BEST & BEST
[2014] FamCA 450
•27 June 2014
FAMILY COURT OF AUSTRALIA
| BEST & BEST | [2014] FamCA 450 |
| FAMILY LAW – CHILDREN – Where the matter was remitted by the Full Court for re-hearing – Where the father sought to re-open all of the parenting issues seeking orders that he have sole parental responsibility, that the children live with him and spend some time with the mother – Where the mother sought orders that the children spend supervised time with the father until each of them attains eighteen years of age – Where the Independent Children’s Lawyer, ultimately, sought orders that the father have no contact with the children until each of them attains sixteen years of age – Whether, having regard to the evidence, there is a change in circumstances which would, in the best interest of the children, justify a reconsideration of the parenting orders previously made – Where the previous trial judge had found that, at the date of the hearing, the father had a paranoid personality disorder and also suffers from a depressive disorder which is episodic in nature and may reoccur – Where the court determined that such finding is a finding which should not be reconsidered in these proceedings – Res judicata and issue estoppel in parenting cases considered – Where the court determined that it is not in the best interests of the children for there to be reconsideration of the parenting orders and the only matter to be determined is consideration of the time the children should spend with the father, which is the issue remitted from the Full Court – Where the court was of the view that supervised time would not work as a practical arrangement – Where the children having no contact with the father is the order that is least likely to lead to further litigation between the parties and is most likely to reduce the conflict between the parties – Where orders made that it is in the best interests of the children that they spend no time with the father and that the father be restrained from contacting the children by telephone, email or any other form until the children each attain the age of 18 years and that the father be restrained from contacting the mother in any manner whatsoever. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Corporations Act 2001 (Cth) Mental Health (Forensic Provisions) Act 1990 (NSW) s 32(3)(a) |
| Best & Best [2012] FamCA 28 Best & Best [2013] FamCA 854 Marsden v Winch (2009) 42 Fam LR 1 Rice v Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC at 93 - 363 |
| APPLICANT: | Mr Best |
| RESPONDENT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER: | Michael Davies |
| FILE NUMBER: | WOC | 91 | of | 2010 |
| DATE DELIVERED: | 27 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 4, 5, 6, 7 & 10 March 2014 |
REPRESENTATION
| THE APPLICANT IN PERSON: | Mr Best |
| THE RESPONDENT IN PERSON: | Ms Best |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maguire & McInerney Lawyers |
Orders
That the children shall spend no time with the father.
That the father is hereby restrained from contacting the children by telephone, email or any other form until the children each attain the age of eighteen (18) years.
That the father is hereby restrained from contacting or approaching the mother in any manner whatsoever.
NOTATION:
A.I note that the orders made by her Honour Justice Ryan on 3 February 2012 and as varied by the Full Court on 1 February 2013 otherwise apply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 91 of 2010
| Mr Best |
Applicant
And
| Ms Best |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are parenting proceedings between Ms Best (‘the mother’) and Mr Best (‘the father’). There are four children of the marriage who are presently aged 15, 13, 9 and 7 years.
The proceedings come about in the following circumstances.
On 3 February 2012 Ryan J, after a six day hearing ordered that the mother have sole parental responsibility for the children and that they live with her. The father was to spend time with the children in a graduated program commencing with two hours each alternate week supervised at the Z Organisation Contact Centre, Wollongong, progressing ultimately to unsupervised time each alternate weekend from after school Friday until 5 pm Sunday. The father was otherwise restrained from approaching the mother and the children or communicating with them. The time the father was to spend with the children was subject to a number of conditions. One of those conditions was that the father continued to consult and personally attend upon Dr D or, such other psychiatrist as recommended by Dr D, no less than monthly until the end of 2013.
The supervised time did not take place.
The father appealed against the orders just described. On 1 February 2013 the Full Court allowed the appeal, set aside the order regulating the time the children were to spend with the father and remitted that issue for rehearing. The Full Court made some minor amendments to two other orders. Importantly, the orders as to parental responsibility, the children living with their mother and the father not contacting or approaching the mother and the children remained intact and in force.
When the matter came before the court for re-hearing the father indicated that it was his intention to seek to re-open all of the parenting issues seeking orders that he have sole parental responsibility, that the children live with him and spend some time with the mother.
The issues
Thus the proceedings have a number of elements. There is the issue of the remitter of the time the father was to spend with the children and there is the issue as to whether or not the father should be permitted to re-agitate the parenting orders currently in place. Finally, there is the issue of what orders should be made either generally, if the court was satisfied it was appropriate, in the circumstances, to reconsider those matters or, if not, what are the appropriate orders for the time the father is to spend with the children.
The mother sought orders that the children spend time with their father supervised at a contact centre until they each reached the age of 18 years.
The father sought orders that he have sole parental responsibility for the children, that they live with him and that they spend two days per fortnight with their mother.
At the commencement of the hearing the Independent Children’s Lawyer (‘ICL’) proposed orders, essentially, along the same lines of the orders previously made by Ryan J. That is, that the mother have sole parental responsibility, that the children live with her and that the children spend time with their father commencing with two hours each alternate weekend supervised at the Z Organisation Contact Centre graduating, over time, to each alternate weekend from the conclusion of school on Friday until 5 pm Sunday.
At the conclusion of the hearing the ICL changed his position and proposed that the father have no contact with the children whatsoever until they each obtain the age of 16 years.
In this judgment I will first provide some background material. I will then set out what I regard to be the important matters contained within the earlier parenting judgment so that questions of issue estoppel and change in circumstances since that hearing can be more readily understood.
I will then deal with a number of issues the subject of particular dispute before me. Some of these were matters that had been previously ventilated before Ryan J and some were not.
I will then consider whether or not, having regard to those matters, there is such a change in circumstances as would, in the best interests of the children, justify a reconsideration of the parenting orders previously made.
I will then consider what orders it is appropriate to make.
Background
This background material is largely derived from the judgment of Ryan J. I shall indicate where I understand such material to be in dispute.
The father was born in 1964 and is presently aged 50 years.
The mother was born in 1972 and is presently aged 41 years.
The parties commenced cohabitation in 1997 and were married in 1998.
C was born in 1999 and is presently aged 15 years.
In late 2000 the father suffered a lower back injury. He suffered significant pain for some years. The mother became the primary income earner for the family.
The father at that time took Panadol, cannabis and Valium, and, on occasions, Nurofen and morphine in excess of the prescribed doses as well as alcohol.
L was born in 2000 and is presently aged 13 years.
In October 2004 the father underwent surgery which reduced his back pain and improved his mobility.
In March 2005 the parties consulted a psychologist for family therapy which continued for about four years.
V was born in 2005 and is presently aged 9 years.
In mid-2005 the father suffered a relapse of his back injury. He suffered chronic back pain and became, at times, suicidal.
The father’s back deteriorated further in January 2006.
In March 2006 the father underwent surgery which successfully reduced his back pain and it seems not to have re-occurred. Shortly after the parties separated but by the beginning of June 2006 they were reconciled. Notwithstanding the reconciliation, the father continued to be in a very depressive state which had existed for some time.
O was born in 2007 and is presently aged 7 years.
By this time the father was once again unemployed. He set to work spending most of his days trying to develop an invention. The mother worked and took O to work with her. When the other children were not in day care or school they were cared for by the father.
Although there was some dispute about it before Ryan J her Honour found that the parties separated in November 2008.
On 25 November 2008 the father attempted to commit suicide by overdosing on a pain relief medication Endone. The father was taken to hospital and assessed by the duty psychiatrist. Against medical advice he left the hospital.
Following discharge the children started to live week about with each parent. The father regained employment. The trial Judge found that from then and for some time the father started to say derogatory things to the children about the mother such as ‘your mother has left us’, ‘your mother is no longer part of the family’.
On 12 May 2009 the father sent the mother a text saying ‘Tried hard to be a good husband. Please look after my children. Party hard. I will always love you’.
The mother went to the police who eventually found the father drinking whilst seated in his car at a beach. He was involuntarily admitted to hospital. The following day, again against medical advice, he discharged himself and shortly after had a seven day holiday with his brother in Far North Queensland. C went with him.
On the father’s return he resumed full-time employment and the week about living arrangement continued. The father continued to tell the mother things such as ‘This is all your fault’ and ‘You should fix our family’.
On 5 December 2009 the mother delivered V to the father. O was in the car seat. The father became extremely angry, reached into the car and repeatedly smashed his fist into the dash board, steering wheel, roof and lights. He had cut himself on the mirror and where he struck he left blood. He took the mother’s keys and threw them down the driveway. When the mother went to retrieve the keys the father took O. L came out and saw what had occurred and the father told her to get back inside which she did.
Four days later on 9 December 2009 the father consulted Dr M, his psychiatrist. Dr M commenced the father on three drugs - Avanza, Cymbalta and Lamotrigine.
Dr M diagnosed the father as suffering from an ‘agitated major depression’. He seemed to respond well to the treatment regime and a significant improvement in mood and general wellbeing was achieved.
On 10 December 2009 the police obtained an Interim Apprehended Domestic Violence order against the father for the mother’s protection.
On 17 December 2009 the father again saw Dr M. Shortly after the father’s brother committed suicide which greatly upset him.
The father saw Dr M again on 6 January 2010. Dr M thought the father was doing extremely well.
In late December 2009 the father sent the mother a number of SMS messages in which he forcefully tried to effect a reconciliation.
In early January 2010 the father telephoned the mother again attempting to reconcile. The mother turned her phone off. When she awoke she saw a number of missed calls from the father and from a mutual friend. The mother called the mutual friend who informed her that he had received a call from the father to the effect that he had enough explosives in the house to destroy the suburb and could not go on. The mother drove to the father’s home. She found him smoking in bed. There was an empty scotch bottle and beer bottles on the floor. The mother left and contacted Dr M’s surgery. In turn, they contacted the local mental health team who again spoke to the mother. Later in the morning the mother received an SMS text message from the father asking if she would return to the house. She rang him and he said ‘If they step one foot inside this house it will blow it’s all wired’.
