Bakula & Maciel
[2021] FedCFamC2F 629
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bakula & Maciel [2021] FedCFamC2F 629
File number(s): PAC 237 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – Parenting – young children – no relationship with father since separation – serious family violence perpetrated by the father – lack of capacity and insight – unacceptable risk of harm – mother to have sole parental responsibility for the children – children to live with mother – children spend no time with the father. Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA 68B Cases cited: Banks & Banks [2015] FamCAFC 36
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Starr & Duggan [2009] FamCAFC 115Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 13, 14 and 15 October 2021 Place: Parramatta Counsel for the Applicant: Mr Greenaway Solicitors for the Applicant: The Parks Legal Counsel for the Respondent: Mr Fermanis Solicitors for the Respondent: Phillip A Wilkins & Associates Counsel for the Independent Children’s Lawyer Mr Hill Solicitors for the Independent Children’s Lawyer Kathryn Renshall Lawyers ORDERS
PAC 237 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAKULA
Applicant
AND: MR MACIEL
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for X born in 2015 and Y born in 2016 (“the children”).
3.The children shall live with the mother.
4.The children shall spend no time with the father.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father be and is hereby restrained by injunction from:
a. Approaching or attempting to contact the mother or the children except through a legal practitioner;
b. Coming within 200 metres of the mother and/or the children, including but not limited to the mother’s residence and the children’s school; and
c. Approaching the mother, in the event that both parents are present at the same time.
6.The father is granted leave to publish the Report of Dr B and the Court’s Reasons for Judgment delivered on 22 December 2021 to all of the treating medical and allied health practitioners of the father.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 a pseudonym Bakula & Maciel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are reasons for judgment in respect of parenting proceedings concerning two children, X born in 2015 and Y born in 2016 (“the children”). The parties to the proceedings are the applicant mother Ms Bakula (“the mother”) and the respondent father Mr Maciel (“the father”).
The father has throughout the parties’ relationship and post separation exhibited significant anti-social and violent behaviour. The children currently live with the mother, and have not spent any time with the father since June 2018.
At final hearing, the primary issues for determination were as follows:
a.Parental responsibility; and
b.What time, if any, the children are to spend time with the father and whether any such time ought to be supervised;
Competing Applications
The mother seeks an order for sole parental responsibility for the children and for the children to continue living with her. The mother seeks no orders in relation to time and/or communication between the children and father.
The father, in his proposed minute of order seeks orders inter alia that the mother have sole parental responsibility for the children, that the children live with the mother and spend time with him supervised at a contact centre for the “purposes of identity contact only and being six occasions each year for up to 2 hours on each occasion”, with the father to pay the fees for such supervised identity contact.
In addition, the father seeks an order that will allow him to provide a copy of Dr B’ Report dated 15 June 2020 (“the Expert Report”) and these Reasons for Judgment to all treating medical and allied health practitioners he attends upon. This order is also supported by the Independent Children’s Lawyer (“ICL”).
The ICL’s position is that there be no orders for time with the children and the father, and there be positive orders pursuant to s.68B of the Family Law Act 1975 (Cth) (“the Act”) restraining the father by injunction from approaching or attempting to contact the mother and children and coming within 200 metres of mother and/or children, including mother’s residence or children’s school.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the children who are the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the children’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (Slater & Light [2011] FamCAFC 1 at [45]).
In applying the primary considerations the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the children (McCall at [122]).
Consideration of the s.60CC factors does not take place in a vacuum and the relevant factors will need to be assessed in the context of the competing proposals (Starr & Duggan [2009] FamCAFC 115 at [35]-[36]).
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence (s.60CG (1)(b); See Salah & Salah [2016] FamCAFC 100 at [36]). The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (s.60CG(2).
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [13]).
DETERMINATION
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. In any event, discussion does not mean consideration (Banks & Banks [2015] FamCAFC 36).
Chronology
The mother was born in 1989 and is currently 32 years of age.
The father was born in 1993 and is currently 28 years of age.
