Franic and Como
[2014] FCCA 1137
•8 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRANIC & COMO | [2014] FCCA 1137 |
| Catchwords: FAMILY LAW – Parenting – no contact. |
| Legislation: Family Law Act 1975 ss.60CC, 68B, 68C |
| M & M (1988) 166 CLR B & B [1988] HCA 66 |
| Applicant: | MR FRANIC |
| Respondent: | MS COMO |
| File Number: | SYC 4801 of 2011 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 5, 6, 7 and 8 May 2014 |
| Date of Last Submission: | 8 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Saw |
| Solicitors for the Applicant: | David H Cohen & Co |
| Counsel for the Respondent: | Ms Lawson |
| Solicitors for the Respondent: | Batey's Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children’s Lawyer: | Kathryn Renshal Lawyer |
ORDERS
The mother have sole parental responsibility for the child [X] born …2011.
The child live with the mother.
Pursuant to section 68B of the Family Law Act, the father, Mr Franic, is restrained from spending time with or communicating with stalking, molesting, harassing or otherwise interfering with the mother and or [X], approaching the mother and/or [X] at any place of residence, education or extracurricular activity they may attend from time-to-time.
The restraint on communicating or attempting to communicate with includes by any means whatsoever including but not limited to telephone, email, SMS, letter or via social networking sites or via a third party, save for a legal representative.
Pursuant to section 68C of the Family Law Act, where a police officer believes on reasonable grounds that the father, Mr Franic, has breached the injunctions provided for in order 3 and 4 herein by any means a police officer may arrest the father without warrant.
Twice a year at around [X]’s birthday and at Christmas, the father is permitted to send the child a gift, a card and a photo of the father and/or his family by forwarding same to a PO Box nominated by the mother via her legal representative within 14 days.
The mother is at liberty to inspect the card and gift and photograph provided by the father and is entitled to use her discretion as to whether she gives those items to the child.
The father and mother may each provide a copy of this judgment to any treating health professional they attend or that the child attends.
IT IS NOTED that publication of this judgment under the pseudonym Franic & Como is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4801 of 2011
| MR FRANIC |
Applicant
And
| MS COMO |
Respondent
REASONS FOR JUDGMENT
This is a final hearing concerning the parenting arrangements for the child, [X], born …2011.
The mother who was the respondent, sought orders that the father spend no time with the child or communicate with she and the child; the child live with her; she have sole parental responsibility; and additionally sought an order under section 68B of the Family Law Act for her and the child’s personal protection from the father. The mother’s position was supported by the Independent Children’s Lawyer and also the family consultant who prepared a report.
The father who is the applicant, sought orders when the hearing commenced for a regime of time unsupervised to commence immediately, extending to alternate weekends, holidays and the like.
The father amended that application during the hearing and the orders he now seeks are contained in Father’s Exhibit 2 where he conceded sole parental responsibility to the mother; the child live with the mother; he be kept informed about decisions the mother made in respect of the child; that he spend unsupervised time with the child, 9.30am to 5pm every second Saturday, with changeover to occur at a supervised contact centre and other such times as agreed; telephone communication; that parents be able to attend the child’s sporting events and other extracurricular activities; they inform each other of their residential address and they keep each other informed about the child.
In submissions, the father asserted that, should I be concerned about ordering unsupervised time immediately with the child and father the current supervision continue; that the father continue to attend upon his psychiatrist, Dr A; that the father attend upon any psychologist Dr A recommended he attend; and that the matter either come back in 12 months or within 12 months at which time the father would agitate for a regime of graduated unsupervised time with the child.
After hearing the evidence of the mother and father, the family consultant, reading all the subpoenaed material in the many exhibits tendered, I have formed the view that the only order the Court can make, if I am to make an order in [X]’s best interest, is that contended for by the mother, supported by the Independent Children’s Lawyer and family consultant, namely, the father spend no time with nor communicate with the mother and child.
This decision is based upon the evidence and findings which now follow.
The father was represented by Ms Saw of Counsel. The respondent mother by Ms Lawson of Counsel and the child by Ms Reynolds of Counsel.
The evidence before the Court was as follows.
For the father.
a)Amended initiating application filed 30 April 2014.
b)Affidavits sworn 8 August 2011 and 10 August 2012 and a trial affidavit filed 29 April 2014.
c)The father did not rely upon the affidavits of his friends Mr B or Ms C.
The father tendered the following exhibits.
a)Father’s Exhibit 1, notes of the Suburb D Clinic, a clinic where Dr A, his current and asserted treating psychiatrist practices.
b)Father’s Exhibit 2, minute of orders sought during.
c)Father’s Exhibit 3, notes from the Sydney Children’s Contact Service, Catholic Care and Suburb E Contact Service.
d)Father’s Exhibit 4, three certificates of completion of courses by the father, namely, 1-2-3 Magic and Emotion Coaching, Triple P parenting certificate, and a letter that the father attended five out of six sessions of the Relationships Australia course, Parenting After Separation.
e)Father’s Exhibit 5, further notes from the Sydney Children’s Contact Service.
The father was cross-examined.
The mother’s material.
a)Amended response filed 2 December 2013.
b)Trial affidavits of 6 March 2014.
c)Affidavit of Ms F, her niece. Ms F was cross-examined.
d)The affidavit of Mr G, the mother’s friend, was not read.
The family report of Ms H, family consultant, became Court Exhibit 1.
The mother’s tenders were as follows.
a)Mother’s Exhibit 1, a report on the health of the child, [X], from his medical practitioner dated 3 May 2014. This was obtained by the mother in response to the father’s assertions that the child had a form of cerebral palsy, exhibited symptoms of global developmental delay, had a turned foot, and needed medical attention. This report is as follows:
I am a registered general practitioner and known the child for three years –
that is effectively from his birth.
I examined him today and found his developmental milestone was normal. His receptive and expressive language skills are age-appropriate. I found no evidence of developmental delay. He has mild physiological knock-knee which explains the toe turning slightly inward when he walks. The natural history of physiologic knock-knees is spontaneous improvement between age 4 and 7.
This report quells any doubts that the child needed medical attention or that the mother was not attending appropriately to his medical needs as he has none to be attended too.
b)Mother’s Exhibit 2, a letter from the mother’s lawyers requiring Dr A to be available for cross-examination. This did not occur.
c)Mother’s Exhibit 3, bundle of documents produced by Dr J who the father was referred to in relation to his breach of AVO charges and general and poor behaviour in 2011.
d)Mother’s Exhibit 4, subpoenaed material from the Suburb K Neighbourhood Centre, which Centre the father attended in 2012.
e)Mother’s Exhibit 5, the father’s criminal history and COPS entries. The father has a criminal history going back to 1993 when he was the person of interest in the first Apprehended Domestic Violence Order taken out against him.
f)Mother’s Exhibit 6, notes from Mr K, psychotherapist that the father attended for 6 years.
g)Mother’s Exhibit 7, notes from the Suburb L Repatriation General Hospital.
h)Mother’s Exhibit 8, Catholic Care Children’s Contact Centre intake assessment in relation to the parents using that service to enable the father to spend supervised time with the child.
i)Mother’s Exhibit 9, records of the Suburb M Hospital Community Health.
j)Mother’s Exhibit 10, a letter from Suburb N Community Health to solicitors then acting for the father in May 2012, a Mr O , reporting on the father’s then mental health and functioning.
The Independent Children’s Lawyer tendered one exhibit which was a list of questions to Dr A and his response. The questions are contained in a letter dated 18 October 2013 and the response from Dr A is contained in a letter of 19 December 2013.
The father has a significant and troubled history of mental illness. That of itself is not the main inquiry for this Court. What the inquiry for this Court is, is the consequences on the behaviour of the father from his mental health issues and, of course, most importantly, the impact and consequences of that behaviour on others, being the mother and primarily the child, [X].
At the commencement of the hearing, the father sought an adjournment on the basis that his medical evidence was not appropriate and he did not have a report from his treating psychiatrist.
That application was opposed by the mother and the ICL. I refused to grant the adjournment on the following basis.
The father obtained an adjournment of his then final hearing in June 2013 when he was not represented and had issue with legal aid. He was well aware at that time that the impact of his mental health upon his behaviour was at the heart of this matter as the family report had been released in March 2013 and had raised that as a significant issue for determination.
