Asquith and Asquith
[2017] FCCA 580
•28 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASQUITH & ASQUITH | [2017] FCCA 580 |
| Catchwords: FAMILY LAW – Parenting – Mother sought “no contact” order for the children with the Father – significant history of violence and mental health issues involving the Father – the Father’s treating psychiatrist has reservations about the Father’s insight into the extent of his mental health issues – the Court expert considered that in the light of the Father’s criminal history for assault of which the expert was unaware and his more extensive psychiatric history the best interests of the children indicated that the Father spend no time with the Father – Father denies significant criminal history including for assault on his wives – Father sought either to not acknowledge or to diminish his significant mental health history – combination of mental health and criminal history and unpredictability of the Father inevitably lead to Orders for there to be no time between Father and children. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2)(a) & (b) & (2A), 60CC(3)(f) and (j); 61DA |
| Cases cited: Johnson & Page (2007) FLC ¶93-344 |
| Applicant: | MR ASQUITH |
| Respondent: | MS ASQUITH |
| File Number: | CAC 687 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 June 2016 |
| Date of Last Submission: | 10 August 2016 |
| Delivered at: | Canberra |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Wilson |
| Solicitors for the Applicant: | Friedlieb Byrne |
| Counsel for the Respondent: | Ms S Shearman |
| Solicitors for the Respondent: | Granleese & Co |
| Counsel for the Independent Children's Lawyer: | Mr G Stagg |
| Solicitors for the Independent Children's Lawyer: | Evans Family Lawyers |
ORDERS
The Mother have sole parental responsibility for the children of the marriage: X born (omitted) 2004; Y born (omitted) 2007 and Z born (omitted) 2008 (“the children”).
The children live with the Respondent Mother.
The Father is to have no contact with the children.
The Father is otherwise restrained, pursuant to Section 68B of the Family Law Act 1975 from:
(a)approaching or coming within 100 metres of any school or other educational institution which the children might attend or at which they are enrolled;
(b)otherwise approaching or coming within 100 metres of the Mother or the children.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached to the Order document.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Any and all other outstanding Applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Asquith & Asquith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 687 of 2012
| MR ASQUITH |
| Applicant |
And
| MS ASQUITH |
| Respondent |
REASONS FOR JUDGMENT
Introduction
This matter concerns a parenting Application brought by the Father in relation to his young children from his most recent relationship. He has a number of older children from an earlier relationship. None of those older children see their Father.
The Father seeks to spend supervised time with his three young daughters - 13 year old X, 9½ year old Y, and 8½ year old Z (“the children”).
The Father has a significant history in relation to domestic violence. He also has a significant history in relation to his mental health. He does not always acknowledge either of these very important histories, and/or he not infrequently underplays or understates them.
The parties here had an arranged marriage which took place in (omitted) 2003. The Wife at the time was significantly younger than the Husband, she being 19 years of age. At the time of their marriage, the Mother was unaware of the Father having been married previously, or that he was the Father of five other children.
The Mother’s evidence was that the Father was physically violent towards her. Independent, documentary evidence supports the Mother’s accounts that the Father was physically and emotionally violent towards her. This violence led, on more than one occasion, with the Father being convicted of assault (and worse) in relation to the Mother.
The Mother also gave evidence that the Father’s violence was perpetrated in front of the children. The children, she says, are now rather fearful of their Father. For example, the Mother says that the only time the children have seen the Father since 2012 was their attendance upon Dr R for the purposes of him preparing a report for these proceedings. The Mother said that following those interviews, the middle child, Y, had difficulties eating for some six months or so afterwards.
It is against this general background – detailed of course later in these reasons – that the Mother seeks Orders that the children spend no time with their Father.
Section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) sets out the “primary considerations” for the Court in determining Orders that are in the best interests of the children, in this case, 13 year old X, 9½ year old Y, and 8½ year old Z.[1] It has been acknowledged that there is not any necessary “hierarchy” of application between the “primary” and “additional” considerations in s.60CC(2) and (3) of the Act. All that ultimately matters is proper consideration of the evidence in the light of the “miscellany of [statutory] considerations” in determining what Orders are in the best interests of the children.[2]
[1] The prescription to determine Orders that are only in the children’s “best interests” is set out in s.60CA of the Act.
[2] See the comments of May and Thackray JJ in Mulvany v Lane (2009) 41 Fam LR 418 at [76] – [77].
Those considerations direct the Court to have regard to the children having a meaningful relationship with both parents, and the need to protect the children from physical or psychological harm “from being subjected to, or exposed to, abuse, neglect or family violence.”
The Applicant Father has had and continues to have significant mental health issues (including schizophrenia and various psychotic conditions), only some of which he acknowledges and otherwise he down-plays, even to his treating psychiatrist. He also has a very significant criminal history, including convictions for assault on his first Wife and later convictions for assault on the Mother in the current proceeding. Sometimes he acknowledged the accuracy of the various tendered police records regarding his criminal history; at other times he insisted that he never hit either of his Wives, or the children the subject of this proceeding.
The expert (psychiatrist) retained for the current matter, Dr R, was advised by Counsel for the Mother and for the Independent Children’s Lawyer (“the ICL”) of the Father’s criminal history. He was also apprised of the opinion and comments of the Father’s treating psychiatrist and a more detailed psychiatric history to that which he had been unable to elicit from the Father.[3] Dr R confirmed on the basis of that history, and on the basis of comments and concerns expressed by the Father’s treating psychiatrist, that (a) he was not previously aware of the extent of the Father’s history of violence, (b) he was much more concerned about the risk to the children even commencing any face-to-face time with the Father, and (c) therefore his previous recommendation for “recognition” time for the children with the Father ought not now proceed. He doubted whether it was [then] in the children’s best interests for them to spend any time with the Father.[4]
[3] See Transcript (21st June 2016) pp.35 ff. Hereafter “T” followed by the page number.
[4] Among a number of places, see T 24, 26, 29, 30, 31, 32, 33, 34 & 36.
These young children, as well as their Mother, have been subject to significant abuse and family violence from the Applicant Father over a significant period of time.
In my view, the evidence clearly pointed to this being one of those exceptional cases where it is not in the children’s best interests to spend any time with their Father. His history of violence, and his psychiatric history, individually and collectively, point to this conclusion. Moreover, having regard to the statutory requirement to protect children, and indeed to make such protection a priority, which must be the Court’s primary focus in the current matter (s.60CC(2A)).
Accordingly, the Orders sought by the Mother (essentially supported by the ICL) should be made. In my view, those Orders are plainly in the best interests of these children.
Orders sought by Applicant Father
The Father’s Case Outline, filed 8th June 2016 set out his “Orders Sought”, namely:
Father seeks:
a. Children live with the Mother;
b. time with Children initially supervised at (omitted) Contact Centre two hours per fortnight
Orders sought by Respondent Mother
The Respondent Mother’s Minute of Order Sought, filed 19th July 2016, outlined the following:
1. That the Mother have sole parental responsibility for the children of the marriage: X born (omitted) 2004; Y born (omitted) 2007 and Z born (omitted) 2008 (''the children").
2. The children live with the Respondent Mother.
3. That the father is to have no contact with the children.
4. That the father is otherwise restrained, pursuant to Section 68B of the Family Law Act 1975 from:-
a. Approaching or coming within 100 metres of any school which the children might attend or at which they are enrolled.
b. Approaching or coming within 100 metres of the mother or the children.
Orders sought by Independent Children’s Lawyer
In Written submissions, filed 10th August 2016, Counsel for the ICL confirmed that the ICL’s position – post trial – was that there should be no time for the children to spend with their Father, and that they should live with their Mother who should have sole parental responsibility.[5]
[5] By email dated 23rd November 2016 the ICL confirmed that the position outlined in Counsel’s submissions regarding the Orders Sought remained.