In or about 2000, the father emigrated from Country C to Australia as a refugee, and was held in a detention centre for approximately 12 months.
In or about 2007, the father was diagnosed with depression, anxiety, stress disorder, post-traumatic stress disorder (“PTSD”) and insomnia.
In 2010, the father travelled back to Country C for a holiday, and was involved in a motorbike accident. The father says that since the accident he has suffered from chronic pain and requires strong pain medication to manage such condition.
In or about 2013, the parties met and became friends. They commenced living together in 2014 in a rental unit in Suburb D.
The parties’ first child X was born in 2015.
The parties’ second child Y was born in 2016.
In May 2016, the mother and the children moved into the maternal grandparent’s home.
In May 2017, the parties and the children moved into a rental property in Suburb E.
On 18 June 2018, the father moved out of the Suburb E property, and since that time the children have lived with the mother and spent no time with the father.
On 20 June 2018, the parties separated on a final basis.
The father was also charged with a number of criminal offences on this day including use carriage service to menace/offend, stalk or intimidate intending to cause fear of physical/mental harm and fail to appear in accordance with bail acknowledgment. These charges arose as a result of the father making threats against the mother during phone calls which were recorded by a recording application installed on the mother’s phone, and the father’s conduct when he attended at the mother’s home to collect his belongings.
On 3 July 2018, a final apprehended domestic violence order (“ADVO”) was made against the father for the protection of the mother and children.
On 9 July 2018, an order was made by Suburb D Local Court pursuant to s.33(i)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) for a mental health assessment, which was conducted on 20 July 2018.
On 17 July 2018, the father was granted bail at Suburb D Local Court.
On 5 September 2018, the father was served an apprehended violence order (“AVO”) for the protection of the mother and children. The AVO was to expire on around 14 July 2020.
On 28 November 2018, the father was charged with breach of ADVO, and on 10 April 2019 the father was sentenced to a Community Correction Order for 12 months.
On 18 January 2019, the mother commenced these parenting proceeding.
On 23 April 2020, the parties and children were interviewed by Dr B, and the Expert Report was released by the Court on 3 June 2020.
In or around July 2020, the father was charged with breach of ADVO. The charge was later withdrawn as the ADVO had expired.
The Parents and their Relationship
The mother describes the parties’ relationship after they commenced cohabitation as “everything was great”. At the time she was the sole provider and worked full-time. The father was unemployed and “doing his own thing”. After she fell pregnant with X in 2014, the mother says that the parties were happy about starting a family and that the father was supportive. It was at around the 4th month of her pregnancy with X, that the mother says the father started coming home late and “hanging out with the wrong crowd and became addicted to drugs”.
When X was approximately 7 months old, the mother moved out with the child and went to live with her parents. It is the mother’s evidence that the parties separated because of the father’s behaviour and poor treatment of the mother. After about a month, the mother moved back in with the father. She says that the father “promised to change and begged me to come back”.
The father says that the parties were friends, and had a casual sexual relationship. It is the father’s evidence that the parties were not at any point in a committed/long-term relationship. The father’s brother in cross-examination conceded that the parties were in a committed relationship.
The Court accepts the mother’s evidence about the nature of the parties’ relationship.
In or around February 2016, the mother became the father’s full-time carer. The mother asserts that she assisted the father by attending with him to psychologist appointments, Centrelink and doctor appointments, even at times where the father was too “busy” to attend such appointments himself. The mother says that she desperately wanted to help the father get back on track and gain some “sanity in his life” by getting him counselling for his addiction, assisting him to gain employment and to “become stable so he can learn to treat both me and my son with respect”.
The parties’ second child Y was born in 2016, and shortly after, on or about 17 January 2016, the father left the parties home and moved in with his new girlfriend, who the mother asserts was also a drug user.
The mother and the children moved into the maternal grandparent’s home in or about May 2016 because she struggled to afford rent and utility payments, with the full-time care of the children. It is the mother’s evidence that this was the third time in 2 years that she returned to her parent’s home. During this time, the mother would arrange for the children to see the father every Sunday for one hour, and the mother says that most of that time the father would be with his friends and not with the children.
