Cameron and Allard
[2016] FCCA 22
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMERON & ALLARD | [2016] FCCA 22 |
| Catchwords: FAMILY LAW – Parenting orders – where father suffers from mental illness – whether risk of harm if children’s time unsupervised – expert psychiatric evidence – weight issues – where the father may not be accurately presenting the facts to his treating doctors – where father became obsessed with the litigation – whether the father is at risk of murder/suicide – where supervised time ordered. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60I, 61DA, 65DAA Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg.25(2) |
| MRR v GR [2010] HCA 4 Rastall & Ball & Ors [2010] FMCAfam 1290 |
| Applicant: | MS CAMERON |
| Respondent: | MR ALLARD |
| File Number: | SYC 2612 of 2010 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 16 December 2015 |
| Date of Last Submission: | 18 December 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Lukes Law |
ORDERS
That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for the Children, X born (omitted) 2000 (“X”), Y born (omitted) 2005 (“Y”) and Z born (omitted) 2007 (“Z”)
That the Children live with the Mother.
That the Child X spend time with his father in accordance with the Child's express wishes.
That the Children Y and Z spend supervised time with the Father as follows:
(a)From 11:00am until 6:00pm each alternate Saturday;
(b)On Father's Day from 10:00 am until 4:00pm each year;
(c)From 1:00 pm until 4:00 pm on Christmas Day each year;
(d)At other times as agreed between the parties.
and for the purpose of Order 5 above, such time is to be supervised by the paternal grandparents MS B and MR A, or such other agreed supervisor, and time take place at the residence of the paternal grandparents or such other venue as agreed with the Mother.
That for the purpose of changeover the parents will meet at the paternal grandparent's home for the return and collection of the Children.
That the Father undertake an Anger Management Course within 3 months of these Orders and provide to the solicitor for the Mother and the Independent Children's Lawyer evidence of attendance and completion of the course.
That the Father engage in Dialectical Behavioural Therapy Treatment with a suitably qualified psychologist and/or psychiatrist for a period of 24 months or longer as recommended by his treating psychiatrist to address his emotional regulation difficulties and the impact on his behaviour of his diagnosis of Borderline Personality Disorder.
That the Father engage and complete a Post Separation Parenting Course within 6 months of these Orders and provide written evidence of satisfactory completion to the solicitor for the Mother and the Independent Children's Lawyer.
That the paternal grandparents (and any other supervisor who is undertaking supervision for the purpose of Order 5) sign Undertakings in a form prepared by the Independent Children’s Lawyer detailing the nature of their supervision and circumstances of suspension of the Father's time.
That the Father be restrained from consuming any alcohol during periods of time he spends with the Children and for a period of 12 hours before such time is scheduled to commence with the Children.
That the Father be restrained from consuming or being under the influence or any illegal drugs during any time that the Children are in his care or for the preceding twelve hours, and shall immediately removing the Children from the presence of any other person who is under the influence of illegal drugs.
That both parents are restrained from denigrating the other parent or denigrating these proceedings in the presence or hearing of the Children or in a manner which causes it to be brought to the Children's attention.
That if the Father relapses into the use of alcohol and as a consequence places the children at significant risk of harm then all time between him and the Children be suspended pending the provision of a psychiatric report from his treating psychiatrist that outlines that the psychiatrist has formed the opinion that the Father is stable and no longer poses a significant risk of harm to the children.
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:
(a)any medical problems or illness suffered by the Children, whilst in the care of the Father;
(b)any medication that has been prescribed for the children;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)any social, school or religious functions which the children is to attend;
(e)the residential address of the Father;
(f)the telephone contact number of the Father;
(g)any other matter relevant to the welfare of the children.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:
(a)any serious medical problems or serious illness suffered by the children, whilst in the care of the Mother;
(b)any medication that has been prescribed for the Children;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)the residential address of the Mother;
(e)the telephone contact number of the Mother.
That within 7 days the Independent Children’s Lawyer provide to the paternal grandparents a copy of these reasons for judgment, the report by Dr C and the report by Dr S and, if requested by them, meet with them to discuss these reasons for judgment.
IT IS NOTED that publication of this judgment under the pseudonym Cameron & Allard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 2612 of 2010
| MS CAMERON |
Applicant
And
| MR ALLARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about three children: X, born (omitted) 2000, who will be nearly 16 years old by the time these reasons for judgment are delivered; his brother Y, born (omitted) 2005, 10 years old; and his sister Z, born (omitted) 2007, 8 years old. The children currently live with their mother, who is the Applicant in this case. The children spend time with their father. The Father, who is the Respondent in this case, suffers from a mental illness. The Court had to decide what order for the children to spend time with their father was in their best interests.
Background
The Mother is 46 years old, the Father 48. They are both (occupations omitted), the father having retired in 2015 as a result of his mental health. Cohabitation commenced in 1998 and they married in (omitted) 2001. The parties separated in September 2008 when Z was 1 year old.
The parents entered into Consent Orders on 7 July 2011, dealing with both property and parenting matters. The children were to live with their mother, but spend time with their father each week from 5:00pm Friday until 5:00pm Saturday, supervised by the paternal grandparents, but with the Father being able to take the children on short outings provided he was not consuming alcohol, and provided the children slept at the home of the paternal grandparents. As is reflected in these Orders, the Father’s problematic consumption of alcohol was a major concern when these Orders were first made.
In February 2012, the Father filed a Contravention Application. He alleged that the Mother was not complying with the July 2011 Orders. She said, in effect, that she was so concerned about the welfare of the children in the Father’s care that she regarded it as not being in the children’s interests for them to spend time with their father in accordance with the Orders. In June 2012, she filed what is the present application before the Court to vary the existing Orders about the children spending time with their father. It should be noted, however, that by the time of the final hearing, the Father withdrew both the Contravention Application and a Contempt Application, choosing to focus on the substantive issue about time.
In November 2012, the paternal grandparents signed undertakings as regards their supervision of the Father’s time. In December 2012, Orders were made about the Father’s telephone communication with the children. In 2013, most Court events seemed to focus on the appointment of an appropriate expert. Specifically, the issue was the Father’s ability to contribute to half the cost. The Mother was legally aided. The matter came before the Court on several occasions on this issue, and the delay in finally making an order appointing an expert was attributable to the Father. Eventually, on 10 December 2013, an order was made appointing Dr C as the Court appointed expert. Dr C’s report was received by the Court on 2 May 2014, and released to the parties shortly thereafter.
The matter was first set down for hearing on 9 February 2015. However, the Father did not comply with trial direction and was plainly unable to proceed, so the hearing was vacated and listed to 16 December 2015. The matter was heard over three days commencing on that date. Mr Alexander of Counsel appeared on behalf of the Mother. The Father represented himself. Ms Reynolds of Counsel appeared on behalf of Ms Luke, the Independent Children’s Lawyer.
This is a difficult case. Whilst the ultimate issue for the Court was to determine what Orders are in the best interests of these children, the exercise was, in reality, assessing and then managing the risks that the Father presented to the children as a result of his mental health issues. This case evolved over the three days of hearing. The proposals changed to reflect the evidence that was adduced. Such were the Court’s concerns about the children that it was asked to, and in fact made Orders, to govern the conditions on which the children would spend time with the Father between the relatively short period from 18 December 2015 to 28 January 2016, when the hearing concluded and the present reasons for judgment were to be published.
The interim order made on 18 December was to the effect that the children’s time with the Father was to be suspended unless the paternal grandparents entered into fresh undertakings to the Court acknowledging their obligations in supervising the children, including the requirement to be with the children at all times that the children are spending time with the Father. The Father’s own evidence during the hearing was that the existing Orders in this regard were being ignored, insofar as his time with the children took place outside of the home of the paternal grandparents.
The Orders sought
By the time of closing submissions, it was common ground between both parents and the Independent Children’s Lawyer that X should spend time and communicate with his father in accordance with his wishes. This reflected what had been happening for quite some time.
In relation to the younger children, Y and Z, both the Mother and the Independent Children’s Lawyer sought an order for sole parental responsibility, whilst the Father sought an order for equal shared parental responsibility. For reasons that will become apparent, the Court has made an order for sole parental responsibility to the Mother.
The main focus of the case was the children’s time with their father. By the time of closing submissions, the Independent Children’s Lawyer proposed that Y and Z spend time with their father as follows:
That the children Y and Z spend time with the father as follows:
a)From 11am to 6pm on alternate Saturdays, supervised by the paternal grandparents, Ms B and Mr A or the paternal Aunt, Ms C; provided that the paternal grandparents and aunt have provided undertakings to the Court acknowledging that they will supervise the father’s time with the children and ensure that he is in the presence of one or the other of them at all times whilst the children are in his care.
b)Upon the father completing 12 months of Dialectic Behavioural Therapy, and providing a letter from his therapist certifying such treatment to the Mother, the children’s time with the father shall be unsupervised from 1pm to 3pm
c)Such other time that the parties may agree in writing, to include text message or email.