ICL’s Chronology of Father’s Mental Health
For context and the significant role that the Father’s mental health played in the course of the proceedings, the ICL helpfully provided a separate chronology in relation to these matters. The chronology plainly shows that there have been significant “mental health events” since 1994. And as noted further below, the Father continues to see a psychiatrist who unfortunately but significantly doubts important matters in relation to the Father’s insight and much else besides. The “mental health chronology” summarily paints a disturbing picture, which even more alarmingly is unrecognised and deliberately minimised by the Father. The same is regrettably true in relation to his criminal history noted later in these reasons. The mental health summary, which I accept in every relevant respect, is as follows:
| DATE | EVENTS | EVIDENCE |
| July 1994 | Admitted to (omitted). Adjustment Disorder and Depressed mood. | (omitted) subpoena |
| 26-26 July 1995 | Admitted to (omitted) Hospital on Schedule 2 certificate. Report of acute hysteria Recorded as “insightless”, “immensely agitated”. | (omitted) subpoena – (omitted) hospital records |
| 28 Aug 2002 | Mental Health Act attendance. | NSW Police Records |
| 27 Nov 2002 | Sectioned under Mental Health Act | NSW Police Records |
| 28 Nov 2002 | Sectioned under Mental Health Act – Reported had not taken medication for paranoid schizophrenia for a month. | NSW Police Records |
| 30 Oct – 2 Nov 2008 | Several calls to Mental Health Team Access Line and NSW police with concerns for Mr Asquith’s mental health. | (omitted) subpoena AccessLine records. NSW Police Records |
| 3 Dec 2009 | Taken to accident and emergency by police after arrest for assault of wife. Police concern about his Mental Health. Saying if can’t have family does not want to live. | (omitted) - Ambulance service notes |
| 3 – 10 Oct 2012 | Admitted to (omitted) with “psychotic episode”. | (omitted) subpoena |
| 29 Nov 2012 | Brought to (omitted) Hospital by police with psychiatric problem after not taking his medication. Reported to be hearing voices. Paranoid. | |
| 4 Dec 2012 – 10 Jan 2013 | Involuntary admission to (omitted). Diagnosed with paranoid delusional disorder. | (omitted) District subpoena |
| 4 Jan 2013 | Mental Health Tribunal issues 6 month community treatment order | (omitted) District subpoena |
| 5 July 2013 | Mental Health Review Tribunal extends community treatment order to 4 January 2014 | (omitted) District subpoena |
| 8 Jan 2014 | Mental Health Review Tribunal extends community treatment order to 7 July 2014 | (omitted) District subpoena |
The Father’s Oral Evidence
The Father’s oral evidence was characterised by much contradiction about many matters, but primarily concerning his criminal history for assault, his psychiatric history and his often blanket denials regarding violence (of different kinds) towards either the Respondent Mother and or the children the subject of the Application before the Court. To put such matters in context, it is important to have regard to the Father’s criminal history, which was set out in the “Criminal History” provided by the NSW Police (Exhibit A). His evidence, summarised, was as follows.
At the outset of his cross examination by Counsel for the Mother, the Father denied he ever yelled at the Mother; he also said that he was never violent.[6] He was then taken through something of a chronology of assault proceedings in which he was involved, in various courts, including those occasions where he pleaded guilty for assault and or occasions when he pleaded not guilty but was nonetheless convicted.[7]
[6] T 9.
[7] See T 9 – 11.
As earlier indicated, his criminal history, provided by NSW Police, became Exhibit A. He accepted the accuracy of that history, which included convictions for assault on his previous Wife, Ms I, in 1997, and on Ms Asquith in 2010.[8] Yet later in this same cross examination, the Father somewhat blankly denied his convictions and that he was ever violent (or angry), including him spitting on his Wife.[9]
[8] T 11.
[9] See T 14, 15, 16, 17 and 44.
Sometimes he contended that he had been convicted on the basis of “false evidence” or that he pleaded guilty to avoid further confrontations with his Wife.[10]
[10] T 11 & 13.
In response to questions about comments made by the children to the Police about the Father’s violence towards their Mother and to them, the Father said that the Mother told them what to say.[11]
[11] T 15.
In relation to his eldest daughter, X, telling the Police of the Father’s violence, the Father said that X was “lying.”[12]
[12] T 19 & 20.
The Father confirmed that he suffered from depression but said he did not take medication.[13] This was so notwithstanding that there was evidence of medication found in his residence and that he had told a Police Officer that he was taking it, and there were separate records from, for example, (omitted) Hospital confirming the Father being prescribed medication for his mental health, dating back to 2012.[14]
[13] T 21.
[14] See T 22 ff.
In his trial affidavit, at par.23, the Father said that he was forced to marry the Mother, and that in 2012 he told the Police at (omitted) that in 1985 he was forced by KGB officers to marry his first Wife (and that police records that record this are incorrect). He also said that he had previously stated that he had confessed to killing his brother-in-law and two other males in (country omitted) in 2004.[15] In the same place, he also denied ever making these allegations and said that the police report is incorrect.
[15] T 25 – 26.
He confirmed that in his view the Mother is a poor parent; he also confirmed that he tried to stop the Mother coming to Australia. He believes that the Mother’s brothers are involved with Al Qaeda. He said he thought that the children should know about this but was unable to explain why/how this would assist them or be in their best interests.[16] He said also that his daughter X would have been better off not spending time with her Mother; he confirmed that he could not say anything good about the Mother.[17] This is despite indicating during the interviews with Dr R that he wished to reconcile with the Mother and for the children to continue to live with her.
[16] T 28.
[17] T 29.
The Father said that he did not tell his treating psychiatrist, Dr G, about his criminal proceedings in 2012 and 2013.[18]
[18] T 29. See further his comments at T 30.
In October 2012, the Father confirmed that he called the police to tell them that two men had attended his residence and that they had strapped a bomb to the Father’s home. He said he thought that they might blow him up. After this, the police took the Father to hospital because they were concerned about the Father’s “state of mind”.[19]
[19] T 32.
The Father said that Dr G’s report which refers to the Father telling him of having killed Al Qaeda operatives in (country omitted) was “probably mistaken.”[20] He confirmed however that he told Dr G that his telephone was tapped. He no longer had that belief but did at the time of telling Dr G. He also confirmed that he told Dr G that sometimes people could read his mind.[21] He confirmed that he does not now hold these beliefs because he believes that his medication now assists him.[22]
[20] T 33.
[21] T 34.
[22] T 34.
He said that he might be required to take some [named] medication for the rest of his life to assist him with his mental health issues.[23]
[23] T 35.
He also said that Dr R’s report accurately recorded what the Father had told him, which included the Father seeking to reconcile with the Mother.[24] The Father, at trial, acknowledged that the Mother had re-married, which now made the possibility of any reconciliation impossible.
[24] T 35.
Initially, the Father gave evidence that his mental health issues consisted of depression, anxiety and post-traumatic stress disorder. However, in answer to questions put to him by Counsel for the ICL, the Father confirmed that he had experienced “psychosis”; various of these episodes were then put to the Father.[25] After telling the Court that his mental health issues only commenced in 2012, the Father said that he could not remember that papers he filed with the Migration Review Tribunal in 2000 (which papers were annexed to the Mother’s trial affidavit – annexure F) referred to him having mental health issues.[26]
[25] T 43 ff.
[26] T 42.
If permitted to see his children, he said that he would talk with them and sort out any problems they might have.[27]
[27] T 45.
The Mother’s Oral Evidence
Again very briefly stated the Mother’s oral evidence was as follows.
I should note however at the outset that the evidence of the Mother was properly accepted and conceded by Counsel for the Father, namely that she was genuinely scared of the Father, and “genuinely worried”, and that her evidence was that nothing would make her feel safe about the children spending time with the Father.[28]
[28] See T 68.
She confirmed that the Father regularly suffered from personality changes, and that he was “angry” most of the time. She also said that he could change in his mood “10 times a day” without notice.[29] She did not know until the trial that the Father was taking medication for his various mental health issues.[30]
[29] T 54 – 55.