In May 2016, the mother and children moved into a rental property in Suburb E. The father assisted the mother to get approved for the home, using his disability pension as a second income. Notwithstanding this, the mother paid all the rent, utilities and groceries. The father also moved in to the spare room. The mother says she was too scared to say anything for fear of what he might do and because she had sought advice from police who told her that his name was also on the lease, in effect that there was nothing she could do.
Whilst the parties resided at the Suburb E property, the father would wake up at 3pm and return home at around 3am while the children and mother were asleep, often returning home in a rage, screaming and threating the mother because there was no food cooked. The mother says that the father would insult her continuously and that she had felt trapped in fear of setting him off. The mother says that she did not tell her family the full extent of her life with the father, except for three people, two of whom are witnesses in the mother’s case.
Father’s Violent and Anti-Social Behaviour
The mother has detailed a history of abuse by the father towards her and at times the children, and maintains that she is terrified of the father due to his past actions, threats and psychological disturbances. The mother is fearful of what the father may do to her and asserts that the children would be at an unacceptable risk of harm if the children were to spend time, supervised or otherwise, with the father.
In her affidavit filed 8 April 2021, the mother explains a number of instances of abuse, violence and coercive controlling behaviour perpetrated by the father towards her including:
a.After X was born and while the mother was pregnant with Y, the father called the mother “slut, sucking bitch, fat slut”
b.On one occasion whilst the mother was pregnant with Y, the mother locked the father outside the house as she observed him to be in a “drug induced rage” and was afraid for her and her son’s life. The father punched through the glass door to gain entry to the home. The glass shattered over the mother and child, and a piece of glass landed between the mother’s eyes, which she now bears a permanent scar from.
c.In or about November 2015, the father would say to the mother things like “I am going to overdose myself and kill myself” and “I am going to kill myself and leave a letter for the authorities blaming you for my death”.
d.In 2016, the mother gave birth to the youngest child, Y. The father left the hospital after the child’s birth and did not return until the mother was ready for discharge. He subsequently was involved in a “massive fight” with hospital staff because the mother’s discharge papers were not ready upon his arrival.
e.In or around August 2016, the father grabbed the mother by the throat and threw her against a concrete wall, he then grabbed a large knife from the kitchen and threw it through a glass window where the mother, the children and her friend, Ms F, were sitting. Ms F grabbed the children and locked herself with them in a room. The father continued to scream and threatened the mother and children, and said “I’m going to kill you and bury you in the back yard so the dogs could dig you up and eat you”.
f.On 20 June 2018, the mother decided to pack the father’s belongings because he was “exceptionally” abusive that day. The mother had arranged for the father’s friend to collect the father’s personal belonging. The mother’s friend Ms G was present on this occasion. The mother further says the following occurred:
i. The father’s friend arrived at the home with the father on loud speaker on his phone. The father continued to abuse the mother saying “you fat bitch, I’m coming to kill you and the kids” and that he was on his way to shoot at the mother’s home because he had recently purchased a weapon.
ii. The mother contacted police. The father arrived before the police, and he then got up in the mother’s face with a closed fist and said “my mother said I’m not to leave this house until I have your head in the palm of my hand to take back to her”.
iii. The father then proceeded to punch a hole inside the home, and went to the back yard and leashed his two dogs and placed them in his friend’s car. During this time, the police arrived and arrested the father.
g.On or about 2 January 2019, the father contacted the mother and the following conversation transpired:
Mr Maciel: Where the fuck are you?
Ms Bakula: I just picked up the kids from school.
Mr Maciel: You just picked up the kids from school? I' m waiting for you here, I have no key, I have nothing.
Ms Bakula: Where's your keys?
Mr Maciel: (shouting at me) DON 'T WORRY WHERE ' S MY KEYS, I'm getting new ones I just came from the real estate. HURRY UP BEFORE I BREAK THIS DOOR, {pause} I SAID
HURRY UP.
Ms Bakula: I can’t come there.