The Independent Children’s Lawyer also proposed Orders in relation to special occasions and a number of restraints in relation to behaviour, as well as a detailed regime for parental communication. The detailed Orders sought by the Independent Children’s Lawyer are set out in the first schedule to these reasons.
The order proposed by the Mother was more restrictive than that proposed by the Independent Children’s Lawyer in that there was no automatic progression. She proposed that the children spend time with their father from 11:00am until 6:00pm each alternate Saturday, supervised by the paternal grandparents. She proposed a number of other Orders which included, for example, the Father completing an anger management course, engaging in dialectical behavioural therapy treatment, and completing a post-separation parenting course. The detailed order sought by the Mother is also set out in the first schedule to these reasons.
The Orders proposed by the Father involved unsupervised time, 24 hours each weekend, with the overnight portion being at the Father’s residence. In addition, he proposed block periods of up to six nights, for a maximum of eight times each year. The Father proposed a number of other restriction and enforcement provisions. The Father’s Orders are also reproduced in the first schedule to these reasons.
The proposals reflect the focus of the hearing, obviously in the context of the best interests and risk assessment exercise that was described earlier in these reasons. Should the children’s time with their father be supervised? If so, what should be the conditions of such supervision, and for how long should it continue?
The evidence
The evidence led in the Independent Children's Lawyer’s case was from Dr C. His report has been previously referred to. He also gave evidence by telephone from (country omitted) on the second day of the hearing.
The Mother’s case relied on her Affidavit sworn and filed on 3 December 2015.
The Father’s case relied on his Affidavits sworn 21 August 2012, 31 January 2013, 7 July 2014, and 8 December 2015. In the Father’s case, he caused to be subpoenaed Mr D and he then cross-examined Mr D. There is nothing in Mr D’s evidence that assisted the Court in making the present decision.
Both the Mother and Father were extensively cross-examined.
A number of other documents came into evidence, one of which was particularly significant. The report of Dr S, consultant psychiatrist and psychotherapist, dated 28 February 2015 became exhibit ICL1. A number of further documents were tendered in evidence, mostly business records, and where relevant, these documents will be identified and discussed in these reasons.
Overview of Reasons for Judgment
After setting out the applicable law, the Court will deal with the evidence of Dr C, and then the report of Dr S. Dr C and Dr S are consultant psychiatrists. They are both independent. They are both experts. As mental health issues permeate this case, it is best to seek to identify and understand those issues because this then assists the Court in understanding the Father’s perspective in this case. The evidence of the parents will then be considered, sometimes in detail. Following that, there will be an analysis of the relevant statutory provisions by reference to that evidence and finally, discussion about which Orders are in the best interest of these children.
By way of further overview, it is useful to attempt to summarise the parents’ respective cases. The Mother’s case was that the Father had suffered long standing alcohol addiction and mental health problems throughout their relationship. She consented to Orders for the Father to spend time with the children, but then became concerned about the appropriateness of these Orders, because of his behaviour. After hearing the Father’s evidence in this case, her concerns merely increased. Nonetheless, her case was that it was very important for the younger children to continue to have a relationship with their father, provided it was safe to do so.
The Father’s case was that there was no reason for the Mother, or for the Court, to be concerned about the welfare of his children whilst in his care. Indeed, no supervision was necessary. He was convinced that the Mother had caused X to become alienated from him. He was concerned that the younger children would follow suit. He felt excluded from the children’s lives. He was exceedingly frustrated by the legal process (even though he was the cause for an almost two year delay before the matter was heard).
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’), the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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 child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
“If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The evidence of Dr C
In an ideal world, Dr C would have given evidence last and in person. This Court does not operate in an ideal world. The demand for the Court’s time is vastly greater than the resources available to it. In any event, Dr C was in (country omitted) attending a conference and there was only a small window of opportunity for him to give evidence by telephone. This meant, for example, that the cross-examination of the Father had not been concluded by the time Dr C was cross-examined. Moreover, it meant that Dr C did not have the opportunity to read the report of Dr S. Nonetheless, Dr C’s evidence is very useful to the Court.
Dr C’s report, received on 2 May 2014, was based on interviews conducted on 17 February 2014. The main issue at that time was the Father’s problematic consumption of alcohol. Dr C records the Father’s representation that he no longer had any trouble with alcohol, and that alcohol had, in fact, not been a problem “for many years now” (lines 495 – 496). However, the Father told Dr C that he was not practicing abstinence at the time, and that “he does have a couple of drinks every now and then…one or two glasses on occasion” (lines 526-527).
At lines 517-529, the Father tells Dr C about two significant events that will be discussed in more detail in these reasons, involving his violence and threats. The Father described these incidents to Dr C as “two occasions he had been pushed to a point where he needed to let off steam” (lines 517-518). In terms of the threats he made at the time, Dr C records the Father saying, “I let it all hang out. It’s time to move on. I was just letting off steam. I mucked up for a night” (lines 532-533). In recording the Father’s description of his current symptoms, the Father indicated that he “gets very easily distracted…can’t focus very well” (lines 541-542).
At the time of the report interviews, the Father’s proposal for the children was consistent with that advanced to the Court at the final hearing, i.e. to have the children stay over one night per week, and for the order to be enforceable.
Dr C interviewed the Father, mother and the children, both individually and together. X appeared happy to keep the current arrangements in place. Y wanted to see a little bit more of his father. Even the Mother agreed that she would like the children to see more of their father, provided they were protected. The observations of the father and the children were all positive, with the children very happy to see their father.
The Father was clearly frustrated about the legal proceedings. He thought that the case had been facilitated by Legal Aid, that he felt the legal system was biased, and that there was sexual discrimination against him. He believed that there had been an overreaction to the alcohol issues. He blamed the Mother.
The paternal grandparents were interviewed. At first, they were not aware of their son’s alcohol problems. They became more aware as the problems were expressed through Court. However, they believe now that the Father was no longer drinking and had not been drinking for about two years. They seemed to accept what their son said in this regard. They were happy to continue to support the children and be available for supervision as required by the Court.
In Dr C’s professional opinion, the children had a good relationship with their mother. Despite the difficulty of the proceedings, he did not believe that she had contaminated the children’s thoughts about the Father. He thought she was appropriately protective in view of the Father’s mental health and alcohol abuse problem. The Mother had no mental health issues to be concerned about, notwithstanding having suffered anxiety and depression in her twenties. From a personality perspective, she was found to be high-functioning.
In relation to the Father, Dr C recorded that the Father openly acknowledged that he had a binge-drinking problem during his 20s and 30s. The Father was clearly a high achiever, with a (qualifications omitted) and working as a (occupation omitted) at the (employer omitted). He has a strong relationship with the children, particularly the younger ones. Dr C formed the view that without alcohol the father was a capable, caring parent, though having an anger and resentment issue directed towards the Mother, but stemming from his childhood. He did not seem to take a great deal of responsibility himself for his actions. He had a lot to offer the children. He must not put his own anger issues in front of the children. He is able to care for the children for short periods of time, which could possibly extend to overnight, but continued drinking would be a problem. Indeed, Dr C thought it was highly dangerous that the Father could think that he is a controlled drinker when he had had so many problems relating to alcohol in the past.
Dr C considered the Father’s mental health at lines 880-933. It is important to reproduce his opinion in this regard:
4. The mental health of Mr Allard.
Mr Allard possibly did suffer some self-esteem and self-image issues from some of the dynamic difficulties regarding treatment from his father with the family when he was younger. He did develop a taste for alcohol as a teenager. He suffered some depression and alcohol abuse throughout his 20’s. I found that he had alcohol abuse disorder. However there was no psychosis or other mental health disorder.
Mr Allard said he was struggling with is (studies omitted) at the time despite his heavy alcohol consumption he finished his (studies omitted) and has been working as a (occupation omitted) at the (employer omitted). However his heavy drinking as he acknowledged continued. He was drinking a bottle of vodka and a bottle of wine at times on a regular basis. This is an extraordinarily large amount of alcohol. It would seem that he has probably struggled with long-term low-grade depression or dysthymia which has led to alcohol use and alcohol use has probably led to continuation of his low-grade depression. He has attended detoxification for alcohol abuse on eight or nine occasions.
The reports from his treating physicians and his psychiatric assessments have all confirmed that he has alcohol dependency. The nature of alcohol dependency is that the only successful long-term treatment is abstinence. It is a great worry to me that he believes that he no longer has an alcohol abuse problem and that he is able to control his drinking. This is not consistent with the condition. He was surprisingly honest about this to me. However his parents believed that he was abstinent.