[30] T 58.
Even if the Father was taking his medication properly the Mother said that she would still be worried about the children spending time with him. Nothing would make her feel safe in this regard because she could not trust the Father.[31]
[31] T 58 – 59.
The Mother confirmed that she and the children have been receiving counselling since separation from the Father in 2012 - which was the last time the Father saw the children except for the time when everyone saw Dr R, after which the Mother said that the children were very unsettled and fearful, and that one of the children refused to eat properly for some time after the interviews.[32]
[32] T 62 – 63.
In addition to the Father’s assaults on the Mother (e.g. the Father’s conviction on charges of assault occasioning actual bodily harm, common assault, and intimidation, all in relation to the Mother), the Mother confirmed that the Father had been violent at the children’s school.[33]
[33] T 69.
Should it need to be noted or recorded, the Mother’s account of the Father’s violent conduct is well supported by the police record before the Court. Likewise, the evidence of the Father’s mental health issues is similarly well supported by the evidence of Dr R, the report from the Father’s treating psychiatrist (Dr G), and the evidence of Mr R, an older son of the Father from an earlier relationship (noted below).
The Evidence of Mr R
Mr R is the Father’s son from an earlier marriage. He is a (occupation omitted) in Sydney. He gave evidence via telephone in support of the Respondent Mother.
From his very brief evidence, it is sufficient to note that this much older son of the Father (who he has not seen for 18 years) said that his experience of living with his Father (in the mid to late 1990s) was that the Father was violent towards his Mother, his sister and himself, and that his Father was very regularly emotionally volatile and therefore unpredictable.[34] I simply observe that this son’s evidence was consistent with the evidence of the Mother in the current proceeding.
[34] See T (21st June 2016) pp.7 – 14. Hereafter, all transcript references will be to this date.
Evidence of Dr R
In the first instance, it is relevant to note that Dr R's Report (Exhibit D) was released on 22nd June 2015. In that respect, it was a little dated by the time of the hearing in mid-June 2016. Nonetheless, it provides important insight into the Father’s attitudes and other relevant aspects of his parenting capacity, as well as being a comparator for Dr R’s oral evidence during the trial. It is apposite also to record that Dr R’s original recommendation was for so-called “recognition time” only as between the children and the Father. In his oral evidence, in the light of material put to him, notably but not only by the ICL in relation to the Father’s criminal and psychiatric history, his recommendation changed on the basis that even recognition time could not safely be proposed.
The first part of Dr R’s report outlined the Father’s admission to the psychiatric facility, (omitted) on 4th December 2012. In the course of that account, the Father’s psychiatric history was recorded, which included various episodes and reports (with dates supplied) of the Father, at different times, having “acute hysteria”, of “screaming and ranting for long periods”, of exhibiting “poor insight and judgment”, and believing that various people were trying to kill him (including the Russians), and that on one occasion he was “crying and kissing the feet of the Police.” The history also recorded that the Father was “non-compliant” with medication.[35]
[35] See pp.6-7 of the Report.
In relation to the children, Dr R noted the following:
(a)The eldest child, X, reported that she had seen the Father hit the Mother, that she had seen him put a knife to the Mother’s throat and on another occasion attempt to choke her Mother, and that he had hit the youngest child, Z. X appeared hesitant to see her Father; she was a “steadying” influence for her younger sister, Z.[36]
(b)Y’s recollection of her father was not clear, but did refer to her Father as being a “little bit good” but then noted that her parents fought, that her Father hurt her Mother and she had heard the fighting between them. She said that she was “nervous about what might happen to Mum.” She wished to stay/remain with her Mother.[37]
(c)In relation to Z (aged 8½) given her age, in my view, as noted by Dr R, there was little that the Court could rely upon from her comments, although it was observed that she did not appear to know who the Father was.
[36] Report of Dr R, p.12. (Hereafter “Report” or “ibid” followed by the page number.)
[37] Report, p.13.
In relation to the Father, the Report recorded, among other things that the Father reported that he “never had any problems with the law or the Police.” Dr R also observed, among other things, that the Father was confused about his age.[38]
[38] Report, p.15.
The Father confirmed that he had no contact now with any of his five (5) children from his first marriage. He could provide no information about them or their Mother.[39] The Father’s interactions with the children in this matter were noted as essentially with the Father not knowing what to say or do and his interaction was “a little odd;” and Z seemed not to recognise him. There was the comment that the children seemed to enjoy the interaction with their Father.[40]
[39] Report p.16.
[40] Ibid pp.17-18.
When interviewing the Mother and Father together, Dr R said that the Father seemed “childlike in his manner.” But otherwise he said that, following some brief comments between the parents it “was a very sad spectacle to see” and a little later (with both parents crying) it “was a distressing time.”
The Mother confirmed that hers was an arranged marriage with the Father. She was 19 at the time. Dr R said that the Mother appeared to be able to care and provide for the children who were doing well at school. He said that the Mother seemed not to understand that the Father had/has a psychotic illness and that his behaviour was irrational. These matters generally seemed to lead to the Mother not knowing “how to estimate whether [the Father] is a danger or not.”[41]
[41] Ibid. p.20.
Dr R confirmed that the Mother was “still emotionally fragile having had to cope with enormous adversity and having enormous change in her life.”[42]
[42] Ibid. p.21.
In relation to the Father, Dr R said that he does not have insight into his mental illness but he does care about his children. He said the Father still seems to want the Mother to care for him as he seems to be reliant upon her.[43]
[43] Ibid p.22.
Still in relation to the Father, Dr R said that he considered the Father to be delusional or to have “paranoid psychosis.” There was some brief discussion also about the symptoms of schizophrenia.
All of these matters led Dr R to recommend some “restricted perhaps recognition contact” and that he did not believe that “unsupervised substantial contact at this stage [is] a realistic option.” He also said that the major concern about the Father’s violence was if the Father was psychotic.[44]
[44] Ibid p.25.
Turning then to Dr R’s oral evidence, it was as follows.
There was brief cross examination by Counsel for the Father, which focussed on what might reasonably be considered an “optimal” outcome for the Father, such as eventually some regular face to face time with the children. I need not detail that here.[45] In the light of the significant body of evidence before the Court regarding the Father’s criminal and psychiatric history, and noting also that Counsel for the Mother traversed much of that with the expert, in my view it is sufficient to note the following which is taken from questions put to Dr R on behalf of both the Mother and the ICL.
[45] See T 16 – 17.
First, he confirmed that in the light of the history of convictions for assault that was recounted to him, and if accepted by the Court, he would regard the Father’s conduct as “violent and dangerous” which would necessarily change his opinion.[46]
[46] T 18.
Secondly he confirmed that it was difficult to extract a detailed history of the Father’s mental health, but if it was the case that the mental health of the Father coincided with the occasions when there were the assaults outlined to him then the Father would present “an unacceptable risk.”[47]
[47] T 19.
Thirdly, upon being advised of some detail in relation to the domestic violence perpetrated by the Father on the Mother, then again, this information would alter his earlier assessment and recommendations.
Fourthly, Dr R said that, in the light of information that was now being provided to him, he may have under-estimated “the degree of conflict and violence” that was involved and which the children had witnessed.[48]
[48] T 26.
There were the following crucial issues, in the eyes of Dr R, namely (emphasis added):[49]
I guess the question is that his Honour is probably going to try to struggle with is if the children have any contact with the father at all, even in a supervised – is this likely to destabilise them and is it better for there to be no contact at all. So I guess that sounds like the major critical question here. But it was quite clear to me in the joint interview with the children and the father that they did show some interest in the father and that if they felt if they were in a safe situation, that the contact with the father seemed to have some positive aspect to it. But, obviously, this needs to be weighed up with other aspects of the children’s lives.
[49] T 30.