The father is represented and has been since at least late last year. He has had since June 2013 to obtain a report from a treating psychiatrist to address this issue and had failed to do so within a time of 11 months for no good or reasonable reason I could discern.
The father knew well before the hearing he and not obtained this evidence yet waited until the first day to make his application for an adjournment in circumstances where he was legally aided and the mother was privately funding this litigation a matter he again well knew.
I formed the view that the continuations of these proceedings would have a detrimental impact upon [X] as his mother was already under severe financial stress having taken out a loan to fund her litigation and was receiving no child support from the father as he is a disability support pensioner.
A continuation of the matter would further stress this overburdened mother and this factor would negatively impact upon her parenting capacity and [X] and the matter needed to be finally determined
This impact upon [X] is all the more concerning as the mother is a sole parent, [X] only having one functioning parent at this time.
Thus the application was refused.
The short facts are these.
The mother was born in 1971, as was the father. The parties met in …2009. They commenced dating about … of that year.
In …2010, the mother became pregnant and she miscarried.
Between May 2010 and August 2010 the mother asserts – and the father would agree – that the parties’ relationship was under significant strain.
The mother asserts the father’s behaviour was erratic, frantic and intimidating.
The parties physically separated in August 2010 on the mother case.
In …2010, the mother discovered she was pregnant with [X] and the parties attended counselling together.
…2010. The father attended a medical appointment with the mother regarding the pregnancy. The father alleges in his material that the mother would not let him come into the appointment with the obstetrician. That is simply not correct. That was the decision made by the obstetrician.
Mr G moved in with the mother in about …2010 and the father’s behaviour became even more erratic, intimidating and bordered on the reprehensible from that time.
The father attended the mother’s home uninvited on 29 October 2010.
By November 2010, the mother has formed the view the parties’ relationship is over and she became very scared of the father’s erratic behaviour and constant bombardment of text messages to which I will refer later.
On 3 January 2011, the police took out an AVO for the protection of the mother based upon information supplied by the father’s then psychologist, Mr K; that he had threatened to kill the mother who was pregnant with [X] to Mr K in a voice message.
The father was charged with breaches of AVO in February 2011.
[X] was born on …2011.
In May/June 2011, there is an incident between the father and Ms F, the mother’s niece, which I will refer to later.
The father pays little head to the AVO and there are countless breaches by him. The mother only reports some of them.
The father appeared in court in September 2011 in relation to breaches of the AVO against not only the mother but also the father’s prior psychologist, Mr K to whom he had also made a death threat on the telephone. Mr K also obtained an AVO against the father.
Supervised time is ordered or agreed to occur at the Suburb P Children’s Contact Centre and the father missed a contact session in May 2012.
The father did not attend the Child Dispute Conference on 8 June 2012.
On 8 June 2012, Suburb P Children’s Contact Centre ceased all further appointments as the father had not paid the appropriate fees.
The parties attend Catholic Care for a continuation of supervised time with the father and the child.
The mother asserts that the child was having extremely adverse reactions to spending time with the father and or being separated from her in 2012 and 2013. That upon return to her he was clingy, crying, not eating, having nightmares, not sleeping and very unsettled.
The father continues to harass the mother with text messages despite the AVO orders and injunctive orders made by this Court on 29 November 2011 that he was not to communicate with the mother. The AVO had expired in April 2012 however the mother still had and has the benefit of this Court’s injunctive orders for no communication.
On 15 March 2012, the father sent an SMS to the mother. On 6 May 2012, he sent an SMS to the mother. The parties ran into each other in Suburb K on about 21 September 2012. He sent the mother an unsolicited email on 25 September 2012 and on 24 December 2012, he sends another threatening SMS to the mother. The father continued to breach injunctive orders up to December 2012.
On 10 November 2012, the mother saw the father taking photographs of she and [X] as they arrived at the contact centre and upon them leaving the contact centre. The mother, upon viewing the contact centre notes later in the subpoena material, realised that this was the day that the father made much fuss of having lost his phone. The mother had complained to the workers at the contact centre of this photography which is a breach of the agreement parties enter into when they use a contact centre. This could not be checked as the father said he had lost his phone.
The mother believed then and continues to believe that the father will simply disobey court orders as and when it suits him and particularly if he consumes alcohol.
The father’s recounting of his distressing history and poor mental health was extremely difficult to follow. The father made speeches. He was not responsive to questions. He sought to explain and justify many of his behaviours.
The father had extreme difficulty in listening to the disgusting SMS messages he sent to the mother in 2010 and 2011. He continually referred to matters not being how he intended things to be. He was unable, at any level, to understand the devastating impact upon the mother and her emotional functioning from his appalling behaviour and treatment towards her and was absorbed with himself, his own needs and his most unrealistic view of the world.
Having said that, it is clear, from the contact service notes from Suburb E, that [X] has been enjoying his time with his father, that his father acts appropriately with him at the contact centre, engages well, is age appropriate and has in no way sought to harm the child, engage the child or behave in any manner which the contact service are concerned about. Thus, the father has a capacity to behave appropriately.
The mother’s case is this. Whilst the father is under supervision of a contact centre, his behaviours and his emotions can be contained. However, that cannot be said of him in an unsupervised setting.
The issue of ongoing supervision is one that the family consultant dealt with in her report. Paragraph 81:
In the event [X] were to continue to spend time with his father at a supervised contact centre, the potential benefits might be to help create a thread of an awareness of and form a connection between [X] and his father.
This report was released on 20 March 2013. Those words have come true. [X] does have a sense of his father and there is a thread of connection and positive experience of his father and knowledge about kinship ties.
The family consultant went on to say that for a variety of reasons, professionally supervised contact is not a long term solution. [X] has been spending supervised time with his father since 2012, with some gaps but for a period of two years.
Ms H further reported:
In light of Mr Franic’s emotional fragilities and Ms Como’s belief that the father has nothing to offer [X], it is difficult to see how [X] could manage to establish any type of relationship with his father without being placed in an emotionally damaging situation and being exposed to unresolved, deeply entrenched conflict, tension and hostility.
The continuation of supervised time is not an option the family consultant favoured nor did the ICL. This is a final hearing and I adopt the family consultant’s position, which is supported by the Independent Children’s Lawyer, that long term supervision is not appropriate.
The father has just had a relationship break up of a relationship of some 11 months. He is effectively homeless. He does not have secure accommodation. He was evicted from premises in 2008, evicted from premises in 2012 and is now living in a motel paid for by disability support which is a short term temporary arrangement. He does not have any long term accommodation at present and is on a waiting list.
He is supported by a disability pension and says he is an …employment. He is financially impecunious and has unstable and uncertain housing. This, coupled with his clear emotional fragility and mental health issues, is a very difficult situation for not only the father to deal with but particularly for the mother and the Court who must have confidence that the child would be safe when spending unsupervised time with the father.
This concern of safety for the child in an unsupervised setting is further heightened when one sees in depth the behaviour the father engaged in during the relationship and post separation.
The father said he has done a lot of work on himself, he is much better than he was, he is coping now. For example, his relationship with Ms R has broken down, he is going through these proceedings, yet he has not behaved poorly or lost the plot or carried on in any way, unlike when he and the mother’s relationship broke down.
He says he attends Dr A. He speaks openly and freely with him about his position. It was suggested in January 2013 that he take some antidepressants. He didn’t at that stage but he has decided, in January 2014, to go on antidepressants, at a low dose of 30 milligrams. The father said he made the decision to go on that drug not Dr A. This is despite Dr A saying in letters in May 2013 that would have been helpful for the father to have taken some medication at that time.
The father agreed that if the mother was upset that this would have a negative impact upon his child.
He agreed that if the mother was unhappy, that would be transferred to the child as a negative. If the mother was happy, that would be transferred to the child as a positive. The father believed that his mental health functioning now was at a stage that it was not a problem for him and, therefore, would not be an obstacle to him seeing his child.
However, it became clear that the father has not been open and honest with his treating medical professionals or the Court about his prior mental health functioning and what he has done to address his significant issues.
The father did not disclose, at any stage in his affidavit material filed in 2011 or his trial affidavit, the significant mental health issues he has suffered from. He has been taken to hospital on no less than seven occasions by either police or the mental health team. He has had five AVO’s taken out against him , two against his own mother, two against this mother and one against his treating psychologist Mr K together with beaches of AVO’s.