It would seem to me that Mr Allard has had self-image and self-esteem issues that when combined with alcohol led to a circle of chronic depression which leads to increase alcohol use which in turn is a depressant and has a major effect on Mr Allard’s relationships.
With regard to personality style it is difficult to make a clear assessment in his personality. he perhaps has some borderline features with poor sense of self, anger issues , feelings of abandonment, emotional lability, relationship difficulties, threats of self harm. He has dependent and anger issues and is strongly reliant on substances particularly alcohol. Together with his dependency there is a hostile dependency. I believe he has projected a lot of his anger onto his father when he was a child and his brother for not protecting him from his father. He seems to have also projected a lot of anger onto Ms Cameron. This continual dynamic the feeling like he has been treated unfairly is extending to some extent to affect the children for example he could have had four days with the children when Ms Cameron when on holiday to Melbourne. However he was not happy that his choice of companion was acceptable. He became enraged.
I believe that his lifelong history of rage and the examples of him destroying the door and then making death threats I believe these are examples of anger and rejection. He seems to have a relative amount of control. Another example of his denial is that he thinks that he still wishes to choose to be a social drinker suggests that he is functioning in a lot of denial. Surprisingly as Ms Cameron stated, he at the (employer omitted) has been able to maintain his employment.
It is significant to observe that Dr C was concerned, not just about the Father’s alcohol dependency, but about his personality style, which included some borderline features as described above.
Dr C considers the possible outcomes at lines 986-1016 in the following terms:
POSSIBLE OUTCOMES
1. Should the children live with the mother and have limited contact with the father I believe that they will continue to develop normally. However there is a risk their relationship with the father could break down. In the presence of the paternal grandparents there is still an extended family experience and this gives the mother some reassurance in regard to the father’s alcohol abuse problem.
2. Should the father have short periods of contact without supervision it is possible that the father may be able to manage himself to a reasonable degree for a period of time. I believe that he does care about the children and the relationship would develop further although there is a risk relapse into alcohol abuse
3. The third possibility is the children not see the father at all. This would be sad and would be very damaging to the children.
4. The next possibility is substantial contact with the father without supervision. The unknown factor is the father is drinking a small amount and how long it will remain a small amount. It is likely that the father will relapse into heavy drinking into the future: perhaps when he is under stress. I guess the issue is the threat to the children if the father does relapse. Is it likely that the father would harm the children or target them? He has made a murder suicide threat but I am not aware of other actions against the children. If the mother was to allow the children to see the father is there a mechanism to monitor the father’s alcohol? If the father was prepared to have CDA test or to take anti alcohol medications such as antabuse or campral would there be less concern for him to have substantial contact? However if he continues his alcohol use as an important part of his life then he may choose to share his children with alcohol and that the contact should remain daytime
Dr C was clearly concerned about the possibility of the Father relapsing into alcohol abuse, in view of the fact that the Father had told him he was drinking a small amount.
Dr C’s recommendations commence from line 1018 in the following terms:
RECOMMENDATIONS
1. The mother is an excellent residential parent and she had been able to maintain the relationship with the paternal grandparents.
2. The mother needs to accept a degree of risk that there is a trade off between not policing Mr Allard and his alcohol use which has caused hostility. Perhaps there could be a mechanism for the paternal grandparents to assist in a six month transition to unsupervised daytime contact; for example before and at the end of contact they could assist and add security at the end of the eight hour contact period. I recommend that the father be able to have daytime contact unsupervised one day eight hours once per fortnight.
3. Should the father decide to become abstinent and undergo the testing and a mechanism to confirm his abstinence then after twelve months he could have full weekend unsupervised contact from Friday to Monday mornings.
4. I recommend that neither parent denigrate the other parent.
5. Anger management and dialectical behavioural therapy for the father in order for him to address some of the difficult self esteem and self image issues as well as his emotional regulation difficulties.
6. The mother would benefit from some individual psychological help in how to manage the difficult situation she finds herself in.
7. Should the father relapse into heavy alcohol use he will need to undergo psychiatric evaluation and for contact to cease until the psychiatrist can indicate that it is safe to see the children.
8. If the father is going to continue to drink socially then he needs to accept that alcohol is in a relationship with him. The father needs to be abstinent of alcohol to be able to have shared parental responsibility.
9. The father has a relationship with alcohol which has been like a poison in his life. Overall I believe that the mother is the superior parent however the father does have a lot of strengths. He does have the capacity to contribute the children’s lives. Alcoholism a very insidious condition the does destroy the lives of many people. I would hope that the father could divorce himself from alcohol so that he can have a full relationship with the children.
10. It should be explained to the children that the father has an alcohol sickness that prevents him so that the children can understand and use an illness paradigm that is less pejorative for them to understand his behaviour.
Dr C was cross-examined by telephone. He acknowledged that the CDT test provided by the Father suggests there had been no problems with consumption of alcohol to excess in the period before the test.
Dr C was informed about Dr S’s involvement with the Father, the preparation of a report, and his diagnosis that the Father had Borderline Personality Disorder, rather than traits. Dr C was unsurprised, noting that some of the documents before him at the time of the report suggested a significant personality issue. He explained that the difference between features, or traits, and a disorder is one of degree, with the latter reflecting an ongoing and lifelong pattern of problems. Alcohol abuse is a complicating factor.
Dr C was not concerned about the Father’s use of dexamphetamine on a regular basis, provided it was in accordance with his prescription. It was useful in treating adult ADHD and depression.
Dr C was told that Dr S had ultimately concluded that because of the Father’s Borderline Personality Disorder, he was not capable of performing his duties as an (occupation omitted). He was asked whether that gave rise to concerns about managing the children. He thought it did, to a certain degree. He had managed significant periods of time with them in the past, and could probably function adequately as a parent for short periods. The fact is that the children have a close relationship with him, and that needs to be balanced against any risk. The risks that he could foresee included the Father becoming angry and making threats (of harm to himself and others such as the Mother and children) and the risk of relapse into alcohol abuse, thus putting himself and the children at risk.
It is important to record at this junction that the Father’s cross-examination had not been completed and Dr S’s report had not come into evidence. Thus, when Dr C agreed with Counsel for the Independent Children’s Lawyer that unsupervised daytime contact might be a good first step in progressing to overnight time, Dr C did not have the full picture. Nonetheless, Dr C expressed his clear concern that “the father has a relationship with alcohol…that relationship with alcohol is competing with his other relationships in his life…if he continues some sort of relationship with alcohol, then he does have to accept that…his relationship with his children and others will be reduced.”
It was put to Dr C that in the evidence that the Father had given so far, he had completely abstained from all alcohol since the report interviews. Indeed, it was put to Dr C that the Father would be putting to him that he (Dr C), had in fact, misunderstood what the Father said to him at the report interview. In fact, the Father was maintaining that he had had only one glass of wine here and there over a period of five occasions over about five months, prior to the interview. Dr C explained that the nature of alcohol dependence is largely one of self-deception, and thus, even if there is a drink here or there over several months, that still suggests a significant risk that alcohol will start to dominate his life again. The Father may well be able to function reasonably for a few years without having major relapses, but nothing is certain.
Counsel for the Mother cross-examined Dr C about whether the risks that he had identified about the Father’s anger and alcohol abuse, were in fact separate risks to the mental health issues that seemed to be emphasised in Dr S’s report. Dr C thought, however, that even if the Father was personality disordered, his anger and alcohol abuse was very much linked to this. He was encouraged to hear that the Father had accepted Dr S’s diagnosis of personality disorder and that he was engaging with a psychiatrist, as it was a treatable condition. The treatment, however, would be hard work over a period of time and necessitated a commitment on the Father’s part to therapy, as well as developing practical skills. He agreed that it would be helpful if the Father took responsibility for his own actions, and that any treatment and therapy would not be as useful, if at all, if the Father felt that he was being forced to do so.
Dr C indicated that he would be concerned if the evidence suggested that the Father externalised responsibility for his actions to other persons. This was of concern because it would be harder for him to take responsibility for his past to deal with his own problems. He thought the Father would be assisted by anger-management courses.
He was specifically cross-examined about suicide risk. The evidence indicated that the Father had felt suicidal in 2010, but not since then. He was asked whether that suggested that it was unlikely to recur. Dr C thought that at times of high stress it could re-occur. He agreed that one of the triggers for re-occurrence might be the present proceedings, and the stress it would impose on him. He agreed that the Father’s threat to harm himself and the Mother in January 2012 was of concern, as was the Father’s attempt to minimise the significance of the same. Nonetheless, he did not regard the Father as an ongoing high risk of acting on those statements, as they did seem to have been said in a moment of extreme stress.