And in the same place, he commented, in response to a question from Counsel for the Mother (emphasis added):
In evidence yesterday when she was in the witness box, when asked about the meeting at your office between Mr Asquith and the effect on the girls, Ms Asquith became quite distressed and she started crying. She broke down and cried and she said that it was very bad and that for six months after the meeting, Y’s eating decreased for about six months. And she also – I note that you’ve also – well, first of all, can I ask for your reflection on that? Does that demonstrate to you that, to some extent at least, the mother is emotionally fragile and that interview has had a negative effect on her?‑‑‑I think that certainly is possible considering the – if, as you’ve reported, it is as has been – if his Honour thinks that is substantiated, that the mother, you know, could well have suffered significant anxiety and trauma and that seeing the father again in that – in those circumstances could have been a significant stress for her for an ongoing period of time.
Dr R confirmed that it would be important for the Mother to feel a sense of security in relation to any time the children were to spend with the Father, even at a contact centre.[50] From such a comment the Court may reasonably infer that any relevant instability and or unpredictability that would necessarily be associated with the Father would very likely have an adverse impact on the Mother’s parenting capacity.
[50] T 31.
In relation to the Father’s mental health, there was the following exchange (emphasis added):[51]
… if Mr Asquith has not been open and honest with his treating psychiatrist, would you be concerned that the extent of Mr Asquith’s mental illness can’t really be determined?‑‑‑Yes, I would be concerned. Yes.
… if the treating psychiatrist is not convinced that the mental illness has been openly and clearly assessed and treated, then it does leave an area of doubt. And the fact that, you know, there is substantial evidence of – and significant violent outbursts that perhaps I didn’t recognise or have minimised myself, it does raise serious concerns about whether there should be any physical contact at all.
[51] T 32.
A number of questions were put to the expert by Counsel for the ICL. Regularly they were predicated on information that was put to Dr R that was previously either unknown or not otherwise available to him. For example, some comments from the Father’s treating psychiatrist (Dr G) were put to the expert. One of them, which contained various parts and significant amounts of information, was as follows (emphasis added):[52]
[52] T 33 – 34.
I just have only a few questions. Most things have been largely covered. You were asked some questions about a report from the father’s treating psychiatrist which is a Dr G?‑‑‑Yes.
He provided a letter which is dated 9 November 2015. Your Honour, this is annexure A4 to the father’s most recent affidavit. You have been taken to some parts of that where Dr G states – and I will just read some elements to it:
Mr Asquith showed no insight into the psychotic elements of his illness; rather believing he was suffering anxiety and post-traumatic stress disorder due to various stresses, including trauma as a (occupation omitted) and citizen in (country omitted).
He also – I want you to take it that his evidence in court was also that he suffers from post‑traumatic stress disorder and does not suffer from schizophrenia. Is that significant in your view?‑‑‑Well, it is because it makes it difficult for him to be able to fully engage in proper treatment and rehabilitation of his psychotic illness.
Yes. You have already been taken to a passage where he says that he has been guarded and it is possible that he continued to be mentally ill. I would like to read the rest of that paragraph to you. Dr G says:
I was circumspect about his recent apparent insight where he rationalised he had misinterpreted the fear of a bomb at his door or reported that past chronic passivity and ideas of reference experiences were actually part of a mental illness. His reporting of his beliefs remains inconsistent. On 10 August 2015, he stated that he had been delusional about believing he had murdered three Al-Qaeda operatives; though on 9 November 2015, he denied ever believing that he had concerns about Al-Qaeda or killing any of its members. I had the sense that Mr Asquith has been keen to impress upon me that he is well so that I may facilitate the process whereby he is permitted visitation with his children. Despite being divorced and having no contact with his ex-wife, he believes that they could still reconcile due to having a history and three children together.
And, finally, he concludes:
Mr Asquith has uniformly denied to me thoughts of harm to himself, his ex-wife or his children. However, given his guarded nature, inconsistent self-report regarding symptoms and allegations of past domestic violence, it is impossible for me to know that he does not present a risk if he were to spend unsupervised time with his children.
Does that cause you any concern?‑‑‑Yes. It, obviously, does cause me great concern. It would suggest to me that the – his treating psychiatrist is much more worried about him than what I had read in my – in previous material and so it does raise serious questions in my mind about, really, the usefulness of any face-to-face contact at all. Even recognition contact, it would seem to me, may present a degree of some, as I mentioned before - although it would be supervised, the value of having – of even recognition contact in these circumstances where there is a history of violence, he has a mental illness, he doesn’t have insight into his mental illness; it does suggest that there is probably little to be gained even from recognition contact. And that, in fact, probably no contact with only, as I have mentioned, card or non- face-to-face interaction which could be filtered and looked at in a positive way may be more appropriate in this – under these circumstances.
Shortly after this, Dr R said (emphasis added):[53]
… in patients who do have a mental illness where there has been violence and where there is untreated psychosis, then this needs to be looked at on an individual basis. And it would seem to me that, in this case, Mr Asquith probably presents a much greater risk than I had assessed from – at the time and that I would probably revise my degree of risk to that there is much more significant risk than I had been able to ascertain at the time of my report. So my level of concern about him is significantly greater now than it was when I completed my report.
[53] T 34.
In relation to the Father’s mental health record, the following history was put to Dr R with comments by him at the conclusion of the history (emphasis added):[54]
MR STAGG: Dr R, on the point of Mr Asquith’s mental health history, I would like to take you through a chronology that I prepared of significant mental health events that I identified through the subpoenaed material?‑‑‑Thank you.
And I would add to that the evidence that was provided today from Mr Asquith’s son that, albeit from the eyes of a 10-year old child, he was of the view that the father had significant mental health issues leading up to when he separated from his first wife in 1998. The subpoena material shows the following: that in July 1994 Mr Asquith was admitted to (omitted) and with a diagnosis of adjustment disorder and depressed mood. In July 1995, he was again admitted to (omitted) – (omitted) Hospital on a schedule 2 certificate with a report of acute hysteria and he was recorded as being insightless and immensely agitated. In the latter part of 2002, from August and again in November, there were several police attendances where eventually he was sectioned under the Mental Health Act and that that report it is reported that he had not taken medication for paranoid schizophrenia for a month. In 2008, in October and early November, there was, again, contact with the mental health team in New South Wales with – New South Wales Police with concerns for Mr Asquith’s mental health and, again, it was noted that he had not been taking medication for schizophrenia. The police found medication in his home which he denied was his. In December 2009, he was taken to accident and emergency by police after he was arrested for an assault on his wife with police concerned about his mental health and the father saying if he can’t have a family, he does not want to live. In May 2012, there was contact, again, with the police and with (omitted) Community Health Centre with concerns about his mental health and I’m going to come back to that point in a moment. And in October, November, December 2012, going through to January 2013, there was the psychotic episode that you note in your report which, as a result, he was in an involuntary admission to (omitted) where he remained until 10 January 2013. He was then under a series of mental health community treatment orders up until at least July 2014 which is where the records stop, but I understand that those orders continued at least for a period of time after July 2014. Is that more significant than you understood his mental health history to be?‑‑‑Yes, it is more significant. There was a – in my history there was a gap. I knew that he had had some episodes in 1994 and 1995 and then this – I wasn’t aware of the 2002 issue and I was aware that there was some possible psychosis in 2008 but then nothing more until then 2012. So it does suggest that there has been much more substantial mental health problems and mental health difficulties, really, ongoing throughout the whole of this, you know, past 20-odd years. So it suggests that the mental health problems have been significantly under-reported or underplayed by the father when I was trying to illicit [sic: “elicit”] the history.
[54] T 35 – 36.
Similar questions led Dr R to comment that the Father seemed to be able to mask his symptoms and present quite well, which only added to issues of concern, among other things because it meant that diagnosing any “triggers” for any psychotic episode or other mental health issue became more problematic. Therefore, it would be possible for his mental health to express itself in conflict and violence, seemingly without warning. This would only make it more unsafe for the children to spend time with their Father until [at least] they were old enough to self-protect and make their own decisions.[55]
[55] T 36 – 37.