Mr Maciel: You better hurry up and come to the house. I NEED MY CLOTHES, I NEED SHIT.
Ms Bakula: Where is your keys?
Mr Maciel: I DON ' T KNOW
Ms Bakula: What do you mean you don't know?
Mr Maciel: (shouting at me) YOU BETTER COME TO THE HOUSE OW BEFORE I COME TO YOU'RE MUMS AND DRAG YOU OUT INFRONT OF YOUR MUM AND DAD AND I WILL STAB YOUR UNCLE AND YOUR MUM AND YOU'RE BROTHER AND I WILL LEAVE AND GOODLUCK IF YOU CAN CHARGE ME. (Pause) DON’T FUCKING MAKE ME WAIT ANY LONGER
Ms Bakula: I have a call recorder on my phone.
Mr Maciel: (shouting at me) I WANT YOU TO RECORD IT. MY NAME IS MR MACIEL MUM AND X AND Y I WILL KILL YOU. IM GONNA KILL YOUR MOTHER Ms H, YOUR DAD Mr J IM GONNA STAB HIM, IM GONNA CUT HIS LEGS, IM GONNA CUT HIS HANDS AND IM GONNA CHOP HIS HEAD LIKE YOUR BROTHER. FUCK WITH ME, I WOULD KILL YOU AND IM GONNA STEP ON YOU ON THE CAR THAT l BOUGHT FOR YOU, IM GONNA DRIVE IT BACK AND FORWARD TILL YOUR CRUSHED IN PIECES. YOU WANT TO KEEP RECORDING ME? HA? YOU KNOW WHAT ELSE IM GONNA DO TO YOU?, IM GONNA BURN YOU ALIVE, AFTER YOUSE ARE ALL FINISHED DEAD TOGETHER IM GONNA BURN YOUS ALL AND COOK YOUSE FOR WHAT? FOR BULLET AND K THAT YOU LOVE. ALRIGHT? WAIT UNTIL!!!!!! IM GONNA BREAK THIS FUCKING DOOR IF YOU DON’T FUCKING COME HERE, IM GONNA FUCKING MAKE A FUCKING SCENE IN THIS PLACE FOR YOU, YOU BETTER FUCKING COME TO THIS HOUSE.... (SOUND OF DOOR SHAKING TO TRY OPEN).
(Affidavit of Ms Bakula filed 8 April 2021 at [30]. Errors and emphasis in original.)
h.On or about 2 January 2019, the father contacted the mother again and the following conversation transpired:
Mr Maciel: Yeah he's on the way.
Ms Bakula: Okay good
Mr Maciel: Everything huh! Make sure put it in blankets, put it in rubbish bags, put it in anything.
Ms Bakula: Yeah I'll put it in bags, I'll give him as much as I can do now I'm trying to get the kids to sleep.
Mr Maciel: Nah his gonna come, he can do It all. You tell him, "money, that's his bedroom and your gonna put X and Y to sleep, its true". Even the TV that you're watching I'm taking, even the TV on the wall I'm taking, even the TV in my sons room I ' m taking, even the push bike I'm taking, even the dog I'm taking, two of them, K and L because you can ' t afford, you don't have time. You remember you're at your mums from 10 till 8, now I'm AT MY MUMS YOU FUCKING SLUT.
Ms Bakula: How do you know I'm at my mums?
Mr Maciel: WHAT YOU GONNA DO YOU FUCKING SICKBITCH, IM GONNA BURN YOU ALIVE. You know if I come with money I'm gonna put a bullet in your head, I just bought a gun yesterday me and Yassin.
Ms Bakula: Oh that's good.
(Affidavit of Ms Bakula filed 8 April 2021 at [31]. Errors and emphasis in original.)
i.On or about 2 January 2019, the father contacted the mother again and the following conversation transpired:
Mr Maciel: Huh!
Ms Bakula: Yeah?
Mr Maciel: I was thinking why doesn’t your brother move in?
Ms Bakula: Why would he move in?
Mr Maciel: ahhhh but what about your dad he forgot about Country M, his not going and your mum anymore?