Dr C explained that the Father’s reaction to some of the key events in the evidence in this case was consistent with his personality difficulties. Thus, the camping incident (about which much will be said later in these reasons) was a relatively small incident that assumed a great significance in his mind, because he took it as a very personal insult, consistent with his borderline personality traits or disorder.
Dr C was cross-examined by the Father. The Father had already expressed to the Court his firm belief that Dr C was biased against him. He put to Dr C that he had not given him the same time as he had given the Mother. Dr C rejected this, firmly but politely. The Court accepts his rejection of the proposition. With great respect to the Father, the totality of the evidence before the Court gives rise to serious concerns about his ability to perceive reality, as opposed to reconstruct events.
The Father also challenged Dr C’s expertise in the area of alcohol abuse and alcoholism. Indeed, he was not satisfied with Dr C’s answer that he had 30 years’ experience as a psychiatrist, including treating people with alcohol difficulties. The Father’s response to that was to say, “I have some experience with hammering nails into wood, but I’m not a builder, so I’m just wondering whether you had any formal training to that effect?” The Court is more than satisfied with Dr C’s response about his training and experience. He conceded that he is not a sub-specialist in alcohol abuse, but as a general psychiatrist he had expertise and understanding in the nature of alcohol dependency. The Father’s line of cross-examination was misconceived, but is entirely consistent with aspects of his past behaviour, including during the conduct of the proceedings.
The Father challenged Dr C about his preference for abstinence, as opposed to controlled drinking. It is unclear why he would do that, in circumstances where his own evidence was that he had abstained. Nonetheless, Dr C’s complete answer merits reproduction:
Often the road to abstinence is one of a relapsing and recurring pattern, and..... of experimentation to reach a final destiny of whether or not alcohol can be part of your life or can’t be part of your life. And most people need to be able to go along that road to work out themselves, you know, what – where alcohol fits in their lives. But often in that process there’s a lot of denial and a lot of relapses and a lot of harm that occurs, and that’s the dilemma when you’re a parent with children. And so that’s generally why it’s normally recommended early on, when it’s somebody who has a severe relapsing alcohol problem, that abstinence is the goal.
The Father then challenged Dr C about the lack of focus in his report on the Mother’s past, and her issues. Dr C firmly refuted this, pointing out that he details the significant difficulties that the Mother struggled with in her past. He summarised by saying he does not believe that he painted a completely clean bill of health for the Mother but that she seemed to have been able to manage her difficulties, and to function as an adult, without having carried those problems into her adult life to the same degree as the Father had. Moreover, she had not complicated her issues by substance abuse, like the Father had.
Finally, Dr C firmly refuted the Father’s proposition that the Mother had contaminated the children’s views. He confirmed that there was no undue contamination of the children, and that although the children were aware of issues between the parents they had, to a large extent, been spared too much contamination from both of their parents.
The obvious limits to Dr C’s evidence have already been noted. His recommendations obviously need to be qualified by reference to evidence that was not before him at the time of preparation of the report. Subject to that, there is no reason not to accept his recommendation and there is no basis for accepting the Father’s allegations of bias.
The report of Dr S
Dr S’s report is dated 28 February 2015 and is addressed to the Human Resources Division of the (employer omitted), the Father’s employer. The Father explained that he had been referred to Dr S by the (employer omitted). He was of the belief that his employment with the (employer omitted) ended as a result of the report. It is clear from the Father’s evidence that he had this report in his possession from shortly after it was released. He had not disclosed it. He did not think it was relevant. He did not produce it until the second day of the hearing. When confronted with the existence of the report, the Father expressed a preference not to discuss the report in evidence, because he thought that a confidentiality agreement that he had signed with the (employer omitted) (presumably around the circumstances of his retirement) precluded reference to the report. If that was the case, there was certainly no evidence to support that contention. The report was clearly relevant, and admitted subject to weight (discussed below).
It is important to note that the Father, in his evidence, agreed with Dr S’s diagnosis of Borderline Personality Disorder. He agreed with Dr S’s opinion that he probably would not be able to work again in an (occupation omitted) capacity. He described Dr S’s report as being “too close to the bone”. He was asked whether it was a report where having read it, the Father essentially agreed with its opinions? He replied yes, and this is why, he said, “It’s a bit too close to the bone”. Indeed, he was complimentary of Dr S, whilst finding his methods somewhat intimidating. The Father did explain that there were some specific aspects of the report that he did not agree with. These concerns will be dealt with where relevant.
There are obvious limitations to the weight that can be given to Dr S’s report. He was not cross-examined. He did not have all of the material available to him, that either Dr C had at the time he did his report, or the Court had at the hearing. Nonetheless, it is a much more current assessment of the Father’s mental health and, as will be seen below, a breathtakingly comprehensive assessment of the same. Of significance is the Father’s own evidence that he accepts Dr S’s diagnosis of him.
From the Court’s perspective, what is striking about Dr S’s description of the Father is how it accurately depicts the Father’s presentation and behaviour in Court, as well as the evidence about his past acts.
Dr S had available to him correspondence from Dr A and Dr L, the former being the Father’s treating psychiatrist, the latter the Father’s GP. At page 2 of Dr S’s report, he refers to Dr A’s letter of 13 April 2012, where Dr A says:
My understanding is that there was an altercation between Mr Allard and his ex-wife, whilst he was intoxicated in mid-January this year...He had several glasses of wine and rang her telling her that if he was gone she would have further financial problems. What he implied was that she was in fact stressing him out and if he was to suicide there would be no one to pay child support. At no point did Mr Allard threaten physical harm to his ex-wife or his children. Mr Allard told me that when he sobered up he did not feel suicidal.
Dr A’s letter of 13 April 2012 was not in evidence. There is no reason to doubt the accuracy of this extract.
Of concern to the Court is the Father’s reporting of the events of 13 April 2012 to his own treating psychiatrist. The risk is that the Father represented to his treating psychiatrist that the events were far more benign than they, in fact, were. The risk, of course, is that the Father is minimising the significance of his past actions, not just to himself, the Court, and to the Court appointed expert, but even to his own treating psychiatrist.
The incident in question took place early in the morning on 18 January 2012. There are several sources of evidence about what took place on this day, including the Mother’s evidence, the Father’s evidence in cross-examination, and the police report that became exhibit A2. It is unquestionably the case that the Father threatened to kill the Mother, and then himself. If the Father represented to his treating psychiatrist that he did not threaten physical harm to the Mother, he is categorically wrong. Even he admitted this in cross-examination. The significance of this is the reasonable assumption that can be made that the Father, who depends on his psychiatrist’s treatment of him, is not telling his psychiatrist what actually occurred. The risk is that the Father creates a bubble of deception with his treating professionals, by systematically minimising the seriousness of events that actually occur, so they are not treating him appropriately. This bubble of deception needs to be burst. If Dr A and Dr L are to have any positive role in treating the Father, they must know the facts, which includes having access to these reasons for judgment, and the reports of both Dr C and Dr S. The risk is that the Father is a unreliable historian, even to those whose professional role it is to help him.
Returning to Dr S’s report, it is clear that he formed the professional view that the Father became obsessed with the litigation, considered the legal system broken and terrible, and regarded his self-appointed role as its saviour. At page 4 of the report, reflecting on what the father told him in interview, Dr S states:
… his private personal issues totally dominate his every waking moment. He cannot contain his “broken world”, and struggles to deal with it, by turning it into a public issue, an exciting heroic adventure. He tries to master it wherever he is, day and night. His obsessive fixation on this one issue is like a powerful vortex that consumes all his attention.
In the context of the Father’s response to his employer’s attempts to manage his workplace performance, Dr S observed at page 5:
His strong sense of entitlement blinds him to the reality that the (employer omitted) has ongoing (employment omitted) obligations. He does not have the capacity to see things in correct perspective, nor can he tolerate helplessness or any awareness of his dependency. He cannot feel or express gratitude as he is so consumed by his own needs, his entitlement and his destructive envy.
Curiously, at page 6, Dr S reports on an exercise that he undertook with the Father when he asked him if he could estimate how much time he had been in the room thus far. The Father replied 35 minutes, when in reality it had been well over an hour. The obvious irony, of course, is that the Father challenged Dr C about issues of time.
At page 9, Dr S reports this quite disconcerting dialogue of the Father:
Mr Allard is now 'on a roll'. He continued to talk in an excited manner, with a mild pressure of speech. “There is a whole community of 'Dads in Distress'. There is a whole world of pain out there. There is a minimum of three fathers per day who suicide! (He smiled as he said this). There are so many grim responses. There is killing yourself, killing your kids or partner, there is killing the mother of the children, and there is killing all members of the family.” He then told me that there was “a politician who drove his car with his two children into a dam, killing the children. He did this as a result of a child custody dispute. Now he is in jail. It is so unbelievable, so fantastical, so ridiculous!" (He is again smiling as he tells me this). “What a horrible day when I realised that I understood what the politician did. I would not do it, but I can understand the frustration. I'm not capable of hurting people. I've never done it. Especially to someone I've loved. (Again he was smiling). But it's the absolute frustration when any opposition gets in your way...”