The upshot was that the mental health team informed the police who attended at the scene.
When the police arrived at the house they found that the father had placed wires on the front door leading into the house. The father had attached notes to the front and rear doors of the house describing the nature of the explosives he said he had inside, together with a description of the timing device, delay and blast radius.
Although, in fact, there were no explosives within the house the police were not to know.
It was only later that night that the police incident ended.
The father was apprehended by the police and involuntarily admitted to hospital.
On 20 January 2010 the father was granted bail and discharged from hospital.
On 21 January 2010 interim consent orders were made for the father to have telephone contact with the children twice a week.
On 17 March 2010 the charges against the father were dismissed pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act1990 (NSW). To obtain that order the father relied upon several reports made by Dr M.
On 30 May 2010 O developed a rash and was taken by his mother to the hospital. She asked her sister to inform the father about the situation.
O was diagnosed with a blood condition characterised by a very low platelet count. On the morning of 31 May 2010 he underwent a transfusion and it was possible that he might require a further one. His condition worsened and arrangements were made for him to be transferred to a children’s hospital in Sydney where tests would be undertaken to see whether or not O had Leukaemia.
The father, with the assistance of the police, approached the mother, who agreed that the father could have a visit with O which took place. The father, again involved the assistance of the police, in an attempt to try to see O on 4 June 2010. The hospital refused to allow the father to spend time with O. Justice Ryan said:
91.At the hospital the father demanded that the mother personally meet him before he would agree that [O] receive the recommended medication. It being his view (and notwithstanding that the mother had sole parental responsibility) that such a decision should be made jointly and only in the context of face to face discussion. In the event doctors convened a telephone meeting during which consensus about treatment was reached. Unfortunately the effect of the father withholding his consent was that for some time the child was denied recommended and necessary treatment. It is no overstatement to find, as the Court does, that the father held the child’s wellbeing to ransom.
The father said of these findings of Justice Ryan:
·The father refutes the allegation of Justice Ryan and does so in the most strongest possible terms available.
·The fact remains that the mother refused to assist or provide the father with access or information with regard to the seriously sick son [O].
·Even the most casual reader of the correspondence (date and time ordered) contained in Appendix 1 will soon realise it was not the father holding [O] at ransom but rather the mother.
(As per original)
As it turned out O’s condition was not serious and he recovered well.
On 31 August 2010 the single expert’s report to the court was released. The single expert, Dr W recommended the family return to the children spending equal time with each parent.
Shortly after the release of the report the father said to L ‘I have some great news. We will all be together again soon. On 30 September you will be coming home for good. Can you please tell the others?’ He said similar things to each of the three elder children.
The father consulted Dr D, who became his treating psychiatrist, for the first time on 12 October 2010.
The family law proceedings came before a federal magistrate on 3 September 2010. The Federal Magistrate reserved his decision and made interim orders on 13 October 2010. Those orders provided for the mother to have sole parental responsibility for the children, that the children live with the mother and that the children spend time with the father for eight hours on Sundays and then, from a date in the future, from after school Wednesday until before school on Thursday.
The children’s first weekend with the father took place on 23 and 24 October 2010.
On 28 October 2010 the father sent the following SMS text message to the mother:
Fine [the mother’s given name], you wont let them call me, u wanna play big decider of all things for us all, the big boss lady u play ur games anyway u want [the mother’s given name], now our kids can & will decide for us. Me, all I wanted was us to be was the best parents we could be & put the past behind us. Last weekend they told me what uve been doing. How dare u treat them that way, u sick bitch. Enjoy ur time [the mother’s given name], its going to be very short lived, obviously to u our kids mean nothing. U think I have mental health issue’s, ur wrong and come 11:45 Wensday next week I’ll prove that. But I was subjected to many years of domestic violence from u. Go read the diffination & u’ll find that what u did to me and our family is domestic voilence. Ur own words in the section 15 confirms it. Leaving me to lie in shit for a week wile u went on holiday with mummy without even leaving me a meal given I couldent even walk, 1perhaps we should talk about u leaving me lying on the sidewalk in agnoy after phiso whilst u went shopping or u not even once telling me id be OK or u never once offering me any support or u telling me I dont have time for ur shit 20 minutes after [the father’s brother] was cremated on the day of [Ms X’s] wedding. Perhaps we should talk about u lieing to everyone Perhaps we should talk about ur panic attack after i made u well again after u put ur back out and went within 48 ours form you telling everyone i was the perfect husband to you saying I want a divorce. Perhaps [the mother’s given name] we should spend some time explaining to everyone why I tried to commit sucide 3 times but u never once tried to help ur jusband. U want to accuse me of what ever, that fine but y make dam sure u put the facts out there in a proper manner so we can all judge them. ur own sisters & mother will attest to the sort of person I am and Ive never once let them down. The garbage u did to me whilst I was injurewd and the 4 years after I had an operation, go figure. The crap u did to me & our kids was and is bizarre. U even had me arrested & put in jail for trying to save ur butt. a 2 year good behaviour bond I got and yet even [Ms X] said at the time i was right. Sadly for us all the only thing that means anything to u is winning and tot that end u’ll even sacrfice our kids . go figure – but now, now we are all going to hold u fully & utterly accountable and what flows from that is now ur problem, me and the kids – where just gonna get on and make the best of what we have and u, u can go to fucking hell and for what u have done to us all, I hope u suffer for the rest of ur miserable god dam life. Go and get ur head sorted [the mother’s given name], Ive been telling u to do that since the day I got our of hospital, had u done that WE COULD HAVE BEEN A FAMILY, a bloody awesome family – u god dam fucking idot.
(As per original) (As set out in Ryan J’s judgment at paragraph 104)
The father sent a copy of this SMS text message to a number of members of the mother’s family, her friends and acquaintances.
The copy of the SMS text message was provided to the police by the mother. The police arrested the father and charged him with breach of an apprehended domestic violence order. He was held in custody overnight before being released on bail.
After what was described as an unseemly exchange of text messages between the mother’s step-father and the father the following text occurred:
Me what Im about is my wife, my kids and my family. I went to work and I got hurt and here wr u think I wont fight for my kids, won’t fight for my family or my wife – then u can simply fuck off. What happened to us is wrong and I dont give a fuck. I will undo that wrong, i will have my wife and family back. Those cunts will not take them from me my family and I don’t give a fuck what u or anyone else says, i will have my family back, u think I’m wrong, try me, and any one or any thing that gets between my and my family – I WILL TAKE THEM OUT and guess what, even [if] the judge agrees with her, she loses, they are, regardless off anything, gonna walk out her door. Too fuckin bad for her ah.
(As per original) (As set out in Ryan J’s judgment at paragraph 107)
On 2 November 2010 a federal magistrate suspended the orders by which the children were to spend time with their father or communicate with him by telephone.
On 4 November 2010 the father was found to have breached the Apprehended Domestic Violence Order.
On 26 November 2010 the matter was transferred to this Court. All the previous orders relating to the father spending time or communicating with the children were suspended and, in lieu, an order was made by the Federal Magistrate that:
2.The children spend time with the Father at a supervised contact centre at dates and times to be determined by that centre.
The mother then contacted the Z Organisation Contact Centre and arranged to complete an intake assessment.
The father maintained his opposition to undertaking supervised time with the children until 31 January 2011.
Supervised time at the contact centre commenced 11 March 2011.
On 9 May 2011 the father filed a Contravention Application relating to non-communication concerning the christening of V and O, O not attending at the contact centre, provision of details of sporting bodies to the father and ear piercing.
On 6 April 2011 the father filed a further Contravention Application alleging the mother had failed to inform him of medical problems in relation to a head injury suffered by O on play equipment.
Both applications were dismissed.
On 23 May 2011 the parenting case commenced before Ryan J. Her Honour gave judgment on 3 February 2012. Her Honour made the orders that have been set out earlier.
On 4 October 2011 Z Organisation informed the parties that they had suspended supervised time because of the father’s conduct towards a member of staff.
After the judgment was delivered the mother made attempts to have Z Organisation resume supervised contact.
On 5 March 2012 the father wrote to the mother’s lawyer (Annexure ‘AN’ of the mother’s affidavit sworn 29 July 2013) as follows:
…
Below [is] just a taste of what she is putting my children through, being the wonderful, caring, delightful & insightful mother she is. Now I will need to have a discussion with [L] about my mental healthy thanks to your client Ms Wright.
dear dad,
plaese go and see the doctor and the super vised visoets place
love you lots & lots
[L] ☺
You are both very aware of my views on the subject of supervised visits and until I get a written guarantee from you both that you will not engage in the practices that so effect my children last October and brought about the suspension of supervised visits I will not change my mind.
And if you don’t think I realise the agony that my children, [L] in particular, are going thorough then you are very sadly mistaken but at the moment I must put the longer view in place or she will continue to do this for a very long time to come. Simply put – enough is enough.
The ball is now very much in both your courts and I await your response
(As per original)
The supervised time never took place.
On 24 September 2012 the father filed a Contravention Application against the mother. One of the charges was that the mother had not facilitated the relationship between the father and the children pursuant to the orders made by Ryan J and that she had not facilitated the children spending two hours each alternate week supervised at the contact centre until the end of Term 3 2012. Rees J found that the contact centre had declined to exercise a supervisory role. Her Honour found that the mother had not contravened the order.
One of the charges contained in the Contravention Application was that the mother had failed to deliver the children to the father because she did not deliver the children to the father each alternate Saturday following the end of Term 3, 2012.
It is to be recalled that the orders of Ryan J provide for there to be supervised time with the father until the end of Term 3, 2012 and thereafter there would be a commencement of a gradual increase of unsupervised time. The father took the view that the supervised time was not a precondition to the commencement of unsupervised time and that therefore the mother was in breach of the orders.