A little later in his cross examination, Dr R said (emphasis added):[56]
Is the level of counselling that she [the Mother] appears to have had and the fact that it is ongoing, can you offer any views as to her ability to cope with the children seeing the father?‑‑‑Yes. I’m not able to make a clear view about whether she requires that level of counselling or what the goal specifically is of the counselling at this stage. That is, you know, the traumatic time. You know, she hasn’t had contact with the father now since – for a number of years. But if his Honour does form the view that there has been significant violence and that she has had significant traumatic experience, then reintroducing contact is a potential risk for her and that may also create further problems for the children if the mother feels that she is being compromised in terms of her own trauma experience, even if she is functioning reasonably well at present. So it does all, I think, sort of further move me away from, you know, even the risk of exposing the children and the mother to supervised recognition contact.
[56] T 37.
As a general comment, I accept Dr R’s evidence, both the qualified comments in his earlier Report, and in his more recent oral evidence. Properly, for context and for the most recent clinical assessment, Dr R’s evidence should also be read and comprehended in the light of Dr G’s report, dated 9th November 2015, which is annexure A-4 to the Father’s trial affidavit, filed 24th May 2016. The following comments are taken from that Report.
Dr P's Report
Among a range of matters noted in Dr G’s report: Dr G is a consultant psychiatrist who provides his services to the outpatient mental health team at (omitted) Community Health Centre. It was at this Centre that he saw the Father.
Dr G listed the number of occasions (including dates) when he had seen the Father – nine separate occasions between April 2013 and November 2015. Accordingly, as a “snapshot”, Dr G has the singular benefit of having seen the Father on a quite regular basis for quite some time.
Dr G noted, among other things, that there was an earlier diagnosis in relation to the Father (in perhaps 2012 or 2013) of him having a paranoid delusional disorder. He confirmed (p.2 of his Report) that the Father “showed no insight into the psychotic elements of his illness, rather believing he was suffering from anxiety and PTSD … due to various stressors.”
Dr G said that the Father was “an inconsistent historian” in relation to various events as well as in relation to his medication. In this respect, Dr G said that he recorded in the Father’s clinical file: “I have a strong suspicion that Mr Asquith is minimising / guarded about his true experiences re psychosis.”
Also in his clinical file, Dr G recorded (on 24th June 2013) that “Mr Asquith has poor insight into nature of psychotic experiences leading to hospitalisations.”
Dr G noted again that he considered the Father to be guarded about his psychotic experiences, and that his beliefs “remain inconsistent.” The specialist said further (Report, p.3) that “I have had the sense that Mr Asquith has been keen to impress upon me that he is well so that I may facilitate the process whereby he is permitted visitation with his Wife.”
Dr G concluded his Report in the following terms:
Mr Asquith uniformly denied to me thoughts of harm to himself, his ex-wife or his children. However, given his guarded nature, inconsistent report regarding symptoms and allegations of past domestic violence, it is impossible for me to know that he does not present a risk if he were to spend unsupervised time with his children.
In the light of the assessments and comments by both Dr R and Dr G, in my view the following findings are inevitable and important to make, which I do: namely, that the Father -
(a) under-reports his mental health condition(s) and has done so for some time;
(b) in turn either does not report or recognise the symptoms that are likely to indicate that he is having or is otherwise susceptible to a psychotic episode (or other possible mental health event related to, for example, schizophrenia);
(c) continues not to accept (and or to under-estimate) his criminal history and the detrimental impact his assaults on the Mother have had on her and equally so on the children. This is in circumstances where, in my view, the Father’s criminal history indicates that his violent acts committed against the Mother and in the family environment, over a period of time, are very serious and warrant that his children are protected and secure against his potential for violence and his unpredictability (due to his mental health issues); and
(d) does not appreciate, and shows no insight in relation to, what is in the best interests of the children. Rather, his own evidence and the evidence of the psychiatrists indicate that his focus is essentially in relation to his own best interests rather than those of the children.
Father’s Submissions
The Father’s submissions were filed on 4th July 2016. They were as follows:
1. The Applicant Father seeks to spend supervised time with the Children on a fortnightly basis for two hours each time.
2. The Respondent/Mother seeks that the Children spend no time with the Father.
3. Dr R in his 22 June 2015 report opined that the Children should spend time with the Father for ‘identification purposes’.
4. In cross examination Dr R opined that in order for the Children to have an opportunity to develop a meaningful relationship with the Father they should spend time with him for 1 to 2 hours once per fortnight as a minimum.
5. The Mother’s evidence was that during the relationship the Father was often angry and completely unpredictable in his mood swings. Most significantly the Mother asserted that the Father was violent to her throughout the relationship, at times in the presence of the children, and on occasion to the children. The Mother’s evidence is that the violence comprised of the Father:
a. spitting at the Mother;
b. calling the Mother names;
c. pulling the Mother’s hair;
d. putting a knife to the Mother’s head;
e. smacking the children;
f. ‘dragging’ X on the carpet.
6. The father has been convicted of common assault on six occasions [Exhibit A]. Three of those occasions were against the Mother relating to incidents in 2010 and 2012. Of the three convictions not concerning the Mother the Father accepts that he pleaded guilty to a charge in 1997 against his then wife but says he pleaded guilty so as to minimise problems with his then wife. The father does not recall one occasion in 2001 and concedes one other occasion in 1998 concerning an incident in the work place where he says he was harassed and then pushed the harasser. All convictions resulted in good behaviour bonds (Section 9 bonds).
7. The Father denies he was violent to the Mother or the Children.
8. Significantly there is no indication that the Father has been violent to anyone since final separation in early 2012.
9. The Father sufferers from psychosis, most probably from late onset schizophrenia (per Dr R's Report page 20, 23). He has limited insight into his mental health condition and has at times been in poor compliance with his medication. The Father’s most recent admission to hospital was in early 2013 and it appears that this admission may have been associated with poor compliance with medication.
10. However it appears the Father he [sic] has been compliant with medication for the past several years, has not required hospitalisation for his psychiatric condition since early 2013, and his psychiatric condition has stabilised (Dr R page 23, Dr P letter 28/4/16).
11. The evidence of the Father’s eldest son, Mr R, and the Father’s history of admissions to psychiatric institutions going as far back as July 1994 support the proposition that the Father suffered from significant mental health issues for more than 20 years or so (See ICL’s Chronology of the Father’s Mental Health).
12. The evidence about the Father’s psychosis is not challenged by the Mother and her lay evidence, particularly as adduced in cross examination, would appear to support the proposition that the Father suffered from a significant psychiatric illness during the relationship and that his poor mental health adversely impacted on the family relationships.
13. Dr R opines that the Father’s violence was influenced by his psychosis and delusional ideas (Dr R page 23).
14. The Children’s best interests are paramount when deciding whether to make a particular parenting order: s 60CA FLA.
15. In determining the best interests of the Children the primary considerations are:
a. the benefit to the child of having a meaningful relationship with both of the child's parents; and
b. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC (2) FLA.
16. If the Court accepts the Mother’s evidence that the Father perpetrated family violence then, based on the Mother’s evidence, the Court would find that:
a. the family violence was at the lower end of the scale;
b. the violence occurred in circumstances where the Father was very ill, misdiagnosed and poorly treated for his psychosis.
17. Further the Court would find that there was some bond between the Father and at least the two older children (Dr R page 24) and that provided safety issues were adequately and appropriately addressed then it would be in the best interests of the Children to spend time with the Father so that they may develop a meaningful relationship with him.
18. It is submitted that in light of the Father’s psychiatric history, the absence of any violence since early 2012 and the Father’s compliance with his medication regime a supervised contact centre would provide be an appropriate venue to assuage any concerns the Court may have for the safety of the Children.