As will be seen from the Father’s evidence in cross-examination, he said a similar thing in Court.
At page 10, Dr S presents this insight into the Father:
Tragically, Mr Allard does not have any realistic or true perspective on himself, his severe “mental breakdown” or his “broken world”. He identifies with others who react in the same way as he does. This he believes is a “normal reaction”
when it is not. As he has not had any regular psychiatric help or formal psychotherapeutic treatment, he has not been able to gain any clearer or healthier insights. For example, in the course of a structured intensive psychotherapy, these incorrect ideas, strongly held beliefs and entitlements are carefully challenged and opened for him to discuss and hopefully gain a deeper perspective and understanding.
There is this disturbing paragraph on page 11:
All this focused and determined “mad” activity to try to heroically fix the “broken legal system”, and thus avoid having to face the almost impossible task now of fixing his “broken mind”, his “broken marriage” and his “broken family”. To this long list of personal disasters, one could add now the possibility of his “broken (omitted) career”. One aspect of this enormous tragedy is that all of this has occurred as a result of serious mental conditions that could have been treated more comprehensively.
Of particular concern to the Court is Dr S’s opinion that the Father’s serious mental conditions have not been treated properly. If the Father has not been truthful with his own treating doctors, that is hardly surprising. It is interesting to note that the Father’s evidence is that his treating psychiatrist believes he has ADHD, a diagnosis that Dr S strongly rejects.
At page 13 of the report, Dr S discusses the Father’s defence mechanisms in dealing with the stress of the marital breakdown and the litigation. He says:
The defence mechanisms that Mr Allard uses in dealing with the stress of marital breakdown and his private legal battles help us to understand Mr Allard's state of mind. DSM-IV explains that “Defense Mechanisms (or coping styles) are automatic psychological processes that protect the individual against anxiety and from the awareness of internal or external dangers or stressors. Individuals are often unaware of these processes as they operate. Defense mechanisms mediate the individual's reaction to emotional conflicts and to internal and external stressors. The individual defense mechanisms are divided conceptually and empirically into related groups that are referred to as the ‘Defense Levels’.”(p807-813)
In the DSM-IV Defensive Functioning Scale, there was a hierarchy of seven different Defense Levels, from the healthy (first level is the “High Adaptive Level”) to the most disturbed (seventh level is the “Level of Defensive Dysregulation”).
Mr Allard uses defences characteristic of the moderate to severely disturbed levels. This correlates with his poor functioning. During the last few years, he functioned often at the third level, that of moderately disturbed defenses (“the minor image-distorting level”). This level is characterised by distortions in the image of the self, body or others that may be employed to regulate self-esteem. Examples of defense mechanisms used are devaluation, idealisation and omnipotence.
At the more serious fourth level (“Disavowal Level”), mental functioning is characterised by keeping unpleasant or unacceptable stressors, impulses, ideas, affects, or responsibility out of awareness, with or without misattribution of these to external causes. Examples of defense mechanisms used include denial, projection and rationalisation.
At page 14, Dr S sets out the Father’s past psychiatric history. This is both important and useful, as it is not comprehensively set out anywhere else in the evidence. The Father did not cavil with this history. Indeed, in his evidence, he accepted the accuracy of the Mother’s evidence about the record of his previous hospital admission, which is broadly consistent with what Dr S sets out here:
Mr Allard told me that he had used drugs and alcohol in the past. He informed me that he had been in (omitted) Private (Psychiatric) Hospital under the care of Dr A about “5 or 6 times in a two year period”, for “suicidal ideation or suicide attempts” and also for “alcohol dependence problems”. He had also told me that he had been admitted twice to (omitted) Hospital, and was “sectioned for about 2 weeks”. This means that he was detained as an involuntary patient under the Mental Health Act.
When I received the discharge summaries from the (omitted) Hospital, it was clear that Mr Allard had been very unstable over many years. In summary, he often presented to the hospital late at night, intoxicated with alcohol, having threatened or attempted suicide. He was often brought in by the police, and would settle in the Emergency Department of the hospital, or in the Psychiatric Emergency ward. He was often then transferred to (omitted) Psychiatric Hospital. He also presented to (omitted) Hospital drunk within a short time after discharge from (omitted) Psychiatric Hospital.
Medical Records sent me discharge summaries relating to Mr Allard's admissions to (omitted) Hospital Emergency Department from 2008. However the hospital notes also mentioned earlier admissions:
1.In 1996 he “put his head in the oven to gas himself.” This was described in the notes as an “impulsive act.”
2.In 1998 he “cut his right wrist, injuring one of his tendons. This was “a planned act” and required surgery.”
3. On 13/08/08 he was brought to the hospital by his wife in acute alcohol withdrawal. Drinking “2-3 litres wine per day.” The notes indicated that he had been “drinking heavily for 20 years.”
4.18-19 June 2009 he presented “depressed, suicidal, with multiple superficial skin lacerations in his right cubital fossa. This required wound exploration and suturing.”
5. 2-4 January 2010 he presented “after inflicting lacerations to right forearm in suicidal gesture.” He had “started to drink alcohol again after 6 months abstinence.” The medical notes recorded “Borderline personality traits, long history of alcohol dependence, a history of a difficult childhood with verbal and emotional abuse by his alcoholic father. It was suggested he would benefit from psychotherapy to resolve the childhood issues.”
6. 12-13 November 2010 the “police brought him to ED after he threatened to assault his father following a verbal altercation. Drinking 1 bottle vodka per day for last 2 weeks. He said that ‘when the vodka speaks, it speaks the truth.’ He smiled incongruently and talked of cutting his arm. He denied gambling currently. He said he last used marihuana 3 months earlier. He also admitted to being an intravenous drug user in his 20s, when he would inject speed, heroin, ecstasy, diazepam, quetiapine (has done this in January). He also has an AVO against him after he smashed the back door of his wife's house. He was transferred to (omitted) Hospital.”
7. 6-7 January 2011 when he was “scheduled by his GP after admitting that he planned to gas himself in car. He had been bingeing on 1 bottle vodka per day for last 3 days. He was recently discharged from (omitted) Hospital. He has antidepressant-induced hypomania. He recently sold his house.”
8.18 January 2011 he was “brought in by the police under schedule. He had gone to his wife's house after drinking 1-2 bottles of wine. He had bashed on doors and windows, threatening to kill her and himself. Began drinking last night because he was angry. History of Bipolar II Disorder. Long history of deliberate self-harm. Sees his Psychiatrist every 6 weeks. He presented in his work clothes to hospital at 5am as he had not been to bed. He was belligerent, but at times eager to disclose his current stressors. He was labile, angry and laughed inappropriately. He used obscene language and swore profusely. He was evasive when asked about his intent to harm his ex-wife.”
At page 19, Dr S deals with a matter of concern to the Court, especially during the closing stages of the hearing, i.e. whether the father was a murder/suicide risk. Dr S states:
Having again blamed everyone else, he has disburdened himself of any responsibility for his own behaviour and the consequences thereof. He also adds the anxiety-provoking comments about his and others suicidal and murderous thoughts and actions. This is used to unsettle the reader, to ‘rattle the sabre’ and warn others to ‘keep off his case’. Having thus neatly dealt with the irritating issues by displacing the anxiety and responsibility onto others, Mr Allard then ends on a bright, cheerful and positive note:
“Returning to the issue of performance and looking ahead to the spring session.”
As will be seen from close examination of the Father’s evidence, he did make comments about suicide and murder, which were clearly anxiety provoking, not just for the Mother but for the Court, and one suspects for all present in the Court.
Dr S’s diagnosis and prognosis of the Father’s medical condition commences from page 20. He diagnosed the Father as suffering from:
a)Cluster B Personality Disorder with predominant borderline, narcissistic, antisocial and histrionic features, severe;
b)persistent depressive disorder (dysthymia), chronic, severe;
c)alcohol use disorder, in remission;
d)stimulant use disorder, in remission.
He then goes on to comprehensively explain those terms.
Specifically in terms of the risk of harm, Dr S records at page 21:
Individuals with this disorder display recurrent suicidal behaviour, threats, gestures, or self-mutilating behaviour. Completed suicides occur in 8-10% of such individuals, and self-mutilative acts (e.g., cutting or burning) and suicide threats and attempts are very common. Recurrent suicidality is often the reason these individuals present for help or are brought to medical attention and hospitals. Mr Allard has had a long history of suicidality, with repeated admissions to psychiatric hospitals for in-patient treatment since the 1990s.