Rees J found:
45.It is clear from her Honour’s Judgment that she did not intend that the father should have unsupervised time, until such time as there had been a substantial period of supervised time. Her Honour envisaged that the period would be three school terms. There is no dispute that the father has not had any supervised time with the children, and in circumstances where her Honour’s intention is clear, I find that even if, on a strict interpretation of the order, the mother has contravened it, she has a reasonable excuse to doing so, having regard to the matters set out in the Judgment.
It is clear that her Honour found that the supervised time was a precondition for unsupervised time.
The father appealed the decision of Rees J and on 1 February 2013 the Full Court dismissed that appeal.
It is noteworthy that, notwithstanding those two judgments, the father continues to hold the belief, which he forcefully put to me during the course of this hearing, the mother remains in breach of the orders for failing to deliver the children to him for unsupervised time.
On 1 February 2013 the Full Court published its judgment in the appeal from the orders of Justice Ryan. The appeal was allowed and the following orders made:
2.Paragraph 4 of the orders made by Ryan J on 3 February 2012 be set aside and the issue of the father’s time with the children be remitted for re-hearing.
3.Order 6.1 of the orders be varied by deleting from the said order the words “no less than monthly”.
4. Order 6.3 of the orders be set aside.
Thus, almost all of the orders made by Ryan J remained in place including the orders for parental responsibility, the children living with their mother and that the father not contacting the children other than in accordance with the orders.
On 22 February 2013, by way of an interim order, I made an order that the children spend time with the father for two hours each alternate weekend supervised at a contact centre nominated by the father, approved by the ICL, in writing at such times and dates as arranged by the contact centre.
No time pursuant to that order has been spent with the children. The father refused to accept supervised time. Although there would have been difficulties returning the same contact centre the mother, as appears later, had located a suitable alternative.
On 24 October 2012 the father filed another Contravention Application alleging that the mother had failed to provide the children to spend time with the father in accordance with Order 4.2 made by Ryan J. On 6 February 2013 Fowler J summarily dismissed that application.
On 4 November 2012 the mother received an SMS text message from the father. The message had also been sent to members of the mother’s family including her mother Ms K and Ms X and a number of friends. The message (being Exhibit W) said:
Whilst I should be angry & Ive every right to be so Im not. I have till the of 9th Nov to find a way to not humiliate her so please help me find a way out – [Ms K], [Ms X] You both lied in a court of law – u both know it & u did so without any care and I will never ever forgive u for that but for the moment work with me to protect my family. Shes now facing very serious charges that carry jail terms. Please work with me to stop that. Please!!! Help me undo the past and give my kids what the want mum & dad – if any of u fail to do this then acceapt the responsibility of what will occur
(As per original).
On 10 December 2012 the father sent this SMS to the mother:
Either accept that your position has failed or I will insist that u get to spend time in gaol for your failure to comply with Orders either way u are going to be held accountable for what u have made us all endure and for that alone our children will judge u harshly. Either work with me to achieve an out come for our kids or I promise you [the mother’s given name] I will have you held accountable regardless as to how untouchable u may like to think u are. Trust me, u r not so untouchable that I wont find a way to bring u down & if you force me to, I will do that in a manner such that u will not rebound given ur lies to the Court contravention of Orders etc etc. Give up ur crap [the mother’s given name], send the kids home and end the stupidity or ur going to find that this is all going to have a very bad ending and given ur actions, one that u r going to regret. [Ms LL], [Ms K], [Ms X] and [Ms I] ccd as a matter of record.
(As per original).
Judgment of Ryan J of 3 February 2012
It is necessary to identify some of the key findings made by Ryan J.
Her Honour found that both before and after the father’s 2006 back surgery he had severe problems with insomnia, pervasive depression, loss of interest, social withdrawal, hopelessness and despair, problems with suicidal ideation and significant problems with psychomotor agitation and inattention to the point where he was ready to snap at anyone in his way.
Her Honour referred to her findings that in 2009 the children were told by the father things such as ‘Your mother has left us’. Her Honour found that his actions were emotionally abusive and, although he later realised they were inappropriate, at that time they were designed to undermine the children’s relationship with the mother and for them to align with him.
In relation to the conversations that the father had with the children shortly after the release of the single expert’s report in September 2010 her Honour found:
97.…These are but two of a number of examples of the father creating expectations in the children about their living arrangements and what would happen next in these proceedings. His actions on this and a number of other occasions in effect created an emotional roller-coaster for the children without regard for how they and the mother might manage their reactions when events turned out other than as he promised. This is a simple example of how little insight the father has in relation to the effect of his actions upon the children’s emotional well-being, the pressure he placed upon their relationship with the mother and her having to deal with the consequences thereof. In short these statements to the children show there are serious questions about the father’s capacity to meet the children’s emotional needs other than when doing so coincides with his self interest. Similar issues do not arise in relation to the mother which is a factor that weighs heavily in favour of her having primary responsibility for the children’s day to day care and sole parental responsibility.
Her Honour noted the opinion of the single expert that ‘all the children maintain a strong wish to spend more time with their father’. Her Honour said:
128.… Dr [W] pointed out that but for the children’s affection for the father an order that they not spend time with him might be in their best interests. He emphasised that he does not think that presently there is a risk of physical harm by the father to the children. However, a risk of this type could develop when the children are older and engage in behaviour which he views as challenging him even if, such a risk was assessed as being low. I agree.
Her Honour was satisfied that the father at the time of the hearing had a paranoid personality disorder and a depressive disorder (presently in remission) which is episodic in nature and may recur. The father was found to have narcissistic and borderline features to his personality.
Her Honour found, to her strong satisfaction, that the mother did not have a personality disorder or mental health difficulty.
Her Honour found that if the father does not again become depressed there is a very low level risk of physical violence. The risk was best managed by the father continuing to attend psychotherapy and by limiting contact between the parties.
Her Honour found that the children were not at risk of exposure to family violence in the mother’s care.
Her Honour was satisfied that:
182.… [T]he father’s behaviour has adversely affected the children and, that unless the children can be protected from him undermining their relationship with the mother and maternal relatives in the future, there is the potential for serious adverse future consequences in these relationships and to the children’s overall well-being.
Dr M & Dr D
Dr M was consulted by the father in December 2009.
The father has repeatedly stated to the court that in his view that the police incident occurred as a result of ‘a toxic combination of drugs prescribed to the father by Dr M to which the father had an adverse reaction’.
It is the case of the father that the combination of Avanza, Cymbalta and Lamotrigine, in the doses prescribed by Dr M, was a toxic combination of drugs. This combination was made more dangerous by him being prescribed Panadine Forte by N Hospital. He asserts that Lamotrigine and Cymbalta have an adverse reaction with codeine. He also alleges that Cymbalta and Avanza are drugs that have an adverse reaction in combination.
To establish these adverse aspects of the drugs prescribed to him the father annexed a number of product information brochures and pages from websites dealing with drug interactions. In the absence of expert evidence explaining the meaning and significance of that material, it is of little value.
The father called Dr M as a witness. In the ordinary course, that placed restrictions on the manner on which he could question Dr M.
When questioned, Dr M said that the father was started on an appropriate starting dose of Cymbalta and Avanza. He said that the starting dose of Lamotrigine prescribed to the father was the recommended starting dose in December 2009 but that the recommended starting dose for this drug today was at least fifty per cent lower. This was because it was found a sudden dose of the magnitude prescribed to the father could cause a severe skin rash which could be fatal.
Dr M was then asked if he had prepared false reports or tampered with copies of the reports. Dr M was shown two sets of documents. Each set contained what appeared to be medical reports of the same date in relation to the father signed by Dr M but containing, in parts, different text. Dr M explained in each set that one copy was a draft and one was the final report. He said that both bore the signature because it was an electronic signature automatically affixed to the document when a report template was opened and thus it appeared on both of the draft and the final copy.
Finally, Dr M was asked if he was a registered medical practitioner. This was because the father had undertaken an internet search and found that ‘[Given Name: P] [Surname: M]’ was not a registered medical practitioner.
Dr M said that he was and the reason why the father’s search was unsuccessful was that he was registered under the name of [Given name: an abbreviation of P] [Surname: M].
This apparently innocent explanation did not prevent the father from submitting at the end of the trial that Dr M was practicing under a false name and engaging in misleading conduct.
Dr D became the treating psychiatrist for the father.
In a report dated 7 August 2011 (being Annexure ‘A’) Dr D opined that:
I noted at the time of the episode in January 2009 [the father] had been prescribed an unusually and potentially toxic combination of antidepressant medication. It was suggested by Dr. [M] that this had precipitated a manic episode and that this was the underlying cause of [the father’s] behaviour. However a diagnosis of mania was not confirmed from examination of the hospital notes and it is as least as likely that there was a toxic effect from the combination of prescribed medication, particularly with the additional effect of alcohol.
Although I am of the opinion that there remains a theoretical possibility of an underlying bipolar disorder remains this is increasingly less likely and the toxic effect of medication is more likely to have played a major role in causation.
Dr D, when giving oral evidence, confirmed that the starting dosage of Cymbalta and Avanza prescribed by Dr M were, in his opinion, normal and appropriate starting doses. Dr D said that the combination of the two was unusual. Normally a patient is commenced on one antidepressant in addition to tranquilisers. He said that both Avanza and Cymbalta were antidepressants and would normally only be prescribed in combination for someone with chronic depression.
Dr D says that Lamotrigine is a tranquiliser and was not a significant factor in the events. He confirmed Dr M’s evidence about the appropriate starting dosage.
Dr D has, in a number of reports (tendered as ‘Exhibit A’), expressed the opinion that the father continues to work and function without symptoms and there is no need for the curtailment of his access to his children or for any need for it to be supervised. This is consistent with Dr D’s view that the father could not be diagnosed with a psychiatric or personality disorder. He regards the events of January 2010 as resulting:
… from a combination of medication and substance toxicity leading to a disinhibition in a vulnerable and highly defended individual. As noted above I am of the opinion that [the father] does not meet the formal criteria for personality disorder.