The father’s trial affidavit is a concern. It discloses little about him or his current dire living circumstances yet speaks for some five pages about the mother’s friend, Mr G and the mother’s relationship with him in the past and continuing. The father denied he was obsessed with Mr G, however, paragraphs 4 to 11, 23, 25, 28, 29, 31 and 32 all refer to Mr G. Mr G is irrelevant to these proceedings. There are some paragraphs at the end of the affidavit where the father speaks of the time he spends with his son. There is no mention of the professional therapeutic intervention he has or is engaged in and the reality is that he does not engage in any therapeutic intervention.
He saw Dr A for the purposes of these proceedings not for treatment or therapy. The father does not believe he needs any ongoing treatment or therapy because as he told me he had done a lot of work on himself by himself and is doing really quite well now.
I have found that the father lied to the Court on several important issues which is not surprising as the father either lies to himself about his current situation and state of health or is out of touch with reality. Whatever the cause, the result is the same he has no idea of his state of mental ill health and the impact of that upon his behaviour and those who come into contact with him. The father lives at one level in a parallel universe to the mother and child and the rest of society.
The father said to Ms Lawson that he did not see himself as a danger to [X] in 2011 or 2012. That he was asking the Court to lift the order for supervision on 20 January 2012 because he thought the order for supervision was unnecessary. The father believed he could be a father to the child and it was simply improper that he had these orders for supervision. He told the Court that when he saw Ms H on 25 February 2013, he was honest with her because he knew it was a big day and he was going to see his son.
He told the Court he was accurate and accurately reported his history to her. He said he had done the same with his psychiatrist, Dr A and was open, honest and forthright. Page 31 of the family report:
Mr Franic is adamant he is no risk to [X] or Ms Como. He feels strongly he requires no supervision or assistance when [X] is with him; he has no history of dangerous behaviour, and expressed some disbelief that his mental health had been brought up as an issue in the dispute. Mr Franic asserts that the mother has intentionally used and exaggerated his history of depression to her advantage in these proceedings to try and exclude him from [X]’s life.
Paragraph 32:
Mr Franic said whilst various mental health professionals have suggested that he might suffer bipolar disorder, borderline personality disorder or schizophrenia, as far as he is aware, he has only ever received a diagnosis of major depressive illness and anxiety and his current depressive state is exacerbated by stress arising from financial hardship, legal battles over [X] and not being able to see him. He is not being presently prescribed medication and he tries to manage his mental health by venting to friends, reading and doing yoga. He does not feel at this time that he needs therapeutic support and his past negative experiences of therapists, Mr K, have made him less trusting of psychologists, psychiatrists and doubtful about the benefits of engaging with them.
The father said in Court that to assist in current Court proceedings, he consulted with a private psychiatrist, Dr A. Dr A has provided him with a referral for psychological services and the father went to see a Mr S at …Psychological Services.
Mr S wrote a letter to Dr A as follows on 25 May 2013. This comes from Father’s Exhibit 1:
Thank you for referring Mr Franic to …Psychology. I conducted an initial session with Mr Franic on 24 May 2013 in which he described symptoms consistent with adjustment disorder in relation to relationship difficulties. Mr Franic appeared to be ambivalent about addressing his difficulties in therapy. In particular, he expressed reservations about therapy trust issues. Mr Franic did not make any further appointments but stated he would phone …Psychology should he wish to engage further in therapy.
The family consultant reports at paragraph 33 that from the information she had read:
Mr Franic may also have experienced past problems with binge drinking and gambling and has been a regular cannabis smoker. When questioned Mr Franic said these are not current issues that the Court need be concerned about.
In Father’s Exhibit 1, the Suburb D Clinic notes is a document headed referred patient assessment and management plan and dated 13 February 2013. The document is signed on the third page by Dr A and thus I find this a report completed by Dr A from information supplied by the father.
Thus the father had seen Dr A shortly before he came to speak to the family consultant on 25 February 2013.
This is what Mr Franic tells Dr A, in Father’s Exhibit 1:
Thanks for referring this 42-year old man with a history of being in a custody battle at the moment. He is unable to see his child as he’s mentally ill. He says his life has now fallen apart. He says he has previously diagnosed with schizophrenia – also told he does not have that diagnosis and was just doped up on Valium. He has been locked in a Family Court battle. His mood has been low. He had a psychologist who rang the police when he texted messaged him that he would kill his girlfriend. She had moved an ex-boyfriend into her bed. There was then an AVO and went to …Jail. He says he’s never been violent to anyone in his life. He’s currently depressed most of the time most of the day. Not irrational or illogical. He continues to see his friends, he enjoys fishing and …hobbies. His sleep is disrupted. His appetite’s low, he has lost 12 kilos. His memory and concentration are all right. He has not had any recent suicidal thoughts. Denied auditory hallucinations or persecutory delusions. Denies periods of mania, hyper-mania. He described panic attacks a long time ago.
That is not the description Mr Franic gave to the family consultant of his current functioning:
Does not feel at this point in time he needs therapeutic support.
However, most importantly on page 2:
Alcohol substance abuse. Drinks twice per week, binges. Alcohol abuse?
That is inconsistent with what he told the family consultant that:
drinking and gambling, are not current issues the Court needed to be concerned about.
However, he told Dr A not one week prior to this comment that he drinks alcohol twice a week and binge drinks. The words Alcohol Abuse were recorded by Dr A. Mr Franic is not an accurate historian and will not honestly face up to the difficulties he has and until he does, his recovery is not at all assured.
Despite the father believing that he is not seeing his child unsupervised because he is mentally ill this is not the case. He is not seeing his child unsupervised because of his behaviour and the risk of harm to the child from that behaviour.
It was clear from the father’s behaviour in the witness box that when his mental health issues and /or his poor behaviour were brought up, he became very defensive. He did not like to discuss these matters or answer questions. He could not even comment upon his behaviour or what he has learnt in any meaningful sense. His words “I have learnt many lessons” were vague and not at all specific. He could barely tolerate listening to Ms Lawson read out the text messages he sent to the mother of his, at that time, unborn child.
The mother has not intentionally exaggerated any of the father’s behaviours to any health professional, any lawyer, any Court or the family consultant. The father’s behaviours are exactly as the mother has described them and I will refer to those behaviours later. The father had described himself in the family consultant’s report at paragraph 13:
He’s not violent, aggressive in any shape or form and that peace, love and mung beans is his mantra. People who know him, such as Mr K and the mother should know what I’m like and he has no propensity to hurt anybody.
That evidence is inconsistent with the person who sent to the mother via Mr K a death threat to kill the mother when pregnant with [X]. That evidence is inconsistent with the person who sent to a voice message to Mr K sometime later that he was going to kill him as well.
The father’s view of himself does not accord with the reality and until the father understands and accepts the type of person he is, and the impact of his behaviour upon people he may never become well.
The father was asked why he now only sought daytime contact and not overnight time which had been his application since the proceedings commenced in 2011.
He made perhaps the most insightful comment in the entire proceedings:
It would be easier for the mother to accept if I was only spending daytime with the child and I would hope we could move forward to overnight time and then I can come back to Court.
I hoped we would be able to resolve things and I need to be fluid.
I don’t need to do anything before unsupervised daytime commences. I am fine with my child.
That wish does not take account of the reality. The mother will not speak to him or communicate with him directly in any form. There is no communication between these parents and for the father to say that things could be resolved indicates he either is out of touch with reality or, sees matters only from his perspective and no one else’s.
The father’s lack of understanding why the Court may be hesitant to order unsupervised contact is alarming given his clear mental illness and failure to obtain ongoing therapeutic help to retrieve his functioning when the following evidence is revealed.
I will read onto the record some of the vile e-mails and text messages the father sent to this mother and set out at page 19, paragraph 92 of the mother’s trial affidavit. Under cross-examination the mother was not shaken that these were the messages he sent her.
From November 2010 to February 2011 his messages became increasing demeaning, misogynistic and obscene and caused me a great deal of distress when I received them and again during labour in the days following [X]’s birth.
For example on October 2010:
He’s going to keep ducking you till there’s no cum left and then what’s going to happen and you will want to talk to me.
The word “ducking” is the father’s word for “fucking”. The word “cum” means semen and he’s referring to Mr G, the person he has some degree of obsession with.
Send me details.
Stop sucking, get rid of the come and send details.
She doesn’t know who the father is it’s disgusting.