These self-destructive acts are usually precipitated by threats of separation or rejection or by expectations that that the individual assumes increased responsibility for himself.
At page 22, Dr S expressed the opinion that premature death from suicide may occur in individuals with Borderline Personality Disorder, especially in those with co-occurring depressive or substance use disorders.
Referring to the diagnosis of Narcissistic Personality Disorder, at page 22 Dr S described these patients as having a pervasive pattern of grandiosity, need for admiration, and lack of empathy. They have a grandiose sense of self-importance, are boastful and pretentious. A marked sense of entitlement is evident.
At page 23, he observed that the Father felt entitled to his rights, and demanded these loudly and assertively, but did not feel under any obligation to meet his corresponding duties. The context, of course, was his workplace. He goes on to say, however:
The vulnerability in self-esteem makes these individuals very sensitive to “injury” from criticism or defeat. Although they may not show it outwardly, criticism may haunt these individuals and may leave them feeling humiliated, degraded, hollow and empty. They may react with disdain, rage, or defiant counter-attack. Such experiences often lead to social withdrawal or an appearance of humility that might mask and protect the grandiosity.
The Court regards this passage as particularly significant on the issue of how the Father might react to an outcome in these proceedings that is contrary to his expectation.
In relation to his diagnosis of the Father as suffering from Antisocial Personality Disorder, he describes these patients as characteristically impulsive, impetuous, and act unthinkingly. At page 24, he opined that they are more likely to die prematurely by violent means such as suicide, accidents, and homicides.
At page 26, Dr S deals with the Father’s prognosis. Consistent with Dr C’s evidence, he records that personality disorders are by definition enduring and relatively stable but can be treated. Dr S was clearly concerned that Dr A had only provided pharmacological treatment, with minimal follow-up, but with no structured regular long term psychotherapy. Because of the absence of psychological treatment, the Father presents in recurrent crises.
At the bottom of page 26, Dr S states:
He has been and is chronically suicidal. As he is not involved in any serious and potentially helpful psychotherapeutic treatment, in addition to his pharmacological treatment, his prognosis remains very poor.
At page 28, Dr S records:
Whatever the outcome of the court case, he will have to come to terms with the reality of his life. If he “wins” this current court case, he is at serious risk of increased depression and despair as he faces the devastation in his life. His many troubles are far from over. If he “loses” the case, he also remains at very high risk of suicidal and potential violent/murderous rage and acting out. He has threatened this many times over the last two decades. Also, if he loses the case, he may feel more desperate and bleak with “nothing to lose.” He may also choose to appeal, and thus continue his legal workload into the foreseeable future.
He felt that most of the Father’s complex problems were of his own making, but he had very little insight and little emotional strength to bear the responsibility for who he is, and his own life choices. Thus, he blames other people and external circumstances for his problems, rather than being able to accept responsibility for them.
Dr S’s opinion was that the Father would clearly benefit from intensive psychotherapy to stabilise his mental state.
In assessing the weight to be given to Dr S’s report, it is useful to deal with the cross-examination of the Father in relation to Dr S’s report, at this point of these reasons.
The Father explained that he had not read the report in total, because he found it too close to the bone, but he had it described to him in full by his GP. He referred to Dr S as a very effective psychiatrist, but that his methods were incredibly offensive, attacking, and intimidating. He confirmed that he essentially agreed with the opinions expressed in it. He agreed that he had told Dr S that he was 80 per cent obsessed with the Court case, but that where Dr S referred to 99 per cent, that was clearly wrong. He agreed that his preoccupation with these proceedings had unbalanced his life. He expressly disagreed with Dr S’s contention that if he lost the case he was at the risk of suicide, violent/murderous rage and acting out. He was then cross-examined about whether he had, at times, engaged in rages where he had lost control. The Father responded:
They are very, very few, and the sledgehammer is one of rage. The night of, you know, skylarking around (omitted) was not rage. It was – it was mucking up.
It was put to him that on 12 November 2010, he had threatened to kill his own father. He agreed, explaining that this was “after a seven-day bender”. He explained that he did not actually touch his father but did intimate that he would like to kill him. He agreed that that was his state of mind that had grown out of a week of drinking and reflecting on what the psychiatrist at (omitted) Hospital had told him as a result of his previous admission.
He was asked to accept that there were a number of times over the last 20 years when suicide was something that he had considered. He agreed; indeed, he said, “It has been constant at times, yes.”
It was put to him that Dr S suggested that if the Father lost the case he would feel more desperate, and bleak, with nothing to lose. The Father’s interesting response was: “I can’t predict the future.” The Court observes it would have been far more reassuring if he had simply said that the proposition put to him was not true.
The Father categorically denied ever having made any threat of physical harm to the children. The evidence seems consistent with that.
He accepted that part of Dr S’s report that indicated that the underlying issue in relation to the Father’s mental health is really one of chronic depression.
He explained that Dr A, his treating psychiatrist, is “not a great fan of Dr S”. Dr A, apparently, had dismissed out of hand the diagnosis of Borderline Personality Disorder.
The Father was directed to the passage in Dr S’s report at page 9 about the father who drove his car with his two children into a dam. The Father said that he did not remember smiling as recorded by Dr S, but certainly remembered telling him about the incident. The following exchange took place between Counsel and the Father (transcript, 17 December, page 24, lines 5-12 inclusive):
MR ALEXANDER: Right. And do you mean by that that there are some occasions and some circumstances where you could understand that action occurring?
MR ALLARD: I can – and I’ve relayed this to staff in – when I was contacting some legal agency to get advice about the Child Support Agency, where I had quite an extensive conversation with the – the legal – or the paralegal on the phone, and I – I expressed that I told that story, and – and I said, you know, one afternoon, I – something which had been so horrible to me, an event that seemed so – so abhorrent, to kill your own children, I – I understood, and that was a disturbing moment.
MR ALEXANDER: And I think you indicated to Dr S that you need to put the children out of your mind:
Otherwise, I’d go nuts. It’s too much.
?---
MR ALLARD: Yes. Yes. For – for a – a period of time, that – that was the case. I couldn’t – I – I – I deleted ABC3, in case I accidentally passed the cartoon channel. I mean, I – I would like to convey here that any reminder of your children, when you know you’re not seeing them for two weeks to come – you can – you can break down. I’ve cried in Landline on a Sunday. You know, it’s – it’s not easy.
The Father agreed that he had told Dr S that there was a period of time when he had turned all the photos of the children down, or put them in a box for a while. He explained that any reminder of the children, when not seeing them, was upsetting.
It was specifically put to the Father that his diagnosis of personality disorder included borderline, narcissistic, anti-social and histrionic personality disorders. The Father agreed with the diagnosis. He gave examples of conduct consistent with the diagnosis.
He disagreed with the contention that simply because his mental condition prevented him from working in an (employment omitted) capacity, that that somehow affected his parenting capacity. He thought the roles were fundamentally different.
What is interesting about the Father’s evidence in cross-examination of Dr S’s report is that he cavilled with so little of it. He agreed with the fundamental diagnosis. The matters in respect of which he took exception were not critical. He was given ample opportunity to cavil with the broad-ranging matters covered by Dr S. It became apparent from the Father’s evidence that both his psychiatrist, Dr A, and his GP, Dr L, had received copies of the report, and he had opportunities to discuss it with them.
These matters merely provide reassurance to the Court that weight can be placed on this report because there is so little of it that the Father was concerned about. The Court considers Dr S’s report to be significant evidence. It is the most recent available assessment of the Father’s mental health. The diagnoses contained there are accepted by the Father himself. Despite the Father’s mental health problems, and the obvious challenges of representing oneself, he is a highly intelligent and articulate man, obviously well versed in the law (e.g. able to cite the decision of Rastall & Ball & Ors [2010] FMCAfam 1290 on an issue of admissibility of otherwise privileged material).
Whilst no submission was made to this effect, the Court would be entitled to draw the inference that the Father, who had been in possession of this report for many, many months, and who had discussed it with his treating professionals, ought to have known its relevance, and should have disclosed it to the Court. He did not do so. This made the task of the Court, and those representing the Mother and the Independent Children’s Lawyer, much more difficult.
There is an obvious difference in emphasis between Dr C, and Dr S’s report. Dr C focuses on the issues of the Father’s alcohol abuse and anger, whilst hinting at personality issues as a subsidiary problem. Dr S focuses on the Father’s personality issue. Ultimately, the two reports are not inconsistent with each other. Dr S’s evidence is of much assistance to the Court.
The evidence in this case more than satisfactorily explains the firm basis on which the s.60I certificate was issued. And yet in his Affidavit he attributes the decision made by the Family Relationship Centre about the inappropriateness of family dispute resolution to the Mother’s “poor behaviour and uncontrolled anger”. Again, the accuracy of Dr S’s description of the Father at page 10 of his report as being a man who “does not have any realistic or true perspective on himself, his severe ‘mental breakdown’, or his ‘broken world’” is powerfully demonstrated.