Submissions on behalf of Respondent Mother
The Respondent Mother’s submissions, filed 19th July 2016, were as follows:
1. The applicant father commenced parenting proceedings in 2012 with respect to his three daughters X, born (omitted) 2004 (12), Y, born (omitted) 2007 (9), and Z, born (omitted) 2008 (7). The respondent is the children's mother, Ms Asquith.
Orders sought
2. According to the father's Case Outline, the father wishes to spend time with the children “initially supervised at (omitted) Contact Centre two hours per fortnight.” The mother seeks orders that she have sole parental responsibility for the children, that the children live with her and that they spend no time with the father. The mother seeks an additional order pursuant to section 68B of the Family Law Act (FLA) restraining the father from coming within 100 metres of the mother and children.
Parental Responsibility
3. The father seeks an order that the parents have equal shared parental responsibility in his Further Amended Initiating Application. The mother submits that the presumption of equal shared parental responsibility does not apply because of the family violence perpetrated by the father. The mother is fearful of the father and the father does not know where she and the children reside. It is submitted that any interaction between the mother and father for the purposes of joint decision making is not in the children's best interests.
4. As the mother is the children's primary care-giver it is submitted she should exercise sole parental responsibility.
Live With and Spend Time With Orders
Primary Considerations
5. The mother submits that there is an unacceptable risk of harm to the children's psychological wellbeing if they were to have time with or communicate with the father. The primary considerations of s60CC of the FLA require consideration of the benefit of the children of having a meaningful relationship with both of their parents. “Meaningful relationship” is one which is important, significant and valuable to the child: Mazorski v Albright, and McCall v Clark. The Court is to consider and weigh the evidence at the date of the hearing and determine how, if it is in the child's best interests, orders can be framed to ensure the child has a meaningful relationship with both parents.
6. It is submitted that the relationship between the father and children has been compromised by the impact of family violence perpetrated by him. The benefit of a meaningful relationship is outweighed by the need to protect the children from harm.
7. Mr Asquith remains a somewhat shadowy figure. He has provided the bare minimum of information about his past and the causal nexus between Mr Asquith's psychiatric illness and his propensity to violence is by no means clear.
8. Mr Asquith has been convicted of common assault at least six times (exhibit A). In 2010 and 2012 he was convicted of common assault after assaulting the mother. Despite these convictions, Mr Asquith continues to deny he assaulted the mother and admitted in evidence only to raising his voice to her. The convictions speak for themselves. When cross-examined, Mr Asquith admitted one of his convictions related to an assault on his first wife and another to a dispute with a neighbour.
9. The children saw the father's violent behaviour. On 16 February 2012, X told JIRT officers she had seen her father “smack” her mother “Everywhere” and pull her hair (A Annexure E, page 12). X said she did not say anything, because “then he would start smacking me and my two little sisters” (A Annexure E, page 12). X heard the father call the mother, “evil dog woman” and stated she had seen the father pull the mother's hair, “lots of times” (A Annexure E, page 18). The JIRT officer asked X how she felt when her father said “mean words” to her mother. X responded:
A A bit sad I think that something is going to happen now.
Q225 Yeah, like what?
A Like she's going to get very badly hurt and get a bruise sometimes, get a bruise and l think that she's going to get very, very sick” (A Annexure E, page 20).
10. X and Y told JIRT they saw their father repeatedly spit on their mother (A Annexure D, page 13, A Annexure E, page 21). X said of her father, “he hurted me and smacked me and Y and Z very badly. We didn't cry, because if we, if he tells us that if we cry, we'll get badly hurted and we did cry but then he hurt us badly” (A Annexure E, page 24 ).
11. X told Dr R the father had “dragged me on the carpet” and recounted other instances of violence (RB 12.424). She said she was “scared” to see the father. Y told Dr R her father was “a little bit good”, but also recounted a memory of her parents fighting (RB 13.458, 461). Z was very small when the parents separated, she told Dr R she worried that her father could hurt her mother (RB 13.479).
12. Dr R concluded that Y and X “both appeared to have a memory and link with their father. There was clearly some bond there still.” He also stated that the “older two children do have an interest and would like to have some exposure to their father and some relationship with their father.”
13. During oral evidence, Dr R modified the stance he had taken in his report. When he heard extracts from the JIRT interviews with X and Y, Dr R pronounced the descriptions given by the girls “very concerning” and later said he would have, “serious concerns” about whether the children should have any contact at all with the father, noting there was “little to be gained” from it. This conclusion was the culmination of Dr R being apprised of the following facts:
· Mr Asquith's multiple convictions for assault;
· X and Y's accounts of witnessing and experiencing violence at the hands of Mr Asquith;
· The negative effect of the meeting between the father and the children at Dr R's office-Y “did not eat” for six months and Ms Asquith broke down when giving evidence about the experience and its aftermath;
· Dr G, Mr Asquith's treating psychiatrist, had “strong suspicions that Mr Asquith is minimising/guarded about his true experiences about psychosis”, felt that it was possible that “Mr Asquith continued to be mentally ill and had been “unclear and evasive about the dose of medication he has taken”.
14. Dr R also noted that supervised contact may well not work in circumstances where the mother did not have a sense of security about the safety of the children, even in supervised conditions. During her interview with Dr R, she said that she “has had nightmares about Mr Asquith and fears for the children. She was frightened when Mr Asquith told her that he would find and hurt her and the children. “He said he would kill the kids” (RB 9.310). After the joint session with Dr R, the mother was “crying and upset ... she said it had been extremely tough for her and the children” (RB 19.705). Dr R noted the mother had suffered significant trauma in her early life (RB 20.720) and she is “quite fearful and confused about Mr Asquith and doesn't understand what his problems are” (RB 21.754). Whilst finding the mother to be a capable and caring parent, Dr R found she was “still emotionally fragile having had to cope with enormous adversity and having an enormous change in her life.”
15. Finally, in oral evidence, Dr R was concerned that the extent of Mr Asquith's mental illness was unclear, that he may well have underplayed his mental illness over the years and was “possibly able to mask his symptoms and present reasonably well to me.”
16. It is submitted that Dr R's evidence should be given considerable weight and it is submitted any contact at all between the father and the children is fraught with difficulty and not in the children's best interests.
17. In his report, Dr R noted the father's violence “may” have been influenced by psychosis (page 23, line 876). There appears to be little doubt Mr Asquith suffers from schizophrenia, however the causal nexus between psychosis is by no means clear. Mr Asquith was not scheduled under the Mental Health Act at the time of his separation from Ms Asquith, although he was later scheduled and had been scheduled previously because of paranoid ideation. Mr Asquith has never been sentenced under s32 of the Mental Health Act. This may be because Mr Asquith has little insight into his condition and refuses to avail himself of the Act or it may be because his mental illness was unconnected to his violent behaviour. The answer is not known because Mr Asquith has chosen not to disclose details about his convictions. The issue is relevant, however as Mr Asquith's case is that his past violence was influenced by his poorly controlled mental illness and that his stability now presumably equates to cessation of risk. On the evidence, it is not possible to reach that conclusion.
18. When Dr R interviewed the mother and father together, the father, inexplicably, sought reconciliation. He did not apologise for or acknowledge his past acts of violence. He did not seek to explain that past acts of violence were triggered by untreated mental illness (RB 18.668-709).
19. In the absence of any evidence that Mr Asquith has engaged in any counselling or therapy with the goal of changing his angry behaviour, it is submitted he should not spend any time with the children and he should not be permitted to communicate with them.
Additional Considerations
Children's Views
20. Dr R formed an opinion there was some connection between the father and the children. X, in particular, “looked pleased” when Mr Asquith recognised her after appearing not to see her at first (page 17, line 62). In his report, Dr R made various references to each of the children being “tearful”, “a little tearful” and “quite anxious”. During cross examination it became evident that the children's distress related to the prospect of spending time with the father. The mother gave evidence that the effect on the children of the meeting was negative, for example Y stopped eating for six months. Whilst that statement is obviously somewhat hyperbolic, it is submitted the children's mental wellbeing was adversely affected by contact with the father and any positive comments made by them about him must be treated with caution.