She knows who it is, she’s sleeping next to him. Disgusting. I know its not mine. I feel it in my gut. I know it in my gut. Tell the truth please.
The father was of the view the child was not his and was the mother and Mr G’s child. He prevaricated between believing the child, was his to not believing this. Upon [X]’s birth he accepted the child was his as he recognised some of his features in his son.
Some of these messages are received at 1.22 am in the morning:
At least you won't have problems giving birth. I’ve never seen a pussy that big. It made me sick. I hated screwing you as I knew there’d been hundreds of others. Feel dirty and violated? Think about it, trailer trash. Blow Mr G for me. Its his fault.
Mr G is the father’s nickname for Mr G, the mother’s partner and friend at that time.
Nothing to do with you. She has another’s child in her and has no problem putting other’s cock next to it. No morals at all.
8.19 in the morning of 7 December 2010:
When he slides his dick in you, make sure he’s careful not to hurt the child. I know you like it rough. Just wait till you can do the football team after its born.
There were 9 text messages received on 13 January 2011.
I know it’s not my child, lying slut. How big can you make your dirty pussy, lying slut.
Your cunt’s the most horrid I’ve even seen. Hundreds have been through it. Foul.
Whose child is it? You don’t know. Dirty slut.
Thousands have been through your worn out pussy. That’s why you smelt like you did. Dirty. Your pussy stank because you were with so many people. It was your choice. You stank from the residue. Learn how to clean yourself. Lying whore. If you’re going to be whore, learn how to clean yourself. Lying slut.
Then in bold, which is shouting:
I like Mr B’s idea. We all get together at the birth, throw 100 each in the pot. Winner it takes all – got to laugh, it’s a funny situation.
From paragraph 87, page 46 to 60 of her affidavit the mother’s evidence is that during the period of 16 October 2010 to 25 December 2010 the mother received over 300 text messages at all hours of the day and night, at 5am, 12am, 3am, 9 in the morning and so on.
On 16 October 2010 she received 40 messages; 17 October, 10 messages; 28 October 2010, 108 messages; 29 October 2010, 36 messages; 10 November 2010, 40 text messages; 21 November 2010, 27 text messages.
Some of these messages are being sent between 5.15am and 5.16 am and the father is not sleeping.
On 7 December, 76 text messages; 10 December 2010, 44 messages; 11 December, 53 messages; 23 December, 67 messages. The messages all follow the same theme.
Its not mine.
She doesn’t know who the father is.
It’s mine.
She’s fucking someone else.
She is disgusting.
She’s a liar, tell the truth
Stinking filthy whore
The father harassed, harangued and barraged this woman who was pregnant with his child with the most disgusting, vile and nasty text messages. This behaviour cannot be totally excused by his poor mental health. The father knew what he was doing and he wanted to cause the maximum hurt and pain to the mother. He had no thought for his child. The father’s excuse was:
I was drunk. When I drink, that’s what I do. I don’t remember.
However, there are significant breaks between text messages. Sometimes a day, sometimes a week and the father must have looked at the text messages he had written and have felt remorse; yet, he did nothing about addressing this significant problem he had, either by, going to an alcoholics counsellor or by attending a psychologist or even sending an apology to the mother for his disgraceful behaviour. He just maintained the barrage of abuse towards her.
The father had a mantra of answers to this evidence which he found difficult to face and listen to. He said variously:
I don’t remember. I was under the influence of alcohol. I didn’t mean it. That was not my intention. I am sorry. If I could take it back I would. I have learnt a lot through this
He was very uncomfortable when this disgusting behaviour was put to him. The father rambled. When it became too much for him to accept what he had done, he rambled on with justifications and excuses and demonstrated no ownership of his issues and problems.
The father says his excuse for writing these messages was that he was horrified that, after he had moved out the mother moved Mr G straight in and into his bed. That the mother would not let him see the child. Would not give him any information about the child. Even if I accepted this conduct was an excuse for his behaviour, which I do not, the child was not born until …2011.
The child was born in …2011 and many messages were sent in 2010. At the time of these text messages the mother was pregnant, and the father could not see that his behaviour was having a negative impact upon his unborn child due to the distress the mother would have suffered from his disgraceful conduct.
The father said orally and in his affidavit that his behaviour was inappropriate. Ms Lawson said it was more than inappropriate, it was disgusting, vindictive and nasty. I accept that submission.
If the father believed the child was not his then why did he care? If he did believe the child was his why risk the health of his child by his treatment of the mother? These questions were put to the father and he could only answer in terms of how he was feeling and that he was not being told anything. This is a further example of his needs being paramount and overwhelming the needs of the mother and his child.
Ms Lawson asked the father “Even after the AVO was taken out you continued to send these vile messages why? His answer was “Yes, it was an extremely difficult time”. For who was it difficult? He made it difficult for the mother thus again his answer is concerned as to how he was coping, not the impact on the mother.
The father was apologetic to the mother in the witness box but this was not apparent in his affidavit at paragraph 19 where he criticised the mother and said “I do not believe Ms Como is a bad person and she has the capacity to be a good mother in time”. He could make no positive comments about her in his written material.
The mother may accept this apology or not. One difficulty is the apology is not backed up by an understanding of what he has done, nor has he taken appropriate steps to address his issues such as alcoholism and poor mental health with a professional person or group.
The father said, “Well, we were all under distress.” Question “Why were you under distress at this time?” Answer, “Because I could not see the child”. The child was not born in …2010.
The father said he was a patient person. He is not a patient person. He is erratic and demanding. He complained that the mother did not respond to him. This shows a total inability to understand the impact of his messages on the mother and is merely the father attempting to shift blame to the innocent.
The father said that they had also had nice conversations and said positive things, but that he had not kept those messages as he did not think this would come to a court case. I reject that evidence. The father abused the mother by the text messages and used whatever means he could to maximise the hurt and pain to her.
From reading paragraph 29 of the family report, it is clear the father tried to justify his behaviour to the family consultant. Mr Franic said:
He has felt hurt, angry and frustrated by Ms Como’s attitude and actions. He acknowledges, in response to their break-up, Ms Como’s pregnancy and [X]’s birth, he did not handle things well and made some mistakes.
I have no idea what Ms Como’s attitude and actions were to cause the adverse and destructive campaign the father engaged in.
The parties broke up. The mother left a man who was behaving poorly towards her, who had lost control, was mentally unstable and unwell and refused treatment. The mother was pregnant with their child, and all she was doing was protecting herself and her yet to be born child from the father. Mr G moving into her apartment was a protective act and no criticisms can be made against her. The father’s complaints were all about how he was feeling and the wrong he perceived had been done to him. No wrongs had been done to him. He was the perpetrator of wrong not the victim.
The best the father could do was to now acknowledge that he had sent Ms Como a number of inappropriate texts. They were more than inappropriate, they were disgusting. However, whilst he expressed remorse for his mistakes, he immediately launched into an explanation and/or justification of his behaviour each time for example.
He would say:
I am sorry. If I could I would take back what I did, I would. I know I can’t but I was acting in response to the mother’s or Mr G’s behaviour, things they had said to him, the mother denying me information about his son, not being able to spend time with his son…
I reject the honesty of his alleged remorse. The father was at pains to cover up and or excuse his disgraceful behaviour and still blames others for his actions.
The father agreed he could not control himself in 2010 and 2011. When you’re stressed, or “distressed” as he kept calling it, you can’t control yourself “when I’m under the influence of alcohol”. The father said that at this time he drank alcohol to excess, drank whatever he could yet this is no longer an issue the Court need be concerned with.
I disagree alcohol misuse by the father is not an issue for this Court. I have not seen one piece of evidence that he has attended any formal alcohol counselling service to address a significant and serious problem he had. Given Dr A’s record that in February 2013 he was drinking alcohol twice a week and binge drinking, I do not accept that the father has shaken off his problems with alcohol at all. Alcohol is still a risk for the father.
The mother’s affidavit is replete with her running into him or seeing him and him smelling of alcohol in 2010, 2011 and 2012.
At one point in the evidence, the father said he did accept that his behaviour at this time was to fulfil his needs and he was not thinking about others. However, immediately after saying this he began rambling in an attempt to explain and justify his actions as in some way being the fault of the mother.
The father said in evidence that, after the AVO was taken out, the mother sent a text message to him:
I still care for you. Let’s work it out.