It was a requirement of Ryan J that the father undergo continued psychiatric supervision by Dr D. This was consistent with the view of Dr D, expressed in a report of 19 April 2011 that, with ongoing regular psychiatric supervision, the level of risk is sufficiently low, that there would be no need for the curtailment of the father’s access to his children or a need for this to be supervised.
Not long after the father commenced seeing Dr D on a regular basis Dr D formed the view that continued psychotherapy and supervision was not necessary because he was going well, as far as he could see.
In his many reports Dr D did not refer to the attempted suicide in 2009, the 2009 involuntary admission to hospital or the 2009 incident in which the father smashed the dashboard of the mother’s car.
Of the two hospital admissions, Dr D had no reference to it in his notes but he said he had seen the hospital records. He thought that the father had merely gone to hospital and had not been admitted.
Dr D was not aware of the incident in the car. Dr D described that as an inappropriate over-reaction.
That incident, and the two hospital admissions, was said by Dr D to be matters that increased the risk that he had identified. The risk was of a recurrence of the psychological state that led to the police incident.
Dr D had earlier said that the father was prone to inappropriate anger but had been better in that regard.
Dr D was referred to the SMS text message the father sent to the mother on 10 December 2011. Dr D said that if that SMS text message contained a violent threat the threat would be concerning, would need investigation and that it would be considered an inappropriate angry outburst.
Dr D was shown an email from the father dated 10 March 2013 (Annexure ‘D’ of the ICL’s affidavit affirmed 11 March 2013) which he sent to the ICL. Included in it was:
And if you think I’m not about to start raising mary bloody hell – then you & [the mother’s given name] ought think again – because now “mary bloody hell” won’t even come close to describing it”
(As per original).
Dr D did not see this as a troubling threat but that it was inappropriate.
When it was suggested to him that correspondence went beyond those two examples already referred to, Dr D said that it showed that the father was angry, that it did not go beyond that but the correspondence was not a good idea.
Ryan J found that, at the date of the hearing, the father had a paranoid personality disorder and also suffers from a depressive disorder which is episodic in nature and may reoccur. That finding is a finding which should not be reconsidered in these proceedings.
In Best & Best [2013] FamCA 854 an interlocutory judgment delivered 28 October 2013 in these proceedings, I said:
20.This is confirmed by the doctrine of res judicata. Res judicata is described as:
A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment. A judgment in personam binds the parties and their privies, and because this is so basic it will generally be assumed in what follows. (Reference omitted)
21.Where the judgment is reversed on appeal the judgment below remains conclusive until the appeal is allowed. When an appeal is allowed the original judgment is avoided ab initio and replaced by the appeal decision which becomes the res judicata between the parties. A res judicata may be an estoppel as to the entire case (cause of action estoppel) or simply as to necessary and fundamental facts determined in deciding the issues before the court (issue estoppel). In parenting proceedings, where the interests of the child are paramount, cause of action estoppel has no place. Issue estoppel does have a limited role to play in that fundamental facts decided by a judge that led to that parenting decision should not be re-litigated. That does not prevent the court, in appropriate cases reconsidering the issue as to what the appropriate parenting orders should be.
22. In Rice v Asplund (1979) FLC 90-725 Evatt CJ said:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
23. In Marsden v Winch (2009) 42 Fam LR 1 said at [50]:
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1.The past circumstances, including the reasons for decision and the evidence upon which it was based.
2.Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3.If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by its significant re-litigation.
24.The fundamental starting point for determining whether significant changes have occurred which require a court to reconsider the earlier decision are the reasons for the earlier decision itself. That is to say the earlier decision is taken to be correct. The court looks to see whether, having regard to the circumstances set out in that Judgment and the circumstances now found to exist, there is such a change as would justify proceeding with and, if necessary, altering the parenting orders. Thus, the opportunity does not arise for a reconsideration of the correctness of the earlier decision itself.
(References omitted)
Thus, I am of the view that it is not open to me to reconsider the issue as to whether or not, at the date of the judgment given by Ryan J, the father was then suffering from the disorder found by Justice Ryan.
If I am wrong as to that it is necessary for me to form my own view as to the father’s mental state. In any event, a finding must be made as to his present mental state.
In a report dated 18 March 2010 Dr M said:
With regard to [the father’s] bipolar II disorder he remains in sustained, full remission. There are no mood symptoms. There are no disturbances in his social behaviours. His speech is fluent and he is able to express himself articulately and concisely. There is no formal thought disorder. His mood is euthymic and his effect is bright and reactive. There is no suicidal ideation. There are no psychotic features and no perceptual disturbance. His insight, motivation and compliance have been very good.
Dr W said in his second report dated 10 May 2011:
9. On the other hand I now have no doubt in expressing the opinion that [the father] is a significantly dysfunctional individual. By any account the apparent lack of common sense and how he goes about trying to achieve his goals is to a level that is clearly self-destructive, and the man in the street would even be questioning if he is at times out of touch with reality.
10.For him to convince himself that Dr [D’s] report gives him a clean bill of mental health whilst also convincing him that the subpoenaed material establishes that [the mother] is the one shown to have serious mental health problems, displays an ability to convince himself of anything that suits his purpose, despite all evidence to the contrary.
11.I find it disturbing, the Court having agreed to a schedule of increased contact, that [the father] was immediately unreasonably demanding on the Contact Centre, and after the first night of overnight Contact he was, despite an AVO, pressuring the mother for an additional night to that stipulated in Interim Orders. When she did not respond one could safely say “he lost it”.
12.Even then there is no regret expressed for his action, everything is someone else’s fault, even to the point that he sees conspiracies against him. Through all this he continues to convince himself he is acting out of love and in the interests of his children.
13.If one adds to this his extraordinary and highly dysfunctional outbursts as documented in his messages to [the mother], the ICL and his mother’s partner, I consider that there is now overwhelming evidence of his displaying Paranoid Personality Disorder, and as often the case, some features of other categories of Personality Disorder.
14.Given his lack of insight and his failure to take any responsibility for his self-defeating behaviour, I cannot see that he is likely to co-operate with any treatment that could possibly make a difference. If anyone declines to support his dysfunctional options, he angrily rejects them.
15.Given his highly disturbed reactions when he feels cornered I cannot have a firm opinion as to whether in addition he has Bipolar Disorder. I consider it as possible that at the time of the [police incident], that rather than his being hypomanic as a response to anti-depressants, the episode was another highly dysfunctional response coming out of his Paranoid Personality Disorder, his behaviour possibly exacerbated by alcohol and marijuana.
Dr D must be taken to have modified his earlier opinion that there is no reason for there to be any limit on the father’s contact with the children, after having been informed of the two suicide related admissions to hospital. As Dr D says, that, of itself, increases the risk of recurrence of psychological issues.
Dr D has also said that if the view was taken that the father was sending violent threatening messages that would also increase the risk. A number of these have already been referred to in this Judgment.
On 17 March 2013 the father sent an email (Exhibit K) to the ICL which contained the following:
Are you going to seek to have the matter relisted within 48 hours and do as you say for once or is this just another of your hollow promises that you say just to make yourself look like the big tough guy.
Me, I can simply not wait to get back in court – you and her have some rather un-explainable actions and out comes to begin explaining and believe me I am going to absolutely demand some answers now.
Be well advised – should you choose not to provide those answers or continue your stupidity as you have in the past – I am going to cause such shire utter hell they will speak of me for the next 100 years in the Family Law Court as the guy that finally held you all accountable.
(Emphasis added)
Unlike Dr D, I find this and the earlier emails referred to, to be intimidating and threatening of violence. Accordingly, I find that the risk identified by Dr D is greater than he identified in his reports.
In any event, I find that the risks identified in Dr W’s report are a more accurate identification of the conduct and behaviour than the identification of that behaviour by Dr D.
Dr D seemed to be too accepting of and justifying of the father’s behaviour.
Dr D had described the police incident as a one-off episode. In light of the history of this matter it clearly was not. There has been a long history of personality and depressive disorders and possibly psychiatric problems since well before the father’s back injury in 2006.
I take into account that Dr D was not fully aware of the nature of the hospital admission or the incident in the car and modified his opinion when learning of them, which brought him somewhat closer to Dr W’s opinion.
I also find that the correspondence of the father is much more violent, threatening and intimidating than Dr D would accept. That colours his opinion significantly.
Accordingly, for these reasons, I find that the views of Dr W should be accepted.
This means that the combination of drugs was not the sole cause of the police incident.
Ryan J found that, on the material before her, the father made violent, angry, denigrating and undermining threats particularly against the mother but also to others. I find that such behaviour has continued until today. Indeed, this judgment is replete with such examples, which constitute only part of the evidence before the court.
Shortly put, the assertion by the father that he does not have deeply troubling aspects to his behaviour including great anger and a fixed belief as to the evils of the mother is entirely rejected. I accept Dr W’s opinion that he has a paranoid personality disorder and that there is a real risk of highly dysfunctional behaviour in response to matters that do not go his way.
There being no persuasive medical evidence to the contrary that is the best statement of the father’s present psychological opinion.
Z Organisation Contact Centre
Supervised contact between the children and the father commenced at Z Organisation in early 2011.
The contact centre notes indicate that, on intake, the father told staff he would tell the ‘truth’ to his children if they asked him why supervised contact had to occur and would inform them that it was the fault of the mother. He was told that this would not be acceptable. The father also, according to the notes, advised that he would not be friendly to staff.
Supervised contact commenced on 11 February 2011 and went well. The father behaved appropriately and the children enjoyed seeing their father. The contact notes for 11 March 2011, 25 March 2011 and 8 April 2011 again showed that the children seemed to enjoy the supervised contact. The father questioned the children about school, homework and friends during that visit.
