GALLEGO & MACKWETH
[2016] FamCA 10
•20 January 2016
FAMILY COURT OF AUSTRALIA
| GALLEGO & MACKWETH | [2016] FamCA 10 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – FAMILY VIOLENCE – NO TIME – SOLE PARENTAL RESPONSIBILITY – Where the wife is the children’s primary carer – Where the children have not seen their father for over a year, with the exception of interviews conducted by the Single Expert, following an assault by the husband on the wife – Where the Single Expert ultimately made no recommendation for any contact to occur between the husband and the children due to his unpredictable psychiatric state – Where the Court found that there was a history of family violence by the husband against the wife which had a significant effect on the children – Where there is no adequate proposal as to suitable supervision given the risks associated with the husband’s psychiatric state – Where the Court found that it was not possible for the children to have any face to face contact with husband that will keep them physically safe – Orders made that the husband have no time with the children but that he and the paternal family be permitted to send the children gifts, cards and letters – Sole parental responsibility order in favour of the wife. |
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Ms Gallego |
| RESPONDENT: | Mr Mackweth |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children's Lawyer |
| FILE NUMBER: | SYC | 3015 | of | 2012 |
| DATE DELIVERED: | 20 January 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 16, 17, 18, 19 and 20 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Diana Perla & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Moutasallem |
| SOLICITOR FOR THE RESPONDENT: | Concordia Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED
That all previous Orders be discharged.
That D, born … 2006 (“the older child”) and B, born … 2009 (“the younger child”) (“the children”) live with the wife.
That the wife have sole parental responsibility for the children.
That the children spend no time with the husband.
That the husband be restrained from attending the schools which the children may attend from time to time or from making contact with the children by any means other than as provided for by Order 6 of these Orders.
That the husband be permitted to send gifts, cards or letters to the children at an address which shall be provided by the wife within 28 days of these Orders.
That the wife be permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday for a period of no longer than 28 days on each occasion.
That the effect of Order 7 is that to the extent required, the requirement of the husband’s consent and execution of documents to enable an Australian passport to be issued for the children is dispensed with.
That the wife or her nominee advise the husband by email or letter, at the address provided by the husband to the wife’s solicitor, of significant religious, medical and educational events in the children’s lives.
10.That the wife provides school reports and a class photo for each of the children at the end of each school year to the husband’s mother, Mrs G Mackweth, at her home address.
That the wife provide to the children’s treating therapist, Ms S, a copy of these Orders and Reasons for Judgment, a copy of the report of Dr R dated 8 September 2015 and a copy of the addendum to the report of Dr R dated 6 November 2015. The wife is to advise Ms S, upon providing her with those documents, that the contents of those documents are not to be disclosed to the children.
12.That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallego & Mackweth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3015 of 2012
| Ms Gallego |
Applicant
And
| Mr Mackweth |
Respondent
REASONS FOR JUDGMENT
These are proceedings for property settlement and parenting orders between Ms Gallego (“the wife”) and Mr Mackweth (“the husband”). They are the parents of D (“the older child”) born in 2006 and now aged nine years, and B (“the younger child”) born in 2009 and now aged six years.
The husband and the wife married in 2005 and separated in February 2011. After separation the children remained in the primary care of the wife. The parties were divorced on 1 March 2014.
The hearing was split. The evidence and submissions in the parenting proceedings were heard first because the husband, who had been unrepresented for the period leading up to the hearing, had not filed his affidavits in relation to financial matters.
When the hearing in relation to parenting was completed, the matter was stood over, part-heard until 19 January 2016 for the hearing of the financial proceedings.
When the matter came before the Court on 19 January 2016 for the continuation of the hearing the husband did not appear. A letter had been received from the husband’s mother, attaching a letter from Dr Y dated 14 January 2016 indicating, inter alia, that the husband was not able to give instructions to his legal advisers, that he “has been spending time in safe location” and has not had access to his medications.
The husband’s mother, in her letter, stated that the proceedings were too complex for her to be appointed case guardian for the husband.
On 15 January 2016, the solicitors for the husband notified the Court that they were unable to continue to act for the husband.
Counsel previously briefed for the husband appeared to advise the Court that the solicitors and counsel were not able to continue to appear and they were given leave to withdraw.
The matter was stood over for the wife to consider her position since it was necessary, in the circumstances of Dr Y’s letter, for a litigation guardian to be appointed for the husband before the matter could proceed further.
The ICL and Senior Counsel for the husband then asked the Court to deliver judgment in the parenting proceedings and the financial proceedings to be heard separately.
This judgment deals only with the parenting proceedings.
THE PARENTING PROCEEDINGS
The proceedings were commenced by the wife who filed an application on 24 May 2012. In that application she sought that the husband spend time with the children each Saturday from 9.30 am until 6.30 pm during school terms, increasing to alternate weekends when the younger child reached six years of age. She also sought orders that the children spend school holiday time with the husband. In her affidavit in support of that application the wife raised significant allegations of family violence against the husband.