That was a lie. The mother’s email to him on 2 September 2011 was:
Our relationship is over. You need help.
That would have been the time for the father to look at his behaviour, where he was at, and obtain help. He chose not to, and continues today to choose not to obtain help. He will only listen to people who, to use his words, “get him, understand him, are on the same page as him”. Although he denied this suggestion, I take this to mean people who do not challenge him, do not make him look at his actions do not try and make him responsible for his actions.
At paragraph 32 of his affidavit the father says:
In about …2011 I ran into Ms Como and Mr G in Suburb K, at about 11 am. They were returning rented DVDs. When we were in a relationship I had often done this after watching a DVD the night before.
I was extremely worried and upset. I had not been given any information about our child since about September 2010.
At this time the father was also denying the child was his and the child was not born until …2011:
I then sent several text messages to Ms Como and gave her an ultimatum that she, Mr G and I meet to resolve the issues between us for the benefit of the child. I told her I would be coming over to her apartment at 12 noon the next day to talk and sort things out. I made it clear I was not a violent person and just wished to talk things out. Ms Como did not reply. I rang a mutual friend to ask whether Mr G was still living with Ms Como. She confirmed he was. I went to Ms Como’s apartment at noon the next day. She did not answer the door. I returned at 9 pm.
What the father did is this. He sat outside the mother’s apartment for virtually the whole day and at night and he stalked her. He gave her an ultimatum in a text message to which she, quite properly, did not respond. He resiled from the use of the word “ultimatum” in his oral evidence, however I reject that evidence and I am certain he gave the mother an ultimatum.
He banged on the door for so long and loudly that another person in the apartment let him in. He was not invited to her home. He pushed himself into the mother’s apartment block demanding to know information. The father would not admit that that was his behaviour and stuck with the fantasy in his affidavit.
The father was so enraged and out of control he rang his counsellor Mr K and threatened to kill the mother. Mr K properly and in accordance with his professional obligation, informed the police of this death threat.
The police took out an AVO for the mother’s protection, she being unaware that this is the behaviour the father had engaged in. The father said he was only at her apartment block for 10 or 15 minutes. I reject that evidence. The mother’s version of events is the true version of events. He was stalking her. He stayed outside her house, banged on the door. When he did not get his way, he sent a message to his counsellor threatening to kill the mother.
The father’s explanation as to why he would send a text message to his counsellor threatening to kill the mother was, he wanted his counsellor to speak to him. His counsellor was not returning his calls. His counsellor had always returned his calls. He didn’t know that his counsellor had decided not to return calls so he sent this death threat, hoping the counsellor would respond. I reject that evidence. The father meant what he said at the time he wanted to cause the mother maximum grief. As Ms Lawson said, these concerning events came about because he saw the mother and Mr G returning a DVD at a shop in Suburb K that being something he and she and done.
The father then rambled on about Mr K. He said he was not really a counsellor but an occupational therapist and he saw him for 6 years as a friend and they would have a beer together. I have no idea what that evidence is relevant to.
The father cannot contend he is not violent. He is violent and he is aggressive when he does not get his own way. This is, again, a further example of the father’s view of the world not matching up with reality. He is totally unaware of the person he presents to be.
The father was very angry with Mr K. He believed then and continues to believe today he breached the father’s confidence. If he was not his psychological therapist then he did not breach a confidence.
The father was so angry at Mr K he made a death threat to him via voice message and Mr K had an AVO taken out for his protection. Yet Mr K agreed he would continue to see the father, even after this event and the father continued to see him for a short time.
Ultimately, the father rejected any assistance from Mr K. He rejected any assistance from Mr S. He rejected any assistance from Mr J. He rejected assistance was offered by Mr T, of 50 psycho-therapy sessions in 2011. The father saw Mr T 10 times and that was it. The only person Mr Franic will see now is Dr A, and I will refer to the paucity of that intervention shortly.
The father has no intention of seeing anyone to retrieve his mental health situation, maximise his potential as a parent, and will continue to believe he is functioning well, and it is those around him who are to blame for any difficulties he has.
Mr K did the right thing. The father should have been informed upon, and the police took exactly the right action. Making death threats against anybody is a serious criminal offence but, again, the father’s air of unreality about the consequences of his behaviour is clear and apparent today as it was in 2010, 2011, 2012 and 2013 and, I fear unless he obtains help, this may continue for his life.
The father does not think he needs to attend any therapy to get better. He told Ms H he only went to see Dr A to get a report for this hearing not because he acknowledges he needs help. The father does not think he has an issue. This opinion was confirmed by the family consultant.
The father has not described to Dr A all the important events in his life weighing upon his mental health and emotional functioning as Dr A makes no mention in any of his brief letters to this Court or his initial assessment of the 5 AVOs and various breaches, being taken to mental health hospitals on seven occasions by police or the mental health team, Dr J’s and the father agreed treatment plan of 11 steps and Mr T’s intervention and recommendations.
What Dr A was told was the father taking LSD in 1992; did not cope well and was diagnosed with schizophrenia.
Ms Saw said that I could rely on Dr A’s flimsy letters that the father was well, did not currently have a mental health problem, and therefore I could make an order for unsupervised time. I reject that submission. The letters received from Dr A are merely business records. They confirm that the father has seen Dr A on perhaps 4 occasions last year and this year. They confirm what is written but I cannot rely upon those diagnoses, prognosis, or comments in the letters because I have no idea on facts or evidence these opinions are based.
The letters are at best hearsay. The opinions expressed are not supported at even the most basic level and do not detail any treatment. Each letter commences with “I reviewed” nowhere is the word “treatment” written and it is apparent Dr A does not know the full extent of the father poor mental health functioning over his entire adult life.
If I relied upon Dr A’s mere letters as an expert’s report, I would be in error, and this would be an appealable error.
I have no idea of the facts upon which Dr A has based his opinion, what he has been told, and perhaps more importantly, what he has not been told. Ms Saw told me Dr A had a copy of Ms H’s (the family consultant) report. That is not mentioned by Dr A at all. The father is a poor historian and is far from open and honest about his very concerning history.
Ms H was clear on this issue and went so far to say that, even if the Court accepted what Dr A said in his brief letters, this would not change her recommendation:
Dr A’s letters do not address the impact on the mother or the emotional health of her or her continuing emotional availability to parent her son. These are not reports, just a series of letters. I cannot see any basis of what the doctor relied upon to make his assertions. Was it the father self-reporting? There is no discussion by Dr A of the father’s lack of awareness of his contribution to these matters and difficulties.
On 28 June 2012, Dr J wrote a report to the father’s Legal Aid solicitor who was representing him for his breach of AVO. The father was seeking to be dealt with under the Mental Health act for these breaches not under the Crimes Act. Without even knowing what question was to come next, the father interjected and said “I did this on legal advice it was poor advice and did not work.” Again the father blames others for his choices.
The father and Dr J had agreed to 11 steps to address his poor and concerning functioning. The father was asked which of these steps he had carried out. They were:
a)Possibly seek a further medical opinion from the Black Dog Institute as to an underlying diagnoses of bipolar. Not done.
b)Encourage of the use of internet resources such as Moodgym. Not done.
c)Encourage Mr Franic to self-monitor (self-record) the degree of any ongoing substance abuse. Not done.
d)Basic drug and alcohol input. Not done.
e)Continue regular exercise and activities. The father says he does regular exercise.
f)Continue bibliotherapy, that is, do a biography of the steps you are carrying out and what you are doing in your life. Not done.
g)Continue psychotherapy, although clearly an alternative therapist will need to be found with Mr K. Not done.
h)Possibly trial an antidepressant, Venlafaxine. Not done until January 2014 and to use the father’s words, put himself on this medication as he thought it would help his case.
i)Possibly try a mood stabilising drug. Not done.
j)Trial fish oil. Done, yet not at quite the dosages suggested.
k)Seek advice re: smoking cessation. The father says his smoking has reduced but the father has not sought advice.
In the lead up to this very specific questioning, the father was generally asked what he had done of his agreed steps with Dr J. He said that he had engaged in drug and alcohol therapy by attending the …Centre to attend smart recovery. I accepted his evidence at that time.
Ms Lawson asked the father where the centre he attended was located. The father faltered. It became clear he had never attended any such centre or engaged in any such therapy. He lied. All he had done was researched these places on the internet and never attended. He had said on several occasions previously he had attended the Smart Recovery Program for Alcohol. He has not. Yet he told the family consultant that his alcohol consumption was not an issue for the Court. It is an issue for the Court.
