had said:

“The critical factor in the Court’s final determination will be whether the Court finds that the father has demonstrated controlling behaviour with regards to the mother.”

The trial judge said this:

“I have formed the view for the reasons given by the Family Consultant and also considering the mother’s mental health, that the greatest weight should be given to the risks to the children from the father’s established conduct in seeking to exercise sole parental responsibility and to control and minimise the mother’s involvement in the children’s lives, and in failing to actively promote their relationship with her.

The factors relating to the father’s coercion or control and failing to support the children’s relationship with the mother support a change of primary residence.”

The court determined that his inability or unwillingness to facilitate or promote a relationship with the mother or to allow the relationship to occur without attempting to control it and found:

“the problems inherent in him modelling a controlling domestic relationship with the mother through surveillance of her personal electronic communications…. constitutes a deficit in his capacity to provide for their emotional needs”.

The mother’s mental health deteriorated in the context of workplace bullying. She had been involved in a trial against another employee who the mother said indecently assaulted her in 2009.

By late 2015, the mother had commenced antidepressant medication and began to experience suicidal ideation.

By November 2017, the mother was suicidal and was admitted voluntarily to a mental health unit.

The father thought the children’s time with the mother needed to be supervised. She did not. She chose not to telephone the children nor see them under supervision.

The mother wrote the children a letter the trial judge described as entirely inappropriate.

It indicated “reduced parenting capacity”.

There was common ground that the father had accessed the mother’s emails in 2011.

The reactivation of the family’s iPad in February 2018 revealed the mother’s messages and internet searches, including the use of her phone. The iPad operating system was part of a family sharing application.

The father acted on searches such as:

• How to tie a hangman’s noose;
• How to disappear without a trace;
• How to completely change your appearance; and
• How to disappear from your husband.

The mother considered his looking at her information as stalking and intimidating. She asked the police to obtain an AVO against the father and they declined to do so.

The father sought a work transfer to be close to his family. The transfer meant the children would in fact be living closer to the mother, but she was angered by the father’s failure to consult her. The father enrolled the children in a school without discussion with the mother first.

The appeal is an appeal that is based on a challenge to the exercise of a discretion. In dealing with the iPad, the Full Court said:

“Contrary to the trenchant criticisms made by counsel for the mother and the ICL that the father failed to disclose that he accessed the data, the inconvenient truth is that he did disclose it, and the disclosure was made almost immediately after the iPad was switched on and the mother’s information popped up.”

The Full Court considered that the father seeking advice as a result of what he had seen in the searches was appropriate. The Full Court said:

“In any event, his Honour should have gone on to find that the father acted promptly, appropriately and with obvious concern for the mother’s welfare…”.

A witness gave evidence and the Full Court said:

“The primary judge said this witness gave evidence as summarised at [94]. Those findings misstate the evidence and provide no foundation for the findings the primary judge went on to make at [96] and at [97].”

The Full Court went on and said:

“The effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission [101].”

The Full Court went on to consider whether the father had supported the children’s relationship with the mother. The Full Court, in considering this, came to the conclusion:

“We agree with the submission by the father that the fact that the children had been in the father’s primary care for just shy of three years, the children had excellent relationships with the mother and spent time with her as the parties agreed, was highly relevant to an assessment of his support for the mother’s relationships with the children and role in their lives.”

The Full Court then considered the children’s views.

The court accepted the father had established appealable error and the matter was remitted for hearing.