The Father’s distorted thinking is again manifested in the evidence he gives about Judge Jarrett’s case management of the matter on one occasion, on 15 July 2013. Somehow, he construes this one Court event as His Honour having “questioned the purpose and/or need for this case to be in the Court.” It beggars belief that the Father would interpret Judge Jarrett’s single intervention in this case in the manner that he has. And yet Dr S refers to this at page 13 of his report, in describing the defence mechanisms that the Father uses it to deal with situations of stress and which include “distortions in the image of the self, body or others… devaluation, idealisation and omnipotence.”
The Father’s evidence speaks for itself. It is plainly unreliable, insofar as his evidence differs from that of the Mother. The Father clearly lives in what Dr S described as his “broken world”, and sees all things through that perspective. In his “broken world” he has a “strong sense of entitlement” that Dr S explains blinds him to reality. The tragic reality in this case is as Dr S explained, i.e. the Father “does not have the capacity to see things in correct perspective.” This is an exceedingly sad, and a tragic case.
Meaningful relationship
The agreed Orders in relation to X reflect the state of the relationship between X and his father. It is hard to say if it is meaningful or not.
In relation to Y and Z there is clearly a meaningful relationship between them and their father. This has continued, indeed possibly even grown, despite the very limited time that he spends with them. The children will benefit from having a meaningful relationship with their father. This will be achieved on any of the proposals advanced to the Court, subject to the need to protect the children from any risk of harm.
Protecting children from harm
This is, by far, the most important consideration in this case. There is no need to repeat the evidence that has been set out above in relation to this issue. In summary, the main risk of harm to these children is as a result of the Father’s untreated mental health conditions. There is also the risk of relapse into alcohol abuse. The Court believes there is a real, associated risk of murder/suicide in this case, although the risk of suicide is probably greater than the risk of the Father harming others, including the Mother and his own children. It is, nonetheless, a real risk.
The Court fully recognises that at page 19 of his report, Dr S characterised the Father’s comments about suicidal and murderous thoughts and action as possible “sabre rattling”, but elsewhere in his report he also explained the risk of suicide in patients with Borderline Personality Disorder, their inability to control anger and their predisposition to premature death. He explains that patients with Narcissistic Personality Disorders are very sensitive to injury from criticism or defeat. It is quite possible that the Father will interpret the Orders that the Court makes, and these reasons for judgment, as precisely that.
Dr S warns that such patients may react not just with disdain, or defined counter-attack, but also with rage. Dr S points out that patients with anti-social personality disorder are characteristically impulsive, impetuous, and act unthinkingly, and again are more likely to die prematurely by violent means. The fact is that the Father’s mental health issues have been long-standing, having included highly violent outbursts, and he has, to use the words of Dr S again “been and is chronically suicidal.”
In view of this, anything but supervised contact with the children is plainly an unacceptable risk of harm to them. All of these concerns are not mitigated by the evidence the Father gave of the willingness to engage in therapy. Therapy has been suggested to him for many years, and indeed dates back to a 2010 psychiatric admission to hospital. He has had two reports, of Dr S and Dr C, that recommends therapy, but he has done nothing.
The Orders proposed by the Father are out of the question.
The Independent Children’s Lawyer’s case was, in this Court’s view, off-track. It focused too much on the Father’s alcohol dependence issue, and not enough on what the real issue in this case is, i.e. his more pervasive mental health issues. Of particular concern is proposed Order 4(b), that provides for a progression to partly-unsupervised time on completion of therapy. The basis of this is unclear from the evidence or the submissions made.
The Orders proposed by the Mother are the most appropriate means of addressing the concerns the Court has about the risk of harm to these children. Even with these Orders, however, the Court has a lingering doubt as to whether supervision by the paternal grandparents is adequate. It is quite possible that they simply do not understand the nature of the risk to their grandchildren and the importance of constant, personal supervision. The Independent Children’s Lawyer proposed another supervisor, Ms C, who provided no evidence. The parents may well be able to agree to another suitable supervisor. Whoever the supervisors are, the Court believes that they would be greatly assisted by meeting with the Independent Children’s Lawyer to discuss the case and being provided with copies of these reasons for judgment, as well as the reports of Dr C and Dr S.
The Court recognises that the Orders proposed by the Mother do not provide for progression in the Father’s time, particularly if he were to engage in the therapy that is contemplated by those Orders. The Court would prefer that if and when the Father does undertake and satisfactorily complete the therapy that he clearly needs, that a further application be made. The Court remains sceptical about the Father’s capacity to actually engage in such therapy. There is a real risk that he was merely saying to the Court what he thought the Court needed to hear about willingness to engage in psychotherapy, rather than a genuine appreciation of the need for it. He clearly did not see the need for him to undertake an anger-management course, or Parenting After Separation course.
In terms of minimising the risk of harm to the children, the Mother’s proposal is probably the best the Court can do. Despite the Court’s reservations about the paternal grandparents, as previously mentioned in these reasons, the Mother is being pragmatic. She clearly wants to encourage the children’s relationship with him, but appreciates the absence of alternatives. She must be satisfied that the risk is adequately managed through supervision by the paternal grandparents. The Court records that it has considered the possibility that the Father does not accept these Orders and walks away, or that these Orders break down over supervision issues. As things presently stand, however, no contact presents the children with less risk than unsupervised contact.
Other considerations
Whilst this case is determined primarily with regard to risk-of-harm issues, the additional considerations contained within s.60CC of the Act are, of course, relevant, and can be dealt with briefly. Y and Z have expressed the desire to spend more time with their father, but the weight to be given to this needs to reflect the risk issues in this case. The children have good relationships with the parents and, indeed, it would seem with the paternal grandparents. The Mother has made most of the decisions in relation to the children for many years now. To the extent that the Father has been excluded, it is understandable in view of the evidence. Until the Father’s employment at the (employer omitted) ended in 2015, he was meeting his child support obligations. He is in substantial arrears now. The Mother bears almost all of the costs pertaining to the children.
The Orders that the Court has made will result in minimal change in the children’s lives. This is necessitated by the risk-of-harm issues. There are no issues of practical difficulty and expense. There are no issues about the Mother’s capacity to provide for the children. There are serious issues about the Father’s capacity to provide for the children, even on a short-term basis. There are no issues about the Mother’s attitudes to the children and to the responsibilities of parenthood. The Court has rejected the Father’s contention that she has, somehow, not supported his relationship with them. The Father’s attitudes to the children and to his responsibilities as a parent are distorted by the mental health issues that he confronts. Two AVO’s have been made. The Father has been violent. It is possible that the order that the Court proposes to make may lead to further proceedings. The Father may appeal. Hopefully, after the Father has undertaken successfully psychotherapy he will apply to the Court to extend his time with the children. That is a far better alternative than to somehow anticipate improvements in his mental health, and formulate Orders accordingly, at the present time.
Parental Responsibility
The statutory presumption of equal-shared parental responsibility does not apply in this case. There is a risk of harm to the children. There has been violence. The parents cannot communicate. The Father’s mental health condition precludes him from being able to participate constructively in decision-making relating to the children.
The order for sole parental responsibility proposed by the Mother is in the children’s best interests in this case. In the Independent Children’s Lawyer’s Minute, a number of Orders are proposed about parental communication (specifically, Orders 11 and 12). These Orders are appropriate.
The Independent Children’s Lawyer proposed an order that the parents be entitled to attend all events involving the children including sporting fixtures, extracurricular activities, and appropriate school functions. This is not an order proposed by the Mother. The Court believes it is not an appropriate order to make in a case such as this where it has such concerns about the Father’s mental health and the risk of harm to the children.
Conclusion
This is a sad and tragic case. Dr S was probably correct in asserting at page 11 of his report that “one aspect of this enormous tragedy is that all of this has occurred as a result of serious mental conditions that could have been treated more comprehensively”. It is probably not too late, but for present purposes the main need for these children is to be protected from the risk of harm that their father presents to them, whilst at the same time seeking to facilitate his relationship with them in a supervised environment.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 28 January 2016
Schedule One
Minute of Order proposed by the Independent Children’s Lawyer
- That the Mother have sole Parental Responsibility for the children of the marriage, namely X born (omitted) 2000 (‘X’), Y (‘Y’) born (omitted) 2005 and Z (‘Z’)born (omitted) 2007.
- That the children live with the mother.
- That the child, X spend time with and communicate with the father in accordance with X’s wishes.