There is no evidence whatsoever to satisfy me that this father has dealt with his alcohol problem or does not continue to abuse alcohol, and I find it is more likely than not that he does continue to abuse alcohol.
As an excuse or reason for his abject failure to carry through with that which he agreed with Dr J the father said, “I have lost faith and trust in the medical profession. I have been doing my own therapy and treatment.” A man as ill as the father is not capable of doing his own therapy or carrying out his own treatment unaided. Certainly he can help himself but he needs good, sound, cogent, long term professional advice and intervention.
It is not helpful when Dr A states in letter dated 22 November 2013 to Dr U:
He is still in a Family Law Court battle to gain some access to his son. He has been having supervised contact.
He says his mood has been fine. He has found the legal battle training. He has work lined up for next year. He has been living with his new partner, Ms R.
He has plans to study at the …School.
He presented today neatly dressed, had a tense affect, his mood was good, no form of thought disorder, no abnormal thought content, no suicidal ideation.
His insight and judgment were good. My view is he does not currently suffer from any mental illness and requires no specialist mental health follow up.
On 19 December 2013, in answer to questions by the Independent Children’s Lawyer, Dr A writes:
My view is Mr Franic has previously met diagnostic criteria for an adjustment disorder with mixed emotional features, anxiety, depression, and anger in the context of relationship breakup and a nasty custody battle over his son, [X].
My view is that he does not meet diagnostic criteria for an adjustment disorder with mixed emotional features at the present.
I recommended that he sees a psychologist to assist him with emotional regulation.
He declined anti-depressant medication which can occasionally assist with this type of presentation.
I am happy to provide a review every two to three months.
It is clear Dr A does not engage in therapy with the father. Dr A reviews the father when he presents himself to him. This is not therapeutic intervention that the father needs. Dr A referred the father for psychological therapy, however the father chose not to continue with therapy with Mr S in May 2013. Dr A makes no mention of this. The father has not seen a therapist for nearly 12 months.
Dr A continues.
My view is if the reasonable parenting plan is arranged, it will assist him resolve any lingering emotional liability. He is capable of having a warm and emotionally measured relationship with his son. Once the conflict with his ex-partner is resolved he will not have any ongoing psychiatric difficulties.
I disagree with Dr A’s assessment. This man had psychiatric difficulties well before he even met the mother. Dr A does not know his history because the father has not told him.
When this letter from Dr A was shown to the family consultant, she was concerned as to what the father’s lingering emotional liabilities were and why Dr A would recommend he see a psychologist if there was no issue with him. I adopt the family consultant’s position. Dr A’s letters raise more issues than they answer.
Dr A says in a letter 19 December 2013 to Mr Cohen, the father’s lawyer:
…the father poses no risk to his child.
That is for me to assess, not Dr A.
On 27 February 2014 Dr A sent a further letter to the father’s doctors at the Suburb Q Medical Practice:
I reviewed him again today. He has broken up with his partner. He is in shock. He is currently taking Duloxetine, 60 milligrams in the morning.
He takes Cialis to correct sexual dysfunction. He has no current evidence of mental illness.
It is not the father’s mental illness that is at issue. It is the impact of that illness upon his behaviour, insight, capacity, functioning and demeanour with a 3 year old child. Dr A’s letters do not assist me to accept the father’s position he is functioning well. His presentation before me in court, the evidence of the mother and his own rambling, shambling self-justifying evidence leads me to a contrary position.
The family consultant, Ms H, was cross-examined in this matter. The family consultant’s recommendations are clear. It’s recommended the mother have sole parental responsibility; [X] live with his mother; [X] not spend time with or communicate with the father. Due to the non-existent parental relationship, the concerns about his mental health relating to family violence and there are significant concerns about the viability of equal shared parental responsibility. [X]’s needs will be best met by one parent having that responsibility.
At paragraph 83, Ms H was most concerned to ensure that in [X]’s formative years, which are now, he is not exposed to tension and hostility by being repeatedly placed in positions of high stress, unsettling or confusing situations. The mother’s case is that upon the child’s return from time with the father that is how he behaves. Unsettled, confused, and at times very distressed as set out in her affidavit.
At paragraph 82, Ms H states:
That on the information available, there is potentially no decision that the court can make that does not pose some challenges for [X]’s current wellbeing.
However, in weighing up all the above circumstances, the best protection for [X] in the circumstances of this matter is to preclude any contact or communication between [X] and his father. The risk to [X]’s sense of psychological safety, his tender age, his reliance on his mother, and the need to protect and consolidate his primary attachment relationship with his mother would appear to exceed any benefit to [X] of having any type of contact with his father in order to facilitate him having a meaningful relationship with each parent.
In a family context such as this, it is suggested it is better to prioritise one solid attachment than to have two troubled attachments.
That was a concern for Ms H and is so for the Court today.
Ms H has said supervised time cannot continue in the long term and is not in [X]’s best interests and unsupervised contact would raise such heightened anxiety and concerns for the mother that [X]’s emotional well-being would be put at risk.
The adverse reaction in the mother of unsupervised time which the mother honestly said she would not and could not do is real and based upon reasonable grounds. It is not fabricated or embellished or made up. It is based upon the treatment she has received at the father’s hands and his behaviours to others. This is a real and significant risk to [X] as it is more likely than not to disrupt [X]’s attachment to his mother, and he may have a troubled attachment to two parents.
Ms H also opined that given both [X]’s parents have some impairment to their emotional functioning, [X] may have a genetic pre-disposition to emotional frailties and thus the Court would be most cautious with his emotional and psychological well-being.
The father is the only person who can retrieve this situation and he has done very little to maximise his emotional health and well-being for the sake of his son. Even though he knew he faced an order for no time in March 2013, he would not continue therapy with Mr S and told me he would not engage with anyone who did not get him, understand who he was and that he did not think he was benefiting from.
This is a case concerning whether the father poses an unacceptable risk of harm to the child in spending time with or communicating with him.
In M & M[1] the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
Efforts to define with greater precision the magnitude of the risk justifying a Court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance the test is best expressed by saying a court will not grant custody or access to a parent if that custody or access would expose a child to an unacceptable risk of sexual abuse or as here “abuse”.
[1] (1988) 166 CLR.
In B & B[2] the High Court endorsed the Full Court’s statement that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
If a trial Judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur then a trial Judge may, in our view, suspend access.
[2] [1988] HCA 66.
The law is not that a child must have a relationship with each parent at any cost.
Ms H made a very perceptive comment in paragraph 79 of her report that Mr Franic is emotionally vulnerable. I observed that behaviour in the witness box. He rambled, cried and became very upset.
Ms H said:
On highly emotional and stressful occasions, his intensity, emotional neediness, impulsivity at times, lack of emotional control would seem to have resulted in outbursts with others, and he could be perceived as verbally abusive, threatening and/or rude.
His insight and ability to reflect on the impact of his behaviour, in my view, is likely to be impaired by his depressed mood and his fragile mental health. He presents with some characteristics typically associated with major depressive episode and/or personality disorder. These aspects of his personality and his extensive psychiatric history could also suggest his capacity to change his behaviours and become more emotionally resilient is limited.
Ms H only became firmer in her oral evidence. She had read the father’s updated affidavit, the mother’s updated affidavit. She had read the contact centre notes, particularly those of Suburb E Contact Centre, showing a warm and appropriate relationship of the father and the child at the contact centre, the father acting appropriately, kisses, hugs, cuddles, activities that they enjoyed and engaged in.
Even after reading that the child was establishing a relationship with his father, Ms H said her opinion would not change and there should be an order for no time or communication with the father.
This opinion is based not on anything the mother has done but solely upon the father, his functioning and his inability to change his ways or his behaviour or way of looking at the world.
The Family Law Act is clear. It is a benefit to a child of a meaningful relationship with both parents. Not one parent, but both.
For [X] to have time with or communicate with his father at any level, supervised or not will pose a significant risk to his attachment to his mother and [X]’s own ongoing emotional and psychological well-being and functioning.
This risk is further compounded by the possibility that [X] may have a genetic predisposition to emotional problems and that he only has one significant attachment to his mother. [X]’s mother has been his only functioning parent.