In contact visits in August 2011 the contact centre supervisors raised with the father the care he needed to take in raising inappropriate topics of conversation with the children.
In September 2011 the mother informed the contact centre that the Apprehended Domestic Violence order had been extended for the next twelve months and the children did not know anything of this. She also asked, as C was participating in confirmation that evening and neither she nor C wished the father to be there, that the staff ensure that the conversation on this topic be redirected.
The father says that during this visit V, when the topic of C’s confirmation came up, said to the other children ‘we’re not allowed to talk about this’.
After the visit, the father informed staff of his view that he could ask the children about whatever he wished and asserted that the contact centre was simply following the mother’s instructions. He insisted that the particular supervisor not be present for contact in the future otherwise ‘the deal is off’. According to the contact centre notes the father became angry, extremely frustrated and raised his voice.
On 30 September 2011 the manager of the contact centre contacted the children’s counsellor to advise her that V was expressing apparent anxiety levels during contact. The father had also apparently ‘poked’ C in the chest in a threatening manner during contact and told him that he would remind him of his disobedient behaviour at a later stage in the future by writing it up and placing it on the fridge.
In cross-examination, the father initially conceded that this was so but then asserted that he had merely tapped C on the shoulder.
On 4 October 2011 the contact centre advised the father they were suspending supervised contact until further notice because he had breached the service agreement. According to the file notes, specific issues raised were staff ‘redirecting the father on numerous occasions not to speak about future events such as the children coming home with him and the father feeling threatened and intimidated by these directions and arguing that he has a right to ask them’.
The father alleged that the contact centre was doing the mother’s bidding allowing her to denigrate the father to the children and psychologically damaging them via the service. The father was told that behaviour such as scowling, finger pointing and standing over people was deemed to be aggressive and in breach of the agreement with the centre. The centre then suspended the service.
It is the father’s case that he himself ceased attending supervised contact because, although the children had initially been happy to see him at supervised contact and enjoyed their visits, they had become increasingly more anxious and upset about the contact. The father squarely lays the blame for this at the feet of the mother who he says had been denigrating him to the children, restricting what they say and thus psychologically damaging them so that it was not in their best interests for visits to continue.
There is simply no evidence of this and the submission is rejected.
It is true, as was conceded by the mother, that she asked the contact centre and indeed the children not to discuss C’s confirmation with the father. The explanation she gave was that C had requested her not to do so because he did not want his father attending. According to the mother, on previous occasions when the father had attended church events it had been upsetting for both her and the children.
That, in the circumstances of this case, is a justifiable explanation for the remark that V made at the contact centre. There is no reason to think that the notes of the contact centre are anything other than accurate. Those notes reveal an increasing alarm by the contact centre staff about the father questioning children on inappropriate matters in breach of the contact centre agreement.
It is a recurring and unfortunate theme that the father seeks to blame anybody else for the consequences of his own actions.
Supervised contact has not resumed. Z Organisation refused to resume the service after the orders of Ryan J were made.
The mother approached G Contact Centre who would provide supervised contact at the cost of $284.00 per three hour visit. That offer was never taken up by the father. It is clear that, at that time and at all times since, he has had the financial means to do so. Although the ICL was somewhat critical of the mother for not doing more to take steps to facilitate the supervised contact, in the light of the father’s attitude, there is little more that she could do.
The failure of the children to spend time with their father at supervised contact since September 2011 is due to the actions of the father.
The pattern of conduct that existed before the orders of Ryan J has continued to exist since.
The children contacting the father
The children have sent a number of emails to the father. He relies upon them to show firstly that the children love him and are keen to see him.
The emails certainly say that.
The father also relies upon these emails to establish that the mother is continuing to denigrate him to the children.
L, in particular, has said things such as the following:
a)Hi Dad how are you go and see a doctor and the supervised visits NOW!! Because we all want to see you by march the … (you birthday) I love you (27 February 2012)
b)Please go and see the doctor and the supervised visits place ( 5 March 2012)
c)Dad please go and do the stuff u were told to do Love [L] (18 May 2012)
d)I really wish you would find a supervised visits so we can see you soon ( I want to see u by my 13th birthday) Love you Lots & Lots (letter of 5 June 2013).
In 2013 the mother wished to take the two elder children to Italy. The father initially readily signed the passport applications but then started asking a number of questions to which he thought he was not getting satisfactory replies. He indicated that he might approach the court to stop the trip.
On 23 May 2013 C wrote to the father saying ‘hey dad, how are you miss you lots herd (sic) some things from different people and just wondering why we aren’t allowed to go to Italy’.
The father relies upon the children’s knowledge of the orders and the reason for the trip not proceeding as evidence that the mother is denigrating the father to the children.
The children are and have always been aware of the orders of Justice Ryan because they were explained to them by the ICL. Accordingly, they know of the need for supervised visits and would obviously be painfully aware that they did not occur as ordered.
The mother said that she told the children that supervised contact did not occur because the father had behaved inappropriately. That is entirely correct.
There is no evidence that establishes that the mother has said derogatory things to the children and such cannot be inferred from the emails and letters sent by L.
The same can be said of the trip to Italy and C’s email. The mother warning the children that the planned trip may not be going ahead is not denigration.
It is clearly the father’s view that any discussion of such matters is to involve the children in the conflict between him and the mother and simply should not be allowed. Even if that is so, and I do not find that it is, that is not denigration. There is no evidence that establishes that the mother has denigrated the children to the father at any time.
The vehemence of the father’s belief that that is so is, however, telling.
In relation to C’s email the father wrote to the mother on 26 May 2013. That letter was also copied to my Associate, the ICL, the mother’s previous lawyer, a family friend Ms LL and the father’s sister and her husband. On many occasions, despite requests that he not do so, the father sent many emails to my Associate or included her as a recipient in emails being sent to other people. Those emails were not read by me.
The email said in part, referring to the trip to Italy and C’s email to the father:
I have also been recently made aware, in writing, that you are using this matter as a means to denigrate me to my children.
The general nature of that notification to me was along the lines that the children are being told that I am preventing them for leaving the country and as such inferred upon them by your actions [the mother’s given name] is the thought that “see kids I told you he’s a bastard that hates you all, he’s even tried to stop you going on holiday”.
Now I for one, find it highly concerning that you seek to destroy or damage my relationship with my children by such idiocy and I strongly advise you to cease all such things …
But this – even for you – even by your gutter standards – is simply sheer utter stupidity, it is repugnant, it is repulsive and it is highly inappropriate behaviour on your part in which you are harming our children by engaging in such practices.
(As per original)
It is important to understand that when asked, the mother promptly advised the father of the date of departure and return of the children, the person with whom she was staying, the mobile phone number on which she could be contacted in the case of an emergency and that O and V would be cared for by her mother.
This did not satisfy the father who sought very much more information. This included the names of all adults travelling with the children or with whom they would be staying. He sought details of the travel routes that the mother would be taking including flight numbers and details of all travel companies involved. He sought details of all the adults who would be residing with O and V whilst the mother was out of the country, who the decision maker was for them in the event of an emergency and asking upon what authority would that decision maker act.
Whilst the father regarded them as reasonable requests I do not consider that they were. Given the threats to try and stop the children from going overseas made by the father it was prudent for the mother to inform the children that they may not be going.
Because the father did not get what he wanted he behaved in an abusive and over-reactive manner.
The father’s communication with the children
Since the orders of Ryan J were made the father has contacted the children on a number of occasions in breach of her Honour’s orders.
Indeed, the father asserts that notwithstanding the order, he as their father, is entitled to do so. In court he forcefully announced that he would continue to do so even if such order was continued and that ‘you had all just better get used to it’, or words to that effect.
The content of some of these emails would have been unremarkable and appropriate had there been no order preventing such contact. However, the content of some was not.
On 11 February 2013 the father sent the following email (Annexure ‘AO’ of the mother’s affidavit affirmed 29 July 2013) to L:
Hi [L],
Hope you enjoyed your new book and that you got your phone sorted out.
Any problems just text me or phone me and I will sort it out.
Hope your doing OK darling.
Love you to bits and miss you more than you could possibly imagine
Don’t ever forget I’m doing everything I can to get you home.
And just for the record I’m not sick or any other rubbish their telling you. I recovered from that illness over 2 years ago
I hope you do know that you are free to contact me at any time that you wish including phoning me, texting me, emailing me or even just getting on a bus to come visit me if you would like
There are no court orders or laws of any nature that say you cant do that – despite what mum may say – your free to come home at any time you wish and know you wont get into trouble.
I’m not sure if the ICL told you (Mike Davies) but I had court orders put in place that would have enabled you all to come home in the middle of last year (2012) but mum point blank refused to comply with those orders.
But despite her refusal to obey orders and no matter what she does or says – some way, some how I will get you all home and then we can get on with just being a normal family – that much I promise you.
Big hugs to you and all the others.
Chin up darling it will come to an end.
(As per original)
There are a number of difficulties with this email.
Firstly there is a reference to ‘home’ being with the father and returning to ‘just being a normal family’.
The Family Consultant said that home is where the children now are. It is their present home - the place where they are nurtured.
This, and similar comments by the father, caused her great concern. The Family Consultant said that it shows a lack of insight into the children’s needs in saying that their present place of residence is not capable of being a home.
That evidence is accepted. Such statements undermine and denigrate the mother’s role in the children’s lives. They do not respect the likelihood that the children would regard where they live as their home.
Telling L that he was not sick and that people are telling them ‘rubbish’ is directly to involve the children in the conflict and to attempt to make the children choose between versions of events that have been given by parents.
The invitation to simply get on a bus and visit him is not only in breach of the order for contacting the children but would involve, if L accepted the invitation, the father spending time with L outside the manner in which the court had already determined it was in the best interests of L. It is simply to ignore the findings of the court that such contact is not in L’s best interests and dismiss it. If L had complied with the request there would have been a serious breach of the court’s orders.