Ms Bakula: Of course their going! (Mr Maciel over speaking this sentence: “cos ill meet them there”)
Mr Maciel: do do do do they want me to meet them there? Because there’s not much laws then here, because maybe your dad doesn’t want to get jailed, and doesn’t want to get a wrap, doesn't want to get a criminal record, we can take it to Country M ... (pause) what do you reckon?
Ms Bakula: Can you please leave me alone!
Mr Maciel: im gonna, im gonna kill my son and daughter, before your mum and dad can walk, remember that.
Ms Bakula: That's all I needed to hear for court tomorrow, goodbye.
Mr Maciel: but im gonna, im gonna, im gonna
Ms Bakula: (Ends call)
(Affidavit of Ms Bakula filed 8 April 2021 at [32]. Errors and emphasis in original.)
It is the father’s evidence that he has previously threatened to “set the house on fire” or “set the Police station alight”, which has been an impulsive reaction due to the events he has witnessed while in detention as a child.
The father concedes both in his written and oral evidence that he has had significant involvement with police but that he is remorseful for this behaviour.
The father further concedes that his actions in the past may have caused the mother and/or children to feel “scared and upset”. In cross-examination the father conceded that “all the things she says is true”.
In 2019 and 2020, the father was involved in a number of incidents:
(a)On 4 to 6 August 2019, the father attended a mental health facility at Suburb D Hospital to visit his girlfriend and on each visit the father became aggressive, verbally abusive, threatening to bring “his 99 brothers” to kill the staff and security. On 5 August 2019, security staff physically pushed the father out of the facility and police were subsequently called. On 6 August 2019, police were again called as the father was moving around the facility carpark in an erratic manner and making aggressive gestures to security staff. The police requested the assistance of the ambulance because they were concerned the father was having a mental health episode. The police further attempted to calm the father down who was continuing to make threats of violence towards security. The father was eventually conveyed to N Hospital with police escort.
(b)In October 2019, the father was twice reported to have intimidated an employee of a rental agency with a knife;
(c)In December 2019, the father is suspected to have “sledge hammered” a motor vehicle and thereafter to have intimidated the owner of that damaged motor vehicle. The father was interviewed by the Police in relation to malicious damage and intimidation;
(d)On 22 January 2020, the father attended Suburb D Police Station and said “I’m a gangster… I’ve come to this police station with a balaclava before and I have been banned from this police station. I’ve threatened to kill police. I’ll shoot police. I’ll shoot you.” The father used his right finger to mimic the shooting of the police officer on duty behind the front desk. The Police directed the father to leave and as he was walking towards the exit he closed his fist leaving his thumb extended and dragged it across his neck, enacting a slitting motion. Whilst doing this he said “I’ll kill my son” and “See, I can threaten to shoot police and nothing will happen.” The father was arrested and charged. He was subsequently granted conditional bail at Suburb D Local Court and required to report each Monday, Wednesday and Friday until May 2020.
(e)On 28 February 2020, the father failed to attend Suburb D Police Station, breaching his bail condition. He was arrested on 2 March 2020. When asked why he failed to attend, he said that he had been unwell and that his friend drove him to a medical centre rather that the police station due to the father’s behaviour.
(f)In March 2020, the father was observed “loitering” outside Suburb D Hotel and the police suspected him of purchasing drugs. He was detained, searched and released.
(g)During June 2020, the father was stopped and searched by the police, on suspicion of possessing illicit drugs.
The father’s brother described the parties’ relationship as a “normal, happy family”. He was not aware of any problems, nor was he aware of the physical, verbal and emotional violence perpetrated by the father. Mr Maciel did not believe that the father would ever have made threats to kill the children. This is despite the father’s concessions that he did do so. It is likely that the rest of the paternal family holds similar views of the father and blames the mother for the trouble the father has found himself in with the Police.
The Children and their Relationships
The mother was the sole and primary carer of the children during the relationship. The father was disinterested and absent most of the times, and only occasionally spent short periods of time with the children without the mother present.