Despite the truth that it is positive for children to have a relationship with both parents, it is not a relationship at any cost and a child has a right to a relationship with both parents. The cost to [X] of a relationship with his father would be a real risk of his relationship with his mother being significantly negatively impacted upon, and this Court will not countenance such a possibility.
The father has subjected the child to emotional and psychological abuse by his behaviour, attitude and conduct towards the mother. He came to court seeking an adjournment of this matter, having already had an adjournment granted in June 2013 knowing that this was a matter that needed to be dealt with to finality for the mother and child. He saw only his own needs and not his son’s needs.
He has scant regard or insight into the needs of this young child. He has a limited capacity to parent a child. He is not available emotionally to parent this child and will by having contact with him, take away the mother’s capacity, which is at a reasonably high level of functioning, to parent this child solely as she has done since.
The father has continued to complain that the child suffers from medical conditions, when he does not. He said in his affidavit, at paragraph 49:
I do not believe Ms Como is a bad person and I believe she has real potential to be a good parent.
The mother is the only parent he has and he is doing well. He has reached all his developmental milestones. He is a happy, healthy little boy and still the father could not give the mother any credit.
The father pays no child support. He is on a disability pension. The mother solely supports the child emotionally, psychologically and financially. To by order permit the father to come into his happy life and disrupt his primary attachment and his capacity to form relationships in the future would be an abuse of the child.
I make a positive finding that the father is a substantial risk of harm to this child by his inability to address his psychological and mental functioning, by his inability to put anyone’s needs before his own needs and by his conduct and attitude towards the mother and lack of empathy or understanding of the need to support the mother in her role as a mother.
I have no trust that the father would support the mother in her role if he had unsupervised time with the child. The potential for the father to run the mother down to his son is real.
The certificates the father had done, although positive do not address his mental health and his functioning emotionally as an adult. He behaves as a child at times.
The father’s position was that the mother was not promoting his relationship with the child. This matter is not about the mother’s capacity to promote a relationship with the father and child as Ms Saw submitted to me it was. The mother has promoted this relationship as [X] enjoys his time with his dad and has a good time. He would not have been able to do this if his mother had not given him emotional permission to do so. This is a case about the impact upon the mother’s capacity to continue to parent her child if the father has time with the child, be it supervised or unsupervised coupled with the risk to the child if the father’s mental health and functioning again deteriorates as it has done in the past.
Ms H was clear. The mother could have done nothing more to assist her son. He came back from time with the father and he reacted as he did. The mother could do no more than she had to comfort her child. When [X] said “Mummy come too” Ms H said this did not mean that the mother won’t let him be away from her. What [X] wanted was for his mum to be with him all the time. His mother is his safety and security. These words caused Ms H no problem and are no problem for me.
For the father to suggest as he did through Ms Saw, this meant the mother was not promoting his relationship with the child bespeaks of his or Ms Saw’s lack of understanding of the emotional needs of a 3 year old child who has only one parent in his life.
Having time with his father, communicating with his father, will exacerbate tensions and stress in his household to an untenable level. I accept the mother position that the father is not to be trusted in his behaviours.
As Ms H said, it is not just the presence of physical danger which is a risk to [X] but a lack of emotional security. [X]’s emotional security would be jeopardised by a relationship with his father because his mother would become so stressed, so anxious about what was happening, that she would no longer be as emotionally available to him.
As Ms H said, the father does not perceive he has a problem therefore he does not attend psychotherapists. With this attitude even if he did attend it would do him no good as he is not receptive to therapy. I accept this opinion.
The mother was not shaken in any of her evidence. She was clear. “I do not want my son to have a relationship with his father. I see no benefit in the long-term”. The Court agrees with her position. There is little long term benefit in a relationship for [X] with his father, given his father’s level of functioning, his inability to take on board recommendations and his unwillingness and incapacity to engage in therapy to retrieve his poor mental and emotional functioning.
Ms Saw did her absolute and upmost best to convince me that the father was not a threat, that the father would abide by any Court order made, that he would now undergo psychotherapy as directed by Dr A or anyone else, to give him another chance and continue supervised time for another 12 months to enable [X] to have the benefit of his father in his life.
The difficulties with her submission are many.
Firstly, I am making a decision based upon the evidence today. The father has had three years to obtain the help he needed. The mother put a sensible and proper proposal in her initial response in 2011. “You can approach unsupervised alternate weekend time if you undergo therapy. If you retrieve yourself. If you understand.” The father has taken virtually no steps to assist him. The father has made his choice. He does not believe there is anything wrong with him.
Secondly, the practical risks to this child in spending anytime with the father are many. The father is homeless. His life is chaotic. The father has no stability. He is on a disability pension and struggles financially.
Thirdly, the father has significant emotional and mental functioning issues, which he refuses to address. He tells me he does self-help. I am satisfied he still continues to use alcohol and/or misuse alcohol. He will not obtain help for any issue.
Fourthly, time with the father and child will cause the mother significant anxiety and distress and will negatively impact on [X]’s attachment to her and her emotional availability to him.
Fifthly, the father is not to be trusted as the mother asserts is her experience of him. I have had the same experience. The father lied to the family consultant when he told her in March 2013 he was not prescribed any medication at that time. He had been prescribed Duloxetine by Dr A on 22 January 2013 which he did not take. He has now decided to take such medication from January 2014. His attempt to cover up this lie was as follows.
The father said “I never took it”. The fact he did not take the medication then but commenced to take it one year later in January 2014 was not the issue. He muttered “I don’t like to take meds if I don’t need it”. Ms Lawson asked “Well, you’re now taking the meds you asked for.” The father said, “Well, that’s because I was told by my solicitor it would look good to be on medication for the court case, so I asked for meds but I did not really need them”.
Mr Franic does not believe he has any ongoing mental health issues when the evidence is overwhelmingly to the contrary. This attitude is also an example of his manipulative behaviour as described by the mother.
The father is out of touch with reality and the consequence of his adult behaviour. For the father to tell the Court he did something just to look good for the court case knowing the issue before the Court was a no time order for a vulnerable three year old child demonstrates the father’s focus. His focus is on him and his need to get his own way by any means. It is not on his son.
The father lied about attending the Smart recovery programme. He had not and was caught out in cross examination.
He lied about his stalking of the mother in January 2012, the occasion where he made a death threat against her to Mr K.
He has not told Dr A anything like his actual medical history. The father lies when it suits him and I accept the mother’s concerns that he is not to be trusted.
The mother describes him in her affidavit and to the family consultant as:
Unstable, unpredictable, manipulative and dishonest.
Ms H said she had a fixed view of him. It may be fixed but it is accurate and correct. I support the mother’s view. The evidence supports the mother’s view. The mother understands this man better than anyone, particularly Dr A, as she knows the reality. He is not to be trusted.
The father has had problems with relationships all his life. His mother has taken out two AVO’s against him. His sister will have nothing to do with him. Ms Como and he had a very short and unhappy and deeply troubled relationship. His relationship of 11 months has broken up. Mr B, his friend, has not come to court.
I put to the father on day one that he did not follow through treatments he did not agree with. He said it was untrue. I asked him to think about this overnight and on the second day tell the Court what treatments he had followed through with which he did not agree. All he could come back with the next day was he went back to see Mr K after he had threatened to kill him. That did not satisfy me.
I accept the father loves the child. That is not at issue. This is a case of risk to the child from the father.
Ms F, the mother’s niece, was firm in her evidence. Mr Franic gave some watered down version of bumping into this woman in Suburb K at a restaurant and having a pleasant conversation. I reject that evidence. It was an extremely unpleasant meeting in 2011 some weeks after [X]’s birth. There was yelling and shouting such that Ms F felt embarrassed.
I accept Ms F’s evidence that he was either drug or alcohol affected and not in control. He threatened to kill the mother to Ms F but she said he could not have hurt a fly at the time and he was so unsteady on his feet she thought he would fall down.
Ms F said after speaking to her aunt about the death threat to the mother they decided not to tell the mother.
Ms F’s evidence is to be preferred to the father’s. He simply lied about that incident. He was out of control.
Ms Saw said the father has behaved quite well since 2012. I reject that evidence. He has not. He has lied to the family consultant. Lied to Dr A. He has lied to the Court. He has rejected all advice for ongoing treatment be it the use of medication and or therapy.
As late as December 2012 the father was in contravention of orders made by this Court, sending text messages to the mother. Counselling cannot assist this man because he does not believe there is anything wrong with him.