Should there be any doubt, the suggestion to L that there are no court orders or laws of any nature that say you cannot do that and that she was free to come home any time she wished was entirely wrong and inappropriate.
Had L acted upon those suggestions it would have put her in a difficult and awkward position when she were returned to her mother’s care. It would be most unfair and upsetting to her for her to have been put in that position.
The suggestion that there were orders made for the children to come home but that the mother ‘point blank refused’ to comply with those orders is simply wrong. It is dismissive and denigrating of the mother and is seeking to undermine her relationship with the children.
The Family Consultant said of the breaching of Order 7 by the sending of this email that of itself raised concern that showed the father was immature and lacked insight into the children’s needs and behaviour.
On 13 March 2013 the father sent an email to C saying:
You do realise don’t you that you can contact me, email me, phone or text me or even visit me whenever you want to and there are no orders or laws that say you or any of the others cannot despite what mum and the others may say … chin up mate, we will be together again – promise’
The same findings made in relation to the email to L are made about the similar paragraph in the email to C.
On 8 April 2013 the father sent an email (Annexure ‘AO’ of the mother’s affidavit affirmed 29 July 2013) to C which contained the following:
...
[C] please do me a favour – Ring [Ms LL] [number omitted] and arrange for [V] go get her birthday present even if you have to go get it yourself – because for whatever reason – and I for one cannot grasp it – but Mum is refusing to allow [V] to get her birthday present and that is simple not fair on [V] – So do something to help her out [C].
It is now getting to a point [C] – that the only way this is to be sorted out is when you kids take matters into your own hands - get on a bus and simply come home and regardless of what they may say – no law, no Judge or any other such thing can stop you from doing just that.
On the 14 April 2013 the father had sent the following email (Annexure ‘AO’ of the mother’s affidavit affirmed 29 July 2013) to C:
As of 29 April 2013 I’m entitled to attend all your sports & school events and there is nothing Mum can do to stop that but sadly I’m sure she will try
Anyway as a result – could you please send me an outline of when and where your sports events are including weekends so I can attend
Can you also obtain the same from [L], [O] & [V] so I can attend their sports and school events as well.
I know it doesn’t equal coming home but at least its something.
And I know it’s simply disgraceful but until such time as Mum grows up and stops being so destructive to us all – any more than that and you kids are going to have to take charge, get on a bus and come home on your own. And the sooner you do that the sooner this will end.
(As per original)
Again, the same findings are made about that email.
In addition to the completely inappropriate suggestions to C to simply return to the father and the denigration of the mother there are two other issues that arise from these emails.
The first is C did not, as requested, send the father details of where his sporting events were held so that the father could attend. He did not send those of L, O or V. This is consistent with the mother’s evidence that the children told her that they did not want the father attending their sporting events.
Secondly, neither L nor C took up the requests to telephone the father, visit him on a bus or move to live with him. Thus, their desire to see their father is such that it did not extend, at least as far as C was concerned, to providing the father with details of his sporting events so the father could attend or in the case of L and C either telephoning the father or coming to visit with him, let alone going to live with him.
Communication with the mother & the independent children’s lawyer
As is apparent in this Judgment, and that of Ryan J, the father has written and continues to write abusive, insulting and derogatory letters to both the mother and the ICL. He has no hesitation in distributing copies of that communication to others. His letters are threatening and bullying.
For example in an email sent to the ICL on 27 February 2013 (Annexure ‘A’ of the ICL’s affidavit affirmed 11 March 2013) in relation to a complaint about the counsel engaged by the ICL, the father said:
Well my response to that lame attempt to threaten and intimidate me is simple this – should you Mr Jackson ever again present himself in a court with regard to this matter, any court at all, - then I will simply walk out – and on this point I am not negotiable – period. So should you wish to proceed ICL – this is an issue that needs resolving.
(As per original)
In that same letter the father said of the mother:
The very thing she fears with such paranoid, delusional and irrational force will come about as a direct result of her very own actions or lack thereof.
(As per original)
In a letter dated 10 March 2013 (Annexure ‘D’ of the ICL’s affidavit affirmed 11 March 2013), informing the ICL that the father would not under any circumstances participate in any proceedings where Dr W single expert appointed to the court was involved said of Dr W:
He is inaccurate, fails to understand the true nature of what has occurred and has put more time telling me how important he was than actually engaging in the process…
He is a self-important, poppas, incompetent, overcharging arse and I will not engage in such stupidity ever again as for paying for the pleasure of the company – NO I WILL NOT.
(As per original).
In that same letter the father described the conduct of the counsel for the ICL as highly deplorable and highly improper.
In an email dated 15 February 2013 (Annexure ‘AZ’ of the mother’s affidavit sworn 29 July 2013) and also sent to the ICL and relatives of the mother the father said:
You see [the mother’s given name], this is just a rather fine example of you and how you act – you make assumptions without working on facts, you generalise and you try to belittle people with your high and mighty attitude – sad for you I know – but you will find that it know longer works on me just as it doesn’t on a vast number of persons in the Wollongong area who all now know what you’re like and do so because of your disgraceful actions in relation to our children and rather sadly that collection of persons is now growing by the day.
Your reputation is now simply in tatters and unless you and you alone begin to act in a manner that allows your reputation to be rebuilt – it will simply get worse …
You are so morally bankrupt, you have absolutely nil ethics and you have less than zero credibility – and yet you now complain about me emailing my children
(As per original)
Also in that same email the father under the heading of giving the mother a few ‘facts of life’ said:
·Simple fact – I intend to continue to correspond with my children – all of them – as I will continue to do so for the rest of their lives despite what you or anyone else may say – your view upon that is now of no consequence or value to me or the kids – on this subject we collectively, me & the kids, don’t give a dam as to what you say or think – don’t like that then the only way you will stop me is to jail me and even then I will find a way to correspond with MY children. Nothing you can say or do will prevent that ever again – on this aspect your day of domination is now over.
(As per original)
The father’s abuse is not limited to emails.
In his affidavit relied upon in these proceedings the father said:
183.The mother during this period engaged in deliberate emotional and psychological abuse of the father.
184.As a result of this emotional and psychological abuse by the mother upon the father and sustained horrific chronic pain suffered by the father the father fell ill and on 10 December 2009 was diagnosed with sever agitated major depression by Dr [M].
(As per original).
There is no suggestion anywhere in the medical evidence that any emotional and psychological abuse by the mother upon the father contributed to his psychological state in 2009. Ryan J specifically found that the mother did not engage in such conduct.
The mother was employed by a company. At some time it became deregistered under the Corporations Act 2001 (Cth) (‘the Corporations Act’). There is no evidence to suggest that the mother was a director of the company or responsible for its deregistration. Notwithstanding, the father said in his affidavit:
2011.The mother’s activities as a representative of [Company H], a deregistered company under the meaning of the Corporations Act 2001, this further evidence of her willingness to ignore the law whenever it suits her needs, her willingness to undertake illegal activities, her ongoing willingness to lie and engage in false and misleading activities and as such the mother ought to be referred by the Court, as it is duty bound to do, to the DPP for offences under the Corporations Act 2001.
The father sought the following orders against the mother:
That the mother be referred to the DPP for investigation with regards to matters of perjury and providing false and misleading evidence to the Court.
It is not an offence under the Corporations Act to be employed by a company that is not registered.
In the father’s affidavit he accused the mother of playing ‘the poor little battered woman’s card’. The Family Consultant said of this ‘this appears to indicate that [the father] does not accept that his behaviour has been psychological abusive nor that it is reasonable that [the mother] may be concerned for herself and for the children’s wellbeing given all that has transpired’.
In support of his views the father relied on the police record of the mother seeking an Apprehended Domestic Violence Order against him on 11 December 2012 which the police declined to pursue. Recorded in the police record is the following:
The PR provided police with various items of correspondence from the Person Named, all of which related to family law proceedings and contained no threats. Most of these emails and text messages had been forwarded to the PR by her solicitor and not sent directly to the PR. Police were informed by the PR that she did not hold fears for her safety as a result of the PN’s correspondence and conceded she did not feel threatened but rather frustrated as the family law court matter continued to be drawn out. Police have obtained a copy of the previously mentioned family law court orders which have been case filed and attached to this event. Police are of the opinion that the PR is attempting to bolster her case in family law court by reporting this matter and sighted extensive correspondence and trivial recordings between the two parties in a large bound folder.
I do not know what was placed before the police. The proposition that the matters raised were trivial cannot therefore be either tested or supported. The opinion of the police officer thus carries little weight.
The mother said the correspondence made her tired and angry, ‘I raise a short point with the father and get a barrage back’.
The mother has seen three psychologists in the last three years. She consulted a psychologist last year in order to deal with the anxiety arising out of this court case. The mother said she became short with the children and the anxiety makes it hard to get through the day.
When asked to comment on the father’s proposal that the children spend time with him and that that would end the conflict (some time per fortnight) the mother said that in her view it was not in the children’s best interest for them to be exposed to the father. She said he has no hesitation in expressing his views about me to anyone at all including the children.
The evidence demonstrates that that is in fact the position. The father continues to denigrate and abuse the mother to the children, her relatives and her friends.
This is having an adverse effect upon the children because it affects them directly. It also increases the stress and anxiety of their mother who is their carer, thus again subjecting the children to anxiety and stress. It also affects the relationship between the children and their mother.
The father’s communication is bullying and threatening. He reacts adversely and in an extreme manner when he does not get his own way. Whenever something goes wrong, as he sees it, it is everyone else’s fault but his.
the website incident
In May 2012 the school that L was attending had a visit from the Life Education Centre. When she mentioned this to her aunt, her aunt mentioned a website called ‘Rate My Poo’. In the presence of the mother, L accessed the site. The mother did not think the site desirable and closed the site down.
On 19 May L sent her father an email saying ‘Aunty [Q] showed me Rate your Poo’.