Nature of relationship
21. The evidence supports a conclusion that the children have a good relationship with the mother. Whilst Dr R notes there is a bond between the children and the father, the evidence supports a view that the children have ambivalent feelings about their father and are fearful of him.
Extent to which each parent has taken opportunity to participate in making decisions, maintained children
22. This is not an issue except to the extent that the mother states she was not allowed, whilst living with the father, to participate in the children's school activities (FAA paragraph 45). The father is on a pension and has not offered to provide any financial support to the children.
Likely effect of change
23. It is submitted that the children's psychological well-being would be negatively affected if they were to spend time with or communicate with the father.
Practical Difficulty and expense
24. Not relevant.
Parents' Capacity
25. The father alleges the mother mistreated X and is generally incapable but the balance of the evidence does not support that assertion. The father’s capacity is compromised by his propensity for violence and lack of insight. There is no evidence to suggest the father could provide for the children’s emotional wellbeing if they were to spend time with him or communicate with him.
Maturity, sex and lifestyle
26. Not relevant.
Attitude to the children and the responsibilities of parenthood.
27. This is not an issue.
Any Family Violence
28. This has been dealt with.
Family Violence Order
29. The mother seeks an injunction restraining the father from approaching herself or the children. There are a number of bases for this order. Mr Asquith has twice been convicted of assaulting Ms Asquith as well as his first wife. X and Y recall being hit and X recalls being dragged across the carpet. Mr Asquith denies he was violent and has not embarked on any therapy or counselling with respect to anger issues. Dr R stated that Mr Asquith's mental health could improve once litigation has finished, or it could deteriorate. Until the final hearing, Mr Asquith maintained he wished to reconcile with Ms Asquith.
30. Whilst Mr Asquith does not know the mother and children’s whereabouts, it is submitted that were he to discover where they lived, there is a risk he could attempt to contact them if his mental health deteriorated and he ceased behaving rationally. A s68B restraint would provide protection for the mother and the children.
Conclusion
31. It is submitted that the evidence overwhelmingly supports the mother's position that the children would be at an unacceptable risk of harm if they were to spend time with or communicate with the father.
Submissions on behalf of Independent Children’s Lawyer
The ICL’s submissions, filed 10th August 2016, were as follows:
Orders Sought
1. Minutes of Orders Sought by the Independent Children’s Lawyer, (“ICL”) are attached.
Evidence
2. Both parents filed affidavits in the proceedings and gave oral evidence. Ms Asquith also relied upon affidavit evidence from her partner, Mr M, as well as the son of the Applicant father from an earlier relationship, Mr R.
3. Mr Asquith annexed a report from his treating Psychiatrist, Dr G, dated 9 November 2015, to his affidavit of 18 May 2016. A report from Dr R dated 22 June 2015 was tendered in the proceedings and Dr R also gave oral evidence.
4. The respondent mother asserts that the Applicant father suffered/ers significant mental health difficulties throughout the life of the relationship, as well as him perpetrating family violence upon herself and the children. Evidence produced under subpoena/s 69ZW request from NSW police and records of various NSW Mental Health agencies established that the Applicant father had a long history of mental health issues and related violence, as well as poor compliance with mental health medication. Indeed, this is accepted by Counsel for the father in his submissions (Para 11 and 6).
5. The father denies that he was ever violent to the Respondent mother or the children. It is submitted however that on the evidence presented, the court can be satisfied that the evidence of family violence was overwhelming and that the family violence was extensive and significant.
6. It is not submitted that the Applicant father was deliberately dishonest in his evidence but rather, that his beliefs were contrary to the evidence. His beliefs and opinions often had a sense of divorce from reality. This was most graphically illustrated in giving evidence where he agreed he could not say anything positive about Ms Asquith (“No, I can’t”) but during the interviews with Dr R professing his love for Ms Asquith and pleading with her to reconcile (Report page 18, line 676 and following to line 703).
The Legislative Pathway
Parental Responsibility
7. It is submitted that the court would be satisfied that the presumption of Equal Shared Parental Responsibility (“ESPR”) under s 61DA of the Family Law Act 1975, (“the Act”) does not apply by reason of the significant history of family violence. Indeed, notwithstanding order 1 of his Further Amended Initiating Application, the ICL understands that the Applicant father accepts that there should not be an order for ESPR. The ICL submits that an order for sole parental responsibility in favour of the Respondent mother is appropriate.
8. Consequently, when an order for sole parental responsibility is made in favour of the Respondent mother, the section 65 DAA requirements for the court to consider equal time does not apply. Again, to his credit, the Applicant father accepts that neither equal time, nor “significant and substantial time” is appropriate and he seeks only supervised time of 2 hours per fortnight, (submissions paragraph 1).
9. Accordingly, the only issue for the court to consider is whether it is in the best interest of the children to spend time with their father for 2 hours per fortnight supervised by a professional supervisor.
Best Interest
10. The test for any parenting order is that the order be in the best interest of the children, but in deciding what is in the best interest of the children the court must apply the primary considerations required under section 60CC(2) of the Act, noting that greater weight must be given to the need to protect the child.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
11. The history of family violence is outlined in the submissions on behalf of the Respondent mother at paragraphs 8 to 11. The ICL repeats and adopts those submissions.
12. In his report of 22 June 2015 Dr R initially recommended that “some recognition contact would be appropriate” (emphasis in original) of 2 hours between 2-4 times per year, (report p 26, l 962-965). However, that recommendation was based on two premises.
a. That he did not regard the Applicant father to be an inherently violent person, (report p 25, l 939); and
b. A belief that the father’s schizophrenia was well controlled and would not present as an “unacceptable risk of violence”, (report p25, l 950).
13. Under cross-examination a number matters arising from the evidence presented in court were put to Dr R to suggest the premises he assumed were not actually correct. These matters included:
a. Concerns by the Applicant father’s treating psychiatrist that:
i. he had “a strong suspicion that Mr Asquith is minimising/guarded about his true experiences re psychosis”,
ii. he felt “it was possible that he [Mr Asquith] has continued to be mentally ill”;
iii. Mr Asquith had no/poor insight into the psychotic elements of his illness and the nature of psychotic experiences leading to hospitalisations”. (Annex A-4 Affidavit of Mr Asquith dated 18 May 16);
b. History of offences of violence since at least 2002;
c. Report in mental health records of an unprovoked attack on a priest;
d. History of concern of non-compliance with mental health medication;
e. Statements of the children about witnessing and experiencing violence;
f. The evidence of Mr A of mental health difficulties and family violence since prior to 1998 where Mr Asquith could “turn quickly” with no trigger to his violent acts;
g. Mr Asquith’s claim that he has no memory of events on occasions when he is psychotic.
14. After having these matters put to him, Dr R gave evidence that he would now have “serious concerns” about the children having any contact with their father, supervised or otherwise.
15. It is of concern to the ICL that the Applicant father has little to no insight into his mental health, and clearly does not recognise if and when he is having mental health difficulties. He does not accept that he has schizophrenia, despite a diagnosis by his treating psychiatrist. More significantly, his own treating psychiatrist has concerns that he may be “minimising his report of symptoms to facilitate the process whereby he is permitted visitation with his children”.
16. The ICL submits that given the above and the Applicant father’s long history of violence, (including a reported attack upon a priest), it is open to the court to find he would be an unacceptable risk of physical and/or psychological harm to the children, even in a professionally supervised environment.
The benefit to the child of having a meaningful relationship with both of the child's parents
17. It is submitted that the critical element of section 60CC(2)(a) is not the need to try and provide for a “meaningful relationship” between the children and their father, but rather, what is the benefit of the children having a meaningful relationship with their father?, (see Mulvaney v Lane , [2009] FamCAFC 76; (2009) 41 Fam LR 418. per May and Thackray JJ, at [89].)