During the interview with Dr B, the father spoke little of the children, and when he did speak of them he spoke of wanting to see them but did not elaborate further. Dr B went on to note that “Even knowing the purpose of the interview Mr Maciel remained focused on wanting to lay blame for him not knowing details of the appointment, which he had, and also his desire to get his driver’s licence renewed and his desire to get another tattoo.”
The father does not have established relationships with the children. Indeed, the children do not even recognise their father from his photographs.
Father’s Mental Health and Drug Use
The father says that when he arrived in Australia from Country C in 2000, he was held at Town O Immigration Reception and Processing Centre in South Australia for approximately 12 months. He says that during this time he observed people being raped, impaled, set alight and murdered, and as a result has been diagnosed with several mental health illnesses and struggles to control his anger and aggression.
The father has been further diagnosed with bipolar disorder and schizophrenia, and currently attends Dr P for ongoing treatment for his mental health and chronic pain. The father says he is prescribed and compliant with the following medications:
a.Benztrop 2mg Tablet 1 tablet twice per day;
b.Dolased Forte 450mg; 30mg; 5 mg tablets 1-4 times a day;
c.Lyrica 150mg capsule, 1 capsule per day;
d.Mirtazapine 45mg tablet;
e.Olanzapine 20mg Orally dispersible tablet, 2 tablets in the evening as directed;
f.Seroquel 100mg tablet, 1 tablet twice per day as directed; and
g.Seroquel 200mg, 1 tablet twice per day as directed.
The father admits to having “experimented” with illicit drugs, most regularly marijuana. He says this was an attempt to self-medicate to manage his chronic pain and mental health conditions. The father denies the mother’s evidence that he was addicted to ICE or that he was hospitalised for any suspected drug overdose. The father says that he not used any illicit substance for over 12 months.
The father has a history of illegal drug use and addiction. He has a history of presentations to the mental health unit at Suburb D Hospital. In July 2018, the father participated in a mental health assessment through the NSW Justice Health and Forensic Mental Health Network. He was assessed as having “limited insight and poor judgment in relation to his illness”. He was observed to have “poor memory” and to be a poor historian. On the day of the assessment in 2018, the father presented as disorganised, verbose with pressure of speech, and an elevated/labile effect. This was on the “background history of treatment for Bipolar Disorder, anger management issues, poor impulse control, chronic pain, post-traumatic stress symptoms, interpersonal difficulties, personality difficulties and co-morbid substance use…”
In his report dated 11 February 2021, Mr Q described the father as follows:
Overall, over the past 15 months, Mr Maciel has presented as calm and rational, with good mood, less anxiety and no signs of drug use. There have been no signs of delusional thinking. Given his presentation I am confident that he is being compliant with his psychiatric treatment.
The father did not tell Mr Q about the threats he made towards the children, he did not tell Mr Q about the threats to the Police in 2020 nor of his arrests, and he did not tell Mr Q about the incident at Suburb D Hospital in 2019. The father did not tell Mr Q that he was subject to a firearms prohibition order, that he had breached bail, or that he was stopped and searched for drugs in 2020 by the Police. The father did not tell Mr Q about throwing the knife towards the mother or about throwing her against a wall. He did not tell Mr Q about attacking the mother with a metal bar, or shattering a glass window near the mother causing her to have a permanent scar from being cut by the shattered glass.
In cross-examination, Mr Q conceded that these matters would have been important for him to consider in coming to his recommendations.
Mr Q was able to identify triggers for the father, namely feeling disrespected and like he is not being listened to. Mr Q’s evidence is that if the father felt disrespect, it was possible that there would be a reaction of threats towards the mother.
In his expert report, Dr B described the father as follows:
Throughout the interview, Mr Maciel appeared as distracted, self-occupied and at times dismissive. At times he was witnessed to engage in lengthy self-narrative that would superficially cover multiple topics. Most of what Mr Maciel spoke of were incidents where he believed he felt aggrieved or had been wronged. He appeared unwilling to be open and honest throughout his interview.
The father’s presentation during the hearing was similar to that described by Dr B during the interviews for the expert’s report.