There is evidence which I have accepted which indicates the litigation is taking a toll on the mother and affecting her parenting abilities.
The effect of litigation on the children must be taken into account. The children are aware of it. They, of course have had the orders of Ryan J explained to them by ICL. They are concerned as to why supervised time has not occurred. On many occasions the father has told C and L that they will be ‘home soon’. Their expectations each time have not been met. They may well again be aware of this litigation. They are constantly being introduced into the conflict and reminded of it in a way that is not helpful to their best interests.
Accordingly, even although the court has heard all of the evidence that would be taken into account of the re-hearing of the parenting issues, it is not satisfied that there should be such reconsideration.
If I am wrong about that, and in any event, I would not alter the orders that are presently in place for the reasons that follow.
The best interests of the children are to be determined by having regard to the matters set out in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’).
Section 60CC was amended with effect from 7 June 2012. The transitional provisions provided that the amendments apply to proceedings instituted on or after that date. (Clause 47(2) of Schedule 1 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)).
The proceeding heard by Ryan J have been completed save for the determination of the remitted issue about the children’s time with the father. The father’s application for a reconsideration of all parenting issues was made after the amendments to s 60CC took effect. They constitute a new proceeding and are thus governed by the present form of that section. However, on the facts of this case, the same result would be achieved on the application of the section in its earlier form.
There are two primary considerations as provided for by s 60CC.
The first is the benefit to the children of having a meaningful relationship with both parents. In the present case it is clear that the children have a close and meaningful relationship with their mother with whom they reside. Whilst there have been difficulties in their relationship in the past, particularly with L, present relationships with each of the children seems to be close, loving and of benefit to them.
The children have no real relationship with their father at the moment. The children would benefit from a meaningful relationship with their father. They have in the past frequently expressed their love for him and their desire to see him.
The consideration is, however, not a relationship with the father but a meaningful relationship with the father. It is difficult for such a relationship to be meaningful when the father involves the children in the conflict between him and the mother by directly raising the conflict with them and by denigrating the mother to them.
That being said a meaningful relationship between the children and the father would be desirable. How best is that to be achieved?
Ryan J took the view that that was best achieved by a stepped process of time spent with the father commencing with relatively short periods of supervised time graduating to extended unsupervised time. That still remains the desirable course, if it were to work. For it to work it must first be undertaken.
For reasons given earlier, it is much more likely than not the same difficulties and conflict between the parties and the views of the father will bring attempts to engage in supervised time undone. The father has an implacable belief that the mother is doing what she can to undermine his relationship with the children. It was this that led him to ceasing to attend the contact centre.
It is more likely than not that the father would not attend supervised time for that reason, or that if he does the same difficulties will emerge as previously emerged.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to or opposed to abuse, neglect or family violence.
This is the formulation that currently appears in the Act. It applies because the application by the father to reconsider all of the parenting orders was made in February 2013 after this section came into force.
There is a low risk of physical harm to the children at the hands of the father. There is evidence that he has poked C in the chest at the contact centre. The risk is low but it will be higher if the father suffers a recurrence of his depressive illness.
More importantly, in this case there is a real risk of physiological harm to the children from being exposed to abuse of either themselves or their mother.
I have already referred to the emotional and psychological harm that the children could suffer if exposed to the father. This is evident from the emails he has sent to the children which belittle their relationship with their mother and their home with her and the raising with them of the imminent prospect of spending time with him, his failure to attend supervised contact, his pressuring of L to give information to him and his view that he would not discuss with the children the reason why changes would be made to their living arrangements (if the court made such a change). Most importantly, it is likely that the children will become well aware of the father’s view of the mother.
The evidence establishes that the emotional abuse of the mother by the father adversely affects the mother’s parenting ability. As I have found, the continued proceedings and the barrage of abuse form the father causes her to become stressed, short and difficult with the children. She has consulted psychologists to assist her with those issues.
This consideration militates against the father having significant periods of time with the children.
There are a number of other additional considerations which must be taken into account.
Any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views
The views of the children have already been discussed as has the weight that must be given to them.
The elder children expressed the view that they could spend up to fifty per cent of the time with their father. That does not support the order sought by the father where the children live with him and spend some two days per fortnight with the mother.
The views of the younger children are that they would like to see their father. As has been said already, these views of all of the children are conditioned upon them not having seen their father for some time and are not aware of what it would be like to spend time or significant time with him.
The views of the children would support making an order where they remain living with the mother but spend some time with the father.
The nature of the relationship of the children with each of the parents has been discussed. The children have a close relationship with their maternal grandmother, their maternal aunts and relatives of the maternal side. They have and have not ever had any significant relationship with any paternal relative.
This factor supports the children remaining to live with the mother.
The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children; to spend time with the children; and to communicate with the children
Due to the orders that are in place the father cannot participate in decisions about major long term issues in relation to the children. His actions have led to the suspension of supervised time and it is as a result of his actions that the children are not spending significant time with him at present. He has communicated inappropriately with the children in breach of orders.
His conduct caused the supervised time to cease and he was responsible for it not re-commencing.
There is no doubt that the father wishes to participate in the decision making about the children. Such participation would only exacerbate the conflict between the parents and would not be in the children’s best interests.
This factor does not support the orders sought by the father.
The extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children
Until 2013 the children were entirely supported by the mother. In 2013 the father made payments of $5 000 some dollars, less than $100 per week towards the payment of the school fees of L and C. His income is some $1 600.00 gross per week. The mother has, generally speaking, fully supported the children and the children’s father has done little to do so.
The fact that the father has not provided other financial support did not stop him from being very critical of the mother’s accommodation.
That, however, is not a factor to which significant weight should be attached.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children, particularly the two younger children, are likely to feel upset and bewildered if they were suddenly to be moved from their mother’s care to their father’s care. The two younger children would find such a move to be frightening. O has said that he would be scared. This is not surprising given since he has not seen his father for some time. Such a sudden change would not be beneficial.
In relation to the father’s proposal that the children live with him the Family Consultant said:
104.…The children are settled, the current living environment is a known quantity and the children are currently receiving ‘good enough’ care. It would not be in the children’s best interests to destabilise them at this point in time.
The change proposed by the father would be a major upheaval in the children’s lives. The stability which they presently enjoy is not longstanding. There should not be another major change unless there is a clear and positive benefit to them in such a change.
It is likely that if the children were to live with the father they would continue to be exposed to conflict and to further denigration of their mother because of the continued contact between the parents.
Further, it is likely that if the children were to live with the father, given his hostile attitude to the maternal grandmother and other relatives of the mother, the father would discourage contact with them. They have a close relationship with all of them. It is in their interests that such contact continue.
There is no practical difficulty or expense associated with the children either living with or spending time with the father.
The capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
The children are doing well in the care of the mother or ‘well enough’ in the words of the Family Consultant. They presently seem relatively happy, well-adjusted and, by and large, doing adequately at school.
The Family Consultant said of the father in her report:
103.…Dr [W] raised concerns about how [the father] might manage behaviour of an adolescent. [The father] does not appear to be a man who is particularly flexible when it comes to his views, and how he might manage as the parent of teenagers is unknown.
104.…The potential for conflict between [the father] and the older children is high given their stages of development, their propensity to test the limits of authority and [the fahter’s] rigid views and approach to what he sees as right and wrong.
This is reinforced by the father’s approach to the children (and everyone for that matter) which seems to be most dogmatic.
As an example I refer to how he said he would explain any change in living circumstances to C. He said he would tell him it is not a matter for discussion. This is hardly a way to approach a significant change in the life of a person of C’s age and maturity and someone described by the father as ‘a young adult’.
A matter of concern is that in the orders proposed by the father he proposed that the children live with him and spend two days per fortnight with the mother.
He presently works a forty hour week but that involves him travelling, at least at the present, on occasions to the Southern Tablelands of NSW and to the Australian Capital Territory. The father said that on those occasions, however, he would be travelling for the purpose of meetings that would last an hour to an hour and a half. Even so, it is obvious that he will not be able to be present when the children leave for school and arrive home from school. This is a particular concern in relation to the younger children.
No evidence was volunteered by the father as to how he would deal with that issue. When asked how he would manage to care for the children, he proffered a number of possibilities. He said that there were grannies for hire to assist people such as me, there are friends who have said they would assist, there was a possibility of a live-in carer. He said there was nothing definite yet ‘but it’s hard to know what to do when you don’t know what is going to happen’.
The father seeks an order that would have the children living with him immediately upon the orders being made.
Thus, whilst it is entirely appropriate that he has not made binding arrangements for their care, given that he does not know what the outcome of the case may be or when the orders might be made. It is, however, of concern that he seems not to have considered these issues with enough focus and clarity to be able to put forward a concrete proposal. For example, the suitability and availability of proposed helpers are unknown and unexplored. Also unexplored is how the children would react to these people.
It reflects poorly on the capacity of the father to provide for the needs of the children that he has not thought this difficulty through and seriously worked out how it would work and put a practical proposal to the court for its consideration.
The communication with the children discussed earlier demonstrates that the father lacks the capacity to provide for the emotional needs of the children. Ryan J described the father in making the constant promises to the children that they would be ‘home’ soon put them through an emotional roller coaster.
The conduct of the father since that Judgment has continued the roller coaster ride for the children. This reflects all the more poorly on the father’s parenting abilities because he has continued that conduct in the clear face of the Reasons for Judgment of Ryan J.
When asked, in the event the order sought were made, how he would explain to C the change in his living arrangements and the reasons for those changes he said that he would not explain the reasons. The father said he would tell C that it was a different regime but if you want to see your mum do it. If C asked why the father said that he would say to C that it is not up for discussion. He denied that this would be keeping C in the dark saying that it would be a better set of circumstances and he would encourage C to engage with the mother and her relatives. He reiterated that the past would be a closed door.
This confirms the Family Consultant’s evidence the father lacks insight into the children’s best interests.
Another example is the father referring to the children coming to live with him as returning home, entirely disregarding that the children presently have a home.