18. Given the safety issues outlined above, there is no question of the father having any time other than limited professionally supervised time, between the himself and the children. Dr R initially suggested some benefit to the children of having “recognition contact” 2-4 times per year, (report p 26, l 962). The ICL submits that such time however can hardly be considered sufficient for a meaningful relationship.
19. The Applicant father seeks a more extensive regime of supervised time on a fortnightly basis to allow for a more meaningful relationship with the children. However, the Applicant father’s ongoing mental health is at best questionable, notwithstanding his current medication. He also has a history of non-compliance with medication. It is significant that notwithstanding the supervised environment of the report interviews, Dr R records that a conversation between the Applicant father and Respondent mother in the interview process was a “distressing spectacle”, largely because of Mr Asquith’s unrealistic and inappropriate engagement and conversation.
20. Given the potential risk of inappropriate engagement with the children, even if the time is supervised, it is difficult to see what benefit there would be to the children having even this limited time with the father.
Conclusion
21. The ICL submits that the primary considerations of best interest to the children pursuant to section 60CC(2) of the Act are such that any benefit to the children having a meaningful relationship with the father under the orders for time sought by the Applicant father or, indeed, any orders for time, is limited at best, and outweighed by the potential risk of psychological or physical harm from time with the Applicant father, even in a professionally supervised environment.
22. Accordingly, the ICL submits that the most appropriate orders that the Respondent mother have sole parental responsibility for the children and that the Applicant father have no time with the children.
Consideration & Disposition
As a first comment, I simply note that to the degree that it is necessary to state the obvious, the presumption in s.61DA is clearly rebutted on the evidence before the Court.
The matter could be determined immediately by me accepting – which I do – the submissions of the Mother and those of the ICL. Those submissions, in the light of the evidence, make plain that there would be, in my view, an unacceptable risk, notably of psychological and emotional harm, to the children in spending any time with the Father. In my view, even though there is a passing reference in Dr R’s report that at least one of the children seemed pleased to see their Father in the course of the interviews, the overwhelming, later evidence of the same specialist, together with the evidence of Dr G, in my view, all too clearly militates against the children spending any time with their Father. The longer-term risk posed by the Father’s unpredictability, due to his mental health, is too great a risk for the children.
Indeed, the Father’s (a) significant mental health issues, (b) under-reporting and inability to comprehend indicators in relation to them, and (c) significant criminal history, including assaults on the Mother, lead inexorably to the Orders being made as sought by the Mother. In my view, they are plainly in the children’s best interests.
As well, in the light of the evidence, the Court’s protective responsibilities towards the children as set out in Part VII of the Act must properly take precedence over all else.
Having accepted the submissions of the Mother and the ICL, I need only note the following.
In Slater v Light the Full Court outlined the jurisprudence and basal principles in relation to “unacceptable risk.”[57]
[57] Slater v Light (2013) 48 Fam LR 573.
Beginning at [33] the Full Court dealt firstly with the High Court’s comments in relation to “unacceptable risk” (noting that the “risk” spoken about their related to risk of sexual abuse). Their Honour’s said (May, Strickland and Forrest JJ) (emphasis added):
[33] Consideration of risk of emotional abuse stems from the mandatory considerations under the legislation. Section 60CC(2)(b) requires the Court, in determining the best interests of the child, to consider as a primary consideration, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
[34] The assessment of risk is guided by statements of the High Court and of this Court, albeit primarily in the assessment of risk of sexual abuse. In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the Court’s broader and ultimate determination, that is, what arrangements are in the best interests of the child. In joint reasons for judgment, their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ) said (at p76-77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. ...
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[35] Their Honours noted cases addressing magnitude of risk and appeared to prefer a standard of “unacceptable risk” in relation to parental access (at p78):
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (17)), “an element of risk” or “an appreciable risk” (Marriage of M. (18)), “a real possibility” (B. v. B. (Access) (19)), a “real risk” (Leveque v. Leveque (20)), and an “unacceptable risk”: In re G. (A minor) (21). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Their Honours continued, at [37] and [38], and said:
[37] In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M v M, and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:
[68] In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
...
[71] We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof …
[38] While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
The importance of the comments of the Full Court here is not only in relation to the summary of relevant principle in relation to “risk” but also in relation to the Court’s consideration of the appropriateness (or not) of an indefinite Order for unsupervised time. This is particularly relevant here where the Father only seeks Orders that he have time with the children supervised at a contact centre.[58]
[58] Among other places, see the Father’s “Closing Submissions” (filed 4th July 2016) par.18.
Further, the submissions that some credit should be given to the Father for not having had any relevant “incident” since 2012 unfortunately does not hold much weight. This is so because of the Father’s propensity and capacity, as recorded by his treating psychiatrist (Dr G), to under-report his symptoms and or not to recognise them. These are significant dangers, in my view, to the children as well as to the Father himself. And further, the Father’s lack of insight is patent: for example, Dr R reported that the Father sought to reconcile with the Mother in the course of the interviews with him notwithstanding his history of violence towards her and where the parties had not seen each other for a very long time.
In my view, (with apologies for the repetition of comments made earlier in these reasons) the Father’s significant criminal history that includes assaults on the Mother, and the general timidity (among other things) of the children in relation to the Father require the Court to find that the Father’s terrible conduct in the past (especially towards the Mother) has had and is likely to continue to have a deleterious impact on the Mother’s capacity to parent the children properly. The Court must protect the children from such a risk. Indeed, given that the children’s relationship with the Father ranges from, at its highest, timidity and caution at one end, to vacant and non-existent at the other end, such assessment from the evidence (notably from Dr R’s observations of the children) further strengthens the importance of the Court’s need to protect the children from a relationship that, most unfortunately, is not and cannot be meaningful to them. Indeed, the evidence leads me to conclude further that were the children permitted to spend time with the Father, there would be an unacceptably high risk not only to the children arising out of the Father’s unpredictability but it would also constitute a source of potential and unacceptable discord for them as well as for their Mother.
As well, (as just noted again) the Father’s significant history of mental health, together with his inability and or his conscious refusal to acknowledge (and or to minimise) symptoms and triggers and the consequences (especially for the children) of his psychotic/schizophrenic episodes, make such unpredictability a further unacceptable and significant risk should the Father be permitted to spend even supervised time with the children.
I acknowledge that the focus also must be on the benefit for/to the children (the words of the Act speak about a child having a “meaningful relationship”) spending time with the Father, as opposed to the benefit to the Father (which seemed more often than not to be the Father’s focus in the course of his evidence).[59]
[59] See the comments of May and Thackray JJ in Mulvaney v Lane (2009) 41 Fam LR 418 at [88] in this regard.
On the evidence of the parties and from the psychiatrists (Dr R and Dr G), in the light of the mental health and criminal histories of the Father, I could not be, and I am not, relevantly satisfied that it is in the children’s best interests to spend any time with their Father. In my view, his unpredictability (particularly regarding his mental health) is too great a risk for the children, even in a supervised setting.
It should also be recalled that the Father holds a decidedly negative view of the Mother and her parenting capacity, which does not give the Court any [additional] confidence that the children’s time with the Father would be beneficial.
To the degree that it is relevant or necessary to do so, the additional considerations in s.60CC of the Act, in my view, are overwhelmed by the Court’s protective responsibilities towards the children having regard to matters of significant family violence (ss.60CC(2)(b) and (3)(j)). The Court is also mindful of the Mother’s parenting capacity being adversely affected by the Father’s past violent behaviour towards her. Otherwise, there was no relevant challenge to the children doing well at school, being well looked after by the Mother, and generally any question about the Mother’s parenting.
The Father’s parenting capacity is necessarily and significantly compromised by his historical and ongoing but selectively addressed mental health issues.[60]
[60] See s.60CC(3)(f).
For the reasons outlined, the Orders sought by the Mother (supported by the ICL) are, in my view, in the best interests of the children.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 28th March 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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