Attitude to Parenthood and Capacity to Meet Needs of Children
The mother has an extremely negative view of the father, and she has no concerns about the fact that the children are not able to identify their father from photographs. The mother believes that the children would be frightened of the father’s appearance. The mother was frank in her evidence that she does not want the children to have any relationship with the father or indeed the paternal family, which she does not trust.
The mother remains very frightened of the father “my heart is in my throat”. She fears for her mother and for her children. She still wakes up with nightmares.
Dr B considered and thoughtful evidence was that the list of offences and allegations made against the father represent moments of extreme risk, and that the Court should exercise extreme caution going forward. Dr B was of the opinion that without support, time between the children and the father would be anxiety provoking for the mother. Dr B agreed with the proposition that the father’s actions had been so destructive that it was simply better to cut off time completely between the children and the father. While he expressed some concern that as they grow older, the children might suffer a void if the father remains absent from their lives, he was also of the opinion that the more challenging their relationship with the mother going forward is, that will be the strongest prediction of likely search behaviours in the future.
Current Circumstances
The mother currently lives with her parents in a 4 bedroom home, and her parents assist with the care of the children. The children are doing well at school, they have a positive relationship with their maternal family and ultimately according to the mother “lack nothing and want for nothing and are perfectly healthy happy children”. The mother does concede that the children have previously asked about their father, she has never offered any information about him to the children.
The mother is currently unemployed.
The mother has been in a relationship with her current partner for approximately 18 months. According to the mother, the children see her partner as a father figure and call him “daddy”. The mother has explained to the children that her partner is not their real father, but that he loves them.
The father currently lives in a four bedroom house in Suburb R, and is in receipt of Disability Support Pension and at present, he has a full-time carer.
CONCLUSION
The father has perpetrated serious physical, verbal and emotional violence and abuse against the mother. The father has threatened to kill the children. The father has threatened serious harm to the maternal family. The father has assaulted the mother.
The father has significant and serious mental health issues. Even though he may presently be compliant with his treatment, he is still capable of engaging in very serious violent and anti-social behaviour, as he has in 2019 and 2020.
The father has a history of drug use.
The father’s capacity to parent his two children is significantly impaired by these factors. His behaviours pose a significant and unacceptable risk of harm to the children, not only in terms of physical harm but also emotional harm and abuse.
If the children were to spend any time with the father, even short periods of supervised time twice per year for the purposes of identification, this would have a substantial and negative impact upon the mother and her capacity to parent the children and provide for their needs.
It is in the children’s best interest for there to be an order for the mother to have sole parental responsibility.
It is in the children’s best interest that there be an order for the father to spend no time with the children. Such an order will provide further safety guards for the mother, who the Court accepts, has done her best during the parties’ relationship and for some time post separation, to ensure that the children have a chance of having a relationship with their father.
It is time for the father to take some serious and meaningful steps to get his life in order and change his behaviours for the good. He has heard the evidence of Dr B in terms of what may be required to show that he has managed a sustained change to his lifestyle. The father has some hurdles to overcome, but they do not appear to be insurmountable and he has already tapped into treatment which may see him on his way to becoming a responsible member of society. To that end, an order will be made permitting the father to provide a copy of Dr B’s report and the Court’s Reasons for Judgement to all of his treating medical and allied health treaters.
A restraint on the father from approaching the mother’s residence, place of work and the children’s school is an appropriate safety guard in all of the circumstances. As such, the Court is satisfied that an order pursuant to s.68B ought to be made.
This is so not only on the basis of Mr Q’s evidence as to the triggers which set the father off, but also given the father’s behaviours in 2019 and 2020 while these proceedings were on foot. The father has little to no respect for authority.
There is presently no apprehended domestic violence order for the protection of the mother.
The mother has the right to feel safe and not to worry that the father will now come at her, particularly noting the order for no time. The children have the right to a safe home and a primary care giver who is able to lead a full life without fear of harm from the children’s father.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgement will be made.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Dated: 22 December 2021
0
6
0