In the current proceedings the wife seeks orders that the husband spend no time with the children. The husband asks the Court to make orders that he have, initially, supervised time with the children for a few hours each fortnight, for a period of three months, graduating to supervision by his mother Mrs G Mackweth or his sister Ms Q Mackweth each Saturday between 1.00 pm and 5.00 pm for a further period of six months. He then seeks orders that for ten months he spend time with the children each Saturday between 9.00 am and 5.00 pm in alternate weeks and each Sunday from 9.00 am to 5.00 pm in the other week to be supervised by the paternal grandmother or the paternal aunt and orders for time on special days.
The wife’s opposition to the children’s having time with their father stems from two significant matters. Firstly, she alleges that there is a history of family violence between her and the husband which has had a significant effect on the children. Secondly, she alleges that the husband has significant and serious psychiatric problems which, of themselves, mitigate against his spending time with the children.
THE HEARING
The wife relied on an affidavit by herself and affidavits of her mother (the maternal grandmother, Mrs Z; her cousin Ms AA; Ms O (who for a time supervised the children’s time with the husband); and the children’s therapist, Ms S. All were cross-examined.
The husband was permitted to rely on nine affidavits sworn by him and on three affidavits by his mother (the paternal grandmother, Mrs G Mackweth.
Initially he also relied upon two affidavits by his sister Ms Q Mackweth; an affidavit by his brother Mr BB Mackweth; an affidavit by his father Mr P Mackweth; and an affidavit of Mr X. All of those deponents were required for cross-examination. In the course of the hearing, counsel for the husband advised that none of those deponents was available for cross-examination and that, consequently, their affidavits would not be relied upon.
The husband’s treating psychiatrist, Dr Y, provided a report on the fourth day of the hearing and was cross-examined.
The children were represented by an Independent Children’s Lawyer (“ICL”) and the Court was assisted by two reports by the single expert, Dr R, a child and family psychiatrist, who was cross-examined.
THE HUSBAND’S EVIDENCE
There were a number of relevant matters which the husband did not disclose to the Court.
He did not disclose in any affidavit, or to the single expert, that he had been convicted of assault occasioning grievous bodily harm arising out of an incident when he was 17 years old. His evidence in cross-examination, as will be discussed later in these reasons, minimised the seriousness of that incident.
He did not disclose in any affidavit that he had been the victim of an armed robbery in November 2012. The matter was in Court for a conciliation conference on 16 November 2012. He did not disclose that he had made a workers’ compensation claim arising out of that incident. He did not disclose that he had been assessed by six separate psychiatrists in the course of the workers’ compensation proceedings.
He did not disclose that all six psychiatrists had diagnosed him as suffering from serious mental illness. (The opinions of the psychiatrists will be set out fully later in these reasons).
He did not remember seeing Dr SS in January 2013.
He denied having been referred by Dr V for anger management counselling.
He did not disclose that he was in receipt of periodic payment of workers’ compensation.
He did not disclose that his mother, Mrs Mackweth, had been appointed as his case guardian in the workers’ compensation proceedings on the recommendation of a psychiatrist who said he was not capable of giving instructions.
He did not disclose that he was being treated by a consultant psychiatrist, Dr Y, who saw him as frequently as twice each week and, at the date of the hearing, three times each fortnight.
The husband’s evidence in his affidavit sworn 6 March 2013 about his ability to care for the children unsupervised was totally contrary to the statements both the husband and his brother BB were making to various psychiatrists as to his impairment during the same period.
The husband actively deceived the Court when he completed his parenting questionnaire in October 2013 and, in answer to the question “Do you suffer from any medical condition which requires supervision by a medical practitioner...” he answered “N/A”. That statement was false and the husband knew it to be false. He was regularly attending Dr Y, at times, twice a week.
Also in October 2013 the husband signed an undertaking as to disclosure stating that, to the best of his knowledge, he had complied with his obligations of disclosure. That statement was false and the husband knew it to be false.
Further concerns about the reliability of the husband’s evidence arose during the hearing of the parenting proceedings. He said in cross-examination that after the robbery in November 2012, he had difficulty reading and concentrating and the medication he was taking took away his memory. However the husband relied on five separate affidavits sworn by him in 2013 and made no mention in those documents of any impairment.
He could not name the firm of solicitors who currently act for him or the firm who act in his workers’ compensation case.
He could not name the solicitors who acted for him in a nine day trial in the District Court.
He could not remember if he had studied or attended any college in 2014.
He said in cross-examination that he remembered “bits” of what happened on 4 April 2014, an event which will be referred to in detail later in these reasons, but later gave quite detailed evidence about that event.
He denied that he was the transferor of a property recently sold by him in Suburb H until he was shown the signed transfer. He could not tell the Court, or was unwilling to tell the Court, where some $700,000 being the net proceeds of sale of the property recently sold by him had gone.
He said, in relation to a recent Financial Statement upon which he was cross-examined, that he had never read the document and did not remember swearing an oath when it was executed.
It is not intended here to detail each and every unsatisfactory aspect of the husband’s evidence but to demonstrate that he was not a reliable historian.
Unfortunately, members of the husband’s family, particularly his mother, Mrs G Mackweth, and his sister, Ms Q Mackweth, were equally unreliable.