The mother says this at paragraph 181:
Over the course of the court proceedings, Mr Franic has failed to comply with orders and directions made by the Court. Failed to attend contact visits. Failed to attend the CDC. He has had four solicitors acting for him interspersed with extended periods when he was between solicitors. He has failed to engage in regular treatment by a psychologist or psychiatrist. And all of these behaviours make it difficult for me to even begin to accept he has in any way changed or is genuinely trying to change from the unstable, unpredictable, manipulative, dishonest man I know him to be based on our relationship.
The mother is correct in her assessment. That sums up the father I saw before me.
It was put to the mother by Ms Saw that she needed to undergo therapy to be able to support [X] having a relationship with the father. The mother took umbrage at that and I accept this was an improper suggestion and contrary to the evidence. The mother has been able to support [X] establishing a relationship with his father. The mother responded:
My issues and emotional responses will not be resolved by my undergoing therapy but by Mr Franic doing so and I am offended by this.
The mother is correct. The father is the one that has to do something. It was then put to the mother that the child should undergo therapy to enable him to have a relationship with his father. The child needs no therapy. He needs his father to undergo therapy. That this could be seriously suggested by the father that his happy, healthy, 3 year old undergo therapy to enable him to have a relationship with him is further evidence of the father’s focus being his needs being met no matter the cost to others. That such an extraordinary position was even put underscores why there can be no order for the father and child to spend time or communicate with each other.
The mother said in her oral evidence:
Mr Franic’s capacity to change due to his age is a worry for me. He is now operating in the realm of his own reality.
This is a correct assessment of the father. Ms H doubted the father’s capacity to change his behaviour and attitudes and way of processing the world. Unfortunately the father operates in his own reality and that is a risk to the child.
The father could not control himself in the court while the mother was giving evidence. He constantly moved in the witness box, he jumped around, made many unsolicited and off the cuff comments, constantly interrupted questions when being asked, went off on tangents in an endeavour to justify his actions as the fault of others. He behaved in an immature and self-centred fashion.
The mother said she is willing to pass on gifts, photographs and letters twice a year sent by the father provided she checks they are appropriate. The Independent Children’s Lawyer supports that position.
Ms Saw said that the father’s behaviour was related to the mother and the breakup. That is not correct. The father has had major problems with his functioning for many, many years and well before he met the mother. He has had two AVO’s taken out against him by his own mother prior to their relationship.
Ms Saw said I could accept that it was a particular grouping of events which caused the father’s abhorrent behaviour in 2010, 2011 and that that was the reason for the behaviour. My difficulty with that submission, if I accept it, is how do I know three or four such events will not occur in the future and the father degenerate, as he did then in the absence of any real therapeutic intervention or concession that same is required.
I accept that he may have had two stressful events recently. The court hearing and the breakup of his relationship. However I formed the view the father enjoyed the court hearing as it continues to give him a connection to the mother. It gives him control. It allows him to vent, as he likes to do, and it continues his orders for unsupervised time. Thus, despite what the father says, I do not see the court proceedings are stressful for him, it is likely keeping him going as he is getting what he wants namely time with his son and contact with the mother.
Ms Lawson talked about this case as being the missed opportunities of the father. His first missed opportunity is he could have accepted the mother’s position in 2011 and gone to counselling and if he took the treatment on board perhaps he may be well on his way to spending time with his son. He refused.
The second is he failed to avail himself of obtaining assistance when he must have had lucid moments in 2010, 2011 and read the vile texts he sent to the mother, he says, when he was drunk. He could not stand for Ms Lawson to read them out. He found it very difficult to listen and was no doubt embarrassed. There was no thought about what it meant for the mother pregnant with their child.
The third missed opportunity was with Mr K. When Mr K gave him another opportunity to re-engage even after he had made the death threat, the father refused after 2 visits because no doubt it got too hard for him.
The fourth missed opportunity is in Dr J’s report. The 11 agreed steps of which he has done maybe one and a half. The father failed to take up that advice to which he agreed.
Missed opportunity 5. The father could have continued to attend on Dr J but he failed to attend.
Dr J and Mr T said he should attend rehab. The father did not attend rehab. That is his missed opportunity six.
Missed opportunity 7. The father could have attended 50 sessions of psychotherapy with Mr T. He failed to attend.
Missed opportunity 8. Involvement with Dr A. The father told me he went to Dr A for the purpose of this hearing, not ongoing treatment and therapy. Rather than engaging Dr A to help him get over his problems, he thought he would just get some quick sticks report to help so that I would think all was well.
Missed opportunity 9. The father could have provided Dr A with a fulsome report of his past history and behaviours. His five AVO’s and the resulting breaches; his seven times taken to a mental health facility by Police or a mental health team; his disgusting text messages to the mother; his breaches of these Court orders and continued texting. Then Dr A would have known the history and may have been able to assist him. He failed to do that.
Missed opportunity 10. He did not get an expert’s opinion report from Dr A which may have helped him, the Court and mother.
Missed opportunity 11. He failed to abide by Court orders with the AVO and the injunctive orders in this Court. The father does not adhere to orders or conditions he does not agree with.
Missed opportunity 12. He has missed an opportunity to be a man and a parent to his son because he does not accept responsibility for his actions. He has blamed, variously, his lawyers, his counsellors and therapists, the mother’s family and the mother, his family this Court but never himself. His evidence was that it was either not his intention to cause harm, and/or he was being misunderstood and/or people were not on the same page as him or he was misusing alcohol.
Missed opportunity 13. He missed an opportunity to be truly remorseful. I find the father is not remorseful. He is still fixated on the asserted wrong done to him by the mother in his belief that the mother moved Mr G into his bed as soon as he moved out. The father is stuck in 2010. His trial affidavit supports this finding.
Ms Saw said it is was not open to me on the evidence to make a finding of unacceptable risk as there is no evidence of a direct attempt by the father to harm [X]. I reject that submission. Unacceptable risk is not confined to direct attempts to harm.
I make the positive finding that the father is a risk to [X]. It is an unacceptable risk because I cannot put any parameters around his behaviour to control him or ameliorate the risk. I do not trust the father in an unsupervised setting to act appropriately or responsibly towards the child. He will always put his own needs before anyone else’s needs, including the needs of his son and without a supervisor present, I accept the mother’s position that the child is at risk.
Long-term supervision is not an alternative and it too poses a risk to [X] being the impact upon his mother’s emotional functioning and availability to him.
Having found the father to be an unacceptable risk of harm to the child whether contact be supervised or not I need in reality go no further in addressing the remaining factors under section 60CC (2) and (3).
However, looking at the remaining factors under the Act:
a)The father shows little insight into his child’s needs.
b)Has scant regard for the importance of the mother in the child life.
c)Has limited if not non-existent capacity to look at matters from [X]’s point of view and then make a decision based upon [X]’s best interests. I find there is a strong probability that the father would prefer his interests to [X]’s.
d)The father has the capacity to undermine the child’s secure and attached relationship with his mother and seriously disrupt the child’s current stable, loving and child focussed home life if the father has any capacity to communicate with or spend time with the child.
The father conceded sole parental responsibility to the mother which is the only order the Court could make and thus I need not consider equal time or significant and substantial time. I cannot consider any order for time as to do so would be against the weight of the evidence.
The final order I will make and based upon the evidence before me is that there be no time with or communication with the father and child.
In relation to the order the mother seeks under section 68B, I will make that order. I accept the making of such an order for her personal protection and that of her son will not only make the mother and child safer but also help the mother to feel more safe and secure. This will benefit [X].
Secondly, by making such an order it will avoid further Court proceedings. There is a strong possibility of the father’s behaviour deteriorating in the future given his failure to address his issues and undergo treatment in any meaningful sense. If his behaviour deteriorates it will avoid the mother taking out an AVO.
The mother does not trust the father to obey Court orders and she is correct on this as the father has breached orders in the past and for those reasons I will make that order even though I accept there has been no direct threat by the father to harm the child.
The father’s case was about him, his needs and the injustices he had suffered. His lack of consideration for or acknowledgment of what he put the mother through in his written material and his incapacity to deal with his behaviour in Court is the clearest evidence of the father being at this time self-absorbed, self-centred, and significantly impaired and it is he who poses an unacceptable risk to his child.
I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 30 May 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Jurisdiction
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