The Family Consultant described him as rigid – the evidence attests to that. This she opined will lead to problems with the children as they grow older. Quite simply, she said children need to win sometimes and she did not think that would occur if they were living with the father.
She said that the father had a lot to offer the children if he could behave properly and not undermine the mother.
That, sadly, is not going to occur.
This factor strongly supports the children living with the mother and the mother having sole parental responsibility.
The same findings are made of the parents in relation to their attitude to the children and the responsibilities of parenthood as demonstrated by them.
There was no evidence of family violence by either of the parents after the orders of Ryan J were made.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The unfortunate reality of this matter is that there are likely to be further proceedings between the parties if there is any order for shared time. Since 2011 they have been in two contested parenting proceedings one lasting six days and one lasting five days, two contested contravention applications, one interim parenting application and two appeals. Each has been brought by the father.
Dr W opined that the father will not stop until he gets what he wants. That is an appropriate summary. He has repeatedly said he will not give up. He genuinely believes that only his approach is in the best interests of the children and if the orders he seeks are made all the present difficulties will disappear.
The father does not accept anything that is not in accordance with the view even if it is a finding of the court.
Notwithstanding the findings of Rees J, affirmed on appeal, the father still persists with the view that the mother is breaching the orders by failing to deliver the children to him in accordance with what he says is his entitlements under the orders of Ryan J.
If the father does not get what he wants he will blame others. He believes, for example, that he has a right to communicate with his children despite there being an express order to the contrary.
For all these reasons, if I were considering this issue afresh, the orders should be that the mother have sole parental responsibility for the children and that they live with her.
In doing so, I bear in mind the provisions of s 61DA of the Act. It provides that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for there to be equal shared parental responsibility.
The above evidence comfortably satisfies me that it not in the children’s best interests for there to be equal shared parental responsibility.
There is no prospect of the parents cooperating to any degree at all, let alone any prospect of beneficially managing the lives of four children.
The father may genuinely believe that if orders are made as sought by him he will make things right. This includes, it seems, a view that the mother will freely cooperate with the father in that circumstance.
Examples of the abuse hurled at the mother by the father litter this judgment. I cannot see, in the light of that correspondence, how it is likely that the mother will easily forget this and freely cooperate with the father as envisaged by him.
The parenting capacity of the father and his attitude towards parenting as discussed above strongly point against equal shared parental responsibility.
Simply put, joint shared parental responsibility will escalate the opportunity for conflict between the parties which will be most adverse to the children.
Their best interests are served by the mother having sole parental responsibility.
Time to be spent with the father
As I have found that it is not in the best interests of the children for there to be a reconsideration of the parenting orders the only matter that remains is the consideration of the time that the children should spend with the father. This is the issue that was remitted by the Full Court.
This issue is the last remaining issue of the proceedings that were commenced prior to 7 June 2012. Thus, oddly, it needs to be considered under the terms of the section prior to its amendment in 2012. Again, in the circumstances of this case, a consideration under either version of the section will lead to the same result.
The significant substantive change was to s 60CC(3)(c). In its earlier form, i.e. prior to the 2012 amendment, it provided:
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
The material discussed earlier establishes, contrary to the father’s assurances, that he will be most unlikely to facilitate any relationship between the children and their mother, given that he criticises almost every aspect of her care of the children in most stringent terms.
The mother proposes an order that the children spend time with the father under supervision until they turn 18 years of age. Even for C and L that would involve supervision in excess of four years. For the younger children the proposed order would require supervision for ten years.
Supervision for extended periods is generally not desirable.
It would be difficult to find an appropriate agency or person to conduct the supervision.
The father has clearly stated he will not spend supervised time with the children under any circumstances. During the hearing he did express views that were not as absolute.
I am of the view that supervised time will simply not work as a practical arrangement. It requires a degree of co-operation and commitment to the process that the parents and, in particular the father, simply cannot bring to bear. The father’s accusations of the mother in relation to the contact at Z Organisation and his allegations to Z Organisation itself were not borne out. His accusations were severe and carried on at great length. There is every reason to think that will be the same in relation to the period of supervised time.
Supervised time has now been attempted on two occasions. It has failed each time. It is not in the children’s best interests to put them through that disappointment again.
For all these reasons then extended supervised time is not an appropriate arrangement and orders for supervised time as sought by the mother will not be made.
Supervised time could be used as a progression to unsupervised time.
The Family Consultant was of the view that the older children did not need a period of transition to unsupervised time – if it was considered appropriate she saw no reason why it should not start immediately. For the younger children she thought that a period of transition would be desirable.
Such steps should be taken if it is desirable to proceed to unsupervised time.
The choice is then between either there being no contact between the children and the father or unsupervised contact, commencing either immediately or after a short period of supervised time.
The real reason for supervision is to protect the children from psychological and emotional harm when in the presence with the father by removing the opportunity for him to engage in inappropriate behaviour in which he previously engaged and in which he continues to engage.
There is no doubt that if given unsupervised time with the children the father will denigrate the mother, abuse the mother in the children’s presence and bring them entirely into the conflict between the parties.
A short period of supervised time is unlikely to change this behaviour. There is no evidence that it would.
This emotional and psychological abuse of the children is likely to occur if this order is made and it is a powerful reason for not making such an order.
Further, unsupervised time is likely to lead to further conflict between the parties, which will not be in the best interests of the children. The mother will also be stressed which will adversely affect her relationship with the children as has happened in the past. The conflict is severe. Any contact between the parents will provide fuel to the father to maintain his rage against the mother.
The father said repeatedly that his actions in seeking the care of the children because such an order would, he says, preserve the relationship between the children and their mother. If they remain with their mother he says that her actions will lead to them effectively returning to live voluntarily with him when they are able to do so and will then effectively disown the mother.
This submission sits uncomfortably with his views of the mother referred to in this judgment. If she is as the father asserts, not only would it scarcely be in the best interests of the children to have the mother as their primary carer and any contact could be deleterious to them.
The children in their mother’s care are, despite some severely stressful events in their lives, including the police incident, seem to be relatively happy, well-adjusted and doing adequately at school.
The reality of the father’s submission is, simply, that all will be well if he has sole parental responsibility and the primary care of the children. That is, if he gets his way.
I do not see how that follows.
I do see, however, that if the father gets anything less than his way, he will continue to be severely critical of the mother. The only way to reduce that is to make no provision for the children to spend time with him.
Further litigation is not in the interests of the parties because the children will be aware of it, it will adversely affect them. They will worry about and it will be stressful. Further litigation will worry and stress their mother, adversely affecting her parenting ability. In this case, given the litigation over the last three years, that is a significant factor to take into account.
Whilst the father was of the view that this would be devastating for the children not to see him the reality is they are resigned to not seeing their father. Whilst the two older children do wish to see their father they are now more ambivalent about it than they were in 2011. If an order is made that there be no contact until the children are 18 it will be just over 3 years before C will be able to see his father, if he chooses, and just over four years for L.
The time that the younger children will not see their father will, of course, be much longer but then they have spent most of their lives living with their mother and have much less of a conception of what it is like to live with their father.
For the children to have no contact with their father is the course that is least likely to lead to further litigation between the parties.
It is also the course that is most likely to reduce the conflict between the parties. The conflict between the parties arises out of any arrangement which affords the father the opportunity to abuse, harass or insult the mother. As has already been found that conduct is not in the best interests of the children.
The Family Consultant opined in her report:
108.If the Court is of the view that the children would not be safe, either physically or emotionally in spending time with [the father], then they should not spend any time with him at all. If this is the case, there should also be no contact by telephone, email, or any other form of communication until the children are at least 16 years old. The communication between the children and [the father] over the past three years has promoted ongoing conflict between [the father] and [the mother] and ensured their ongoing exposure to the conflict, albeit to a much lesser degree than in the past.
That opinion is accepted.
I have already found that the children will not be emotionally safe spending time with the father.
The children, not having seen the father for over two and a half years are doing well enough, are happy and stable.
I have considered whether the children should be able to decide whether to spend time with the father when they turn sixteen. It might be said that children of that age should, or are likely to, make their own arrangements about seeing their parents.
I have decided that the order should be to prevent contact until the children become adults. At sixteen they will still be children, most likely still at school. If they do not seek out their father immediately upon turning sixteen, whether to live with him or just to spend time with him, it is likely that they will come under pressure from the father to do as he wishes. As has been seen the father asserts his views and wishes most forcefully. It is not in the children’s interests to be exposed to such pressure.
Further, if the children do as the father hopes it is very likely that he would commence fresh proceedings seeking orders that the children over sixteen either live with him or spend time. Thus, in the interests of minimising the risks of further litigation, it is appropriate that the orders preventing contact with the father subsist until the children turn eighteen.
It follows that, in the circumstances, it is in the best interests of the children that they spend no time with the father and that the father be restrained from contacting the children by telephone, email or any other form until the children each attain the age of 18 years and that the father be restrained from contacting the mother in any manner whatsoever.
The father did not become aware of the ICL’s proposal that there be no contact between him and the children until final addresses. He had prepared his final address on the basis of the proposals then outstanding.
The making of such an order had been canvassed in the Family Consultant’s final report. In cross-examination by the father he asked the Family Consultant how L would suffer if there was no contact with him.
The father had repeatedly said that he would never attend supervised contact. This means that the orders sought by the mother effectively meant no contact. The father did modify this stance during the hearing.
The thrust of the father’s submissions, were in any event, that he have sole parental responsibility and that the children live with him.
The issue of no contact was, therefore, a live issue in the proceedings prior to submissions. The submissions of the father covered the issues including those related to a no contact order, albeit not directly addressed to that order.
Accordingly, I make orders as set out at the commencement of my reasons.
I certify that the preceding four hundred and eighty one (481) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 June 2014.
Associate:
Date: 27 June 2014
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Family Law
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Res Judicata
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Injunction
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