- That the children Y and Z spend time with the father as follows:
a.From 11am to 6pm on alternate Saturdays, supervised by the paternal grandparents, Ms B and Mr A or the paternal Aunt Ms C; provided that the paternal grandparents and aunt have provided undertakings to the Court acknowledging that they will supervise the father’s time with the children and ensure that he is in the presence of one or the other of them at all times whilst the children are in his care.
b.Upon the father completing 12 months of Dialectic Behavioural Therapy, and providing a letter from his therapist certifying such treatment to the Mother, the children’s time with the father shall be unsupervised from 1pm to 3pm
c.Such other time that the parties may agree in writing, to include text message or email.
That the Father spend time with the children supervised by the paternal grandparents or aunt on special occasions as agreed, but failing agreement as follows:
a.On Y and Z’s birthday and the Father’s birthday from 3pm to 6pm;
b.On Father’s Day from 9.00am to 5.00pm
c.On Christmas Day for a period of 3 hours at times agreed and in lieu of agreement then from 3pm to 6pm
d.Provided that the Paternal Grandparents and Aunt have provided undertakings as provided for in Order 4 above.
- That for the purpose of Order 3, 4 and 5:
- The Father is restrained from consuming alcohol or illicit drugs within 48 hours of spending time with the children or whilst they are spending time with him.
- That for the purposes of change-over of the children Y and Z, the parties will attend at the paternal grandparent’s residence for the return and collection of the children.
- That should the Father relapse into heavy alcohol use, that the time that he spends with the children shall be suspended until he is able to undergo psychiatric evaluation and arrange a report from his psychiatrist to indicate that there is no risk to the children in seeing the father and provide such report to the Mother.
- That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
- That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the children and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children.
- That each parent be entitled to attend all events involving the children including, but not limited to;-
a.sporting fixtures;
b.extra curricular activities that allow for parental attendance or participation;
c.school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parties.
Orders for parental communication:
- That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-
- any medical problems or illness suffered by the children, whilst in the care of the Father;
- any medication that has been prescribed for the children;
- any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
- the residential address of the Father;
- the telephone contact number of the Father;
- any other matter relevant to the welfare of the children.
- That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-
- any serious medical problems or serious illness suffered by the children, whilst in the care of the Mother;
- any medication that has been prescribed for the children;
- any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
- the residential address of the Mother;
- the telephone contact number of the Mother’
- That the father do all such things so as to engage in Anger Management Counselling and Dialectic Behavioural Therapy within 3 months of the date of these Orders, so as to address issues raised in the Report of Dr C dated 13 April 2014 and that a copy of that Report and the Report of Dr S dated 28 February 2015 be released to his therapist.
- That the father is to continue to accept treatment from Dr A, or such other psychiatrist as Dr A recommends, and follow all recommendations of his treating psychiatrist, including taking all medication at the prescribed dose.
Minute of Order proposed by Applicant Mother
INTERIM ORDER PROPOSED BY THE APPLICANT MOTHER
That pending further Order the children X born (omitted) 2000 ("X") Y born (omitted) 2005 ("Y") and Z born (omitted) 2007 ("Z") spend no time with the Respondent Father until the following has occurred :
a.The paternal grandparent enter into an undertaking with the Court acknowledging the obligations imposed on them in supervising the children ; and
b.The father has commenced Dialectical Behavioural Therapy Treatment with a suitably qualified psychiatrist and provides written evidence to the ICL of having commenced such therapy.
MINUTE OF FINAL ORDERS PROPOSED BY THE APPLICANT MOTHER.
That the Applicant Mother have sole parental responsibility for the children
That the children live with the mother.
That subject to Order 1, the child X spend time with his father in accordance with the child's express wishes.
That subject to the father complying with Order 1, the father spend supervised time with Y and Z as follows:
a.Supervised from 11.00am until 6.00pm each alternate Saturday and such time is to be supervised by the paternal grandparents Ms B and Mr A; and
b.At other times as agreed between the parties.
That the children spend supervised time with the Respondent Father on special occasions as follows:
a.On Father's Day from 10.00 am until 4.00pm each year; and
b.From 1.00 pm until 4 .00 pm on Christmas Day each year.
That for the purpose of changeover the parties will meet at the paternal grandparent's home for the return and collection of the children.
That the father be restrained from discussing any Court Orders and or Court proceedings with the children.
That the father undertake an Anger Management Course within 3 months of these Orders and provide to the solicitor for the mother and the Independent Children's Lawyer evidence of attendance and completion of the course.
10.That the father engage in Dialectical Behavioural Therapy Treatment with a suitably qualified psychologist and/or psychiatrist for a period of 24 months or longer as recommended by his treating psychiatrist to address his emotional regulation difficulties and the impact on his behaviour of his diagnosis of Borderline Personality Disorder.
11.That the father engage and complete a Post Separation Parenting Course within 6 months of these Orders and provide written evidence of satisfactory completion to the solicitor for the mother and the Independent Children's Lawyer.
12.That for the purposes of time in Order 5.1 such time be supervised by the paternal grandparents Mr A and Ms B and time take place at their residence or such other venue as agreed with the mother.
13.That the paternal grandparents sign Undertakings detailing the nature of their supervision and circumstances of suspension of the father's time.
14.That the father be restrained from consuming any alcohol during periods of time he spends with the children and for a period of 12 hours before such time is scheduled to commence with the children.
15.That the father be restrained from consuming or being under the influence or any illegal drugs during any time that the children are in his care or for the preceding twelve hours and shall immediately removing the children from the presence of any other person who is under the influence of illegal drugs.
16.That both parties are restrained from denigrating the other parent or denigrating these proceedings in the presence or hearing of the children or in a manner which causes it to be brought to the children's attention.
17.That if the father relapses into the use of alcohol and as a consequence places the children at significant risk of harm then all time between him and the children be suspended pending the provision of a psychiatric report from his treating psychiatrist that outlines that the psychiatrist has formed the opinion that the father is stable and no longer poses a significant risk of harm to the children.
Minute of Order proposed by Respondent Father
The eldest of the three children, X, is 15 and is at liberty to decide the time he spends with the Father. The Court is not requested to provide direction in regard to X.
The following requested Orders apply to the ‘younger children’, Y aged 10 years and Z aged 8 years.
The Mother will make the children available to spend core proscribed time with the Father for a period of 24 hours each weekend, and 52 weeks per year. The overnight portion of this time will primarily be spent at the Father's residence in (omitted), sleeping in the dedicated children's bedroom, unless an overnight excursion has been pre-arranged.
This core proscribed time is inviolable and enforceable by a police officer, should the Mother attempt to contravene, unless the police have strong observational reason to demur.
In addition to core proscribed time, The Father is at liberty to take the children for a block period of up to six (6) nights, for a maximum eight (8) times per year on vacation or full weekend (two night) excursions, if the children are agreeable to such times; that is, I do not request to take the children if it is clearly against their wishes and these being put to me by either child in isolation from the mother's physical and aural presence.
Should either of the younger children at any time express a wish to spend additional nights with the Father, the Mother must communicate her consent or denial in a written hardcopy to the Father, who will respond in kind. Each parent is to retain a hardcopy of their letter and the other parent's letter. If there is disagreement over the issue, a dispute resolution conference will be arranged by the Father at the Family Relationship Centre, or similar service provider. Attendance by both parents to the earliest available booking time shall be mandatory. Should one parent fail to attend, the arrangement described in the letter of the attending parent shall augment the core proscribed time accordingly, and continue as long as the child/children wish. This additional contact time shall be deemed enforceable as described in point 2.
The Mother will not prevent the younger children from contacting the Father by telephone between the hours of 7 a.m. and 8:30 p.m. seven days per week, continuing, nor shall she listen in on these conversations or be present in or near the room or that part of the house in which the children are using the telephone.
Mother to refrain from discouraging or prohibiting participation in outings/activities with the father by denigration or exaggeration of risks.
An Officer from the local Police shall be required by the Court, to enforce the Mother's obligation to allow the younger children to telephone the Father and participate in recreational or educational activities such as, school work and music tutelage at the Father's residence, bushwalks, fishing, and so forth. Such events shall not require any prior notice from the children to the mother to be deemed enforceable.
Activities additional to the core proscribed time shall be sensibly scheduled for completion before or close to 7:30 pm, and the children returned to the Mother's residence in accordance with such scheduling unless mutual agreement between the Mother and Father has been established prior to commencement of said activity.
10.Mother to provide details of all routine dental, optical and medical visits/procedures within two (2) weeks of visit having being completed, and ensure copies of school reports are provided to the Father.
11.Mother to contact Father Immediately in the event of an emergency/accident.
12.Mother shall not relocate without notice and without valid reason.
13.Mother to inform Father at least six (6) weeks prior to any planned or scheduled major dental, orthodontic, ophthalmological or medical procedures and treatments. This shall also extend to mental health issues, perceived or diagnosed, where psychologist and/or psychiatrist consultation is being considered /planned.
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