Despite the fact that the paternal grandmother had agreed in July 2012 to supervise the children’s time with the husband, as provided for in the Consent Orders of 18 July 2012, she did not tell the Court or the wife about her knowledge of the husband’s serious psychiatric condition from January 2013.
Dr R was so concerned about the husband’s presentation on interview that he took the husband’s mother and sister aside and told them that the husband needed psychiatric intervention. Neither of them told Dr R of the husband’s psychiatric history or that he had a treating psychiatrist.
THE HUSBAND’S CONVICTION IN 1997
When the husband was 17 years old he was charged with attempted murder arising out of an incident when another youth was injured. He was convicted of the lesser offence of assault occasioning grievous bodily harm and sentenced to periodic detention. The husband’s version of those events in cross-examination was that he had been threatened by the victim and had defended himself by hitting the victim once with a piece of wood. The victim suffered a punctured lung. The husband said that the victim had a knife in his pocket and fell on the knife.
The incident was not disclosed by the husband in any affidavit filed in these proceedings. He did not put any documents before the Court such as statements, sentencing remarks or the like. The incident was not disclosed to any of the psychiatrists whom the husband consulted as will be explained later in these reasons.
The husband did not tell the wife about the conviction. When they met he was serving periodic detention but he told the wife that he was in the army reserve and had to go on weekend camps. She found out about the conviction during these proceedings from subpoenaed material.
The version of the incident disclosed in the material produced by the police is somewhat different from that given by the husband. The police record that in May 1996 the victim and three friends were abseiling in bushland. The husband threw rocks at them. They climbed up to the path and were confronted by the husband holding a length of timber. The victim was struck to the ground and the husband produced a small bladed knife and lunged at the victim, penetrating his lung. The husband kicked the victim and ran away. The victim was taken by ambulance to hospital. Items of the husband’s clothing were found by the dog squad. The husband was arrested and charged.
Neither the husband nor any members of the paternal family disclosed the fact of the husband’s arrest and subsequent conviction to Dr R during the interviews conducted by him prior to the preparation of his report. Dr R became aware of the husband’s criminal record for the first time when he attended Court for cross-examination on the fourth day of the hearing. In relation to the NSW Police Force document which was tendered by counsel for the wife and which recorded the husband’s criminal history dating back to 1996, Dr R opined:
I think that that document is of great relevance. It clearly identifies that, as a younger man, the [husband] had a history of significant violence. I note that he was on trial for attempted murder, I think, at the age of 17. I was unaware of that history when I conducted my assessment. The [wife] made very significant allegations regarding the [husband’s] history of violence, and when I conducted my assessment I was provided with the information that – before the District Court, her allegations with regard – her and the children’s allegations regarding assault had been dismissed, and the [husband] had been found not guilty. It is my understanding that those additional forensic records identify that the [husband] does, indeed, have a significant history of violent behaviour. This is very significant in assessment of the [husband’s] allegations, the children’s allegations and the assessment of risk with regard to the [husband’s] actions.
As will be discussed later in these reasons, in his oral evidence Dr R resiled from the recommendations in his report and the addendum to his report for contact to occur between the husband and the children. After having the opportunity, when he attended Court, to read for the first time a number of documents that were tendered by counsel for the wife, Dr R ultimately did not make any recommendation for contact, even supervised contact, to take place between the husband and the children.
FAMILY VIOLENCE
The wife in her trial affidavit sworn 21 October 2015 makes a number of specific allegations of violence. The husband was not represented for a period of time during the proceedings and no trial affidavit was filed by him. However, he was permitted to rely upon nine affidavits sworn by him between 17 July 2012 and 30 April 2015.
These reasons will not canvass each and every allegation made by the wife but the more serious allegations will be considered.
The husband denied each and every allegation which was made by the wife in relation to family violence.
The first incident upon which the wife relied occurred a few months after the marriage. The wife deposed that there was an argument between her and the husband in relation to a document that he wanted her to sign. The wife refused and the husband became angry and kicked and punched the wall in their house, making holes in the wall. In so doing he broke his hand and hurt his leg and had to be taken to a doctor and physiotherapist to have his injuries treated.
The husband’s version of this incident is that he was carrying a cabinet down the stairs and fell. There is no doubt that the husband was injured. Annexed to the wife’s affidavit is a copy of a report from CC Diagnostic Imaging in relation to an X-Ray which disclosed a crack fracture in a bone of the husband’s hand. His foot and ankle were also X-Rayed.
At the time of the incident the maternal grandmother, Mrs Z, was living with the husband and the wife. In her affidavit sworn 31 July 2013, the maternal grandmother deposed to having been present during the argument about the contract. She deposed:
I was sitting in the lounge room, [the wife] had gone upstairs and [the husband] was near the stairs where I could see him. I saw him kick the wall and it made a large hole in the wall. When he kicked the wall, it made a large bang and [the wife] came running down the stairs. [The wife] and I then ran outside the house. We went back after a few minutes and [the husband] was in the kitchen with his leg swollen and he could hardly walk.
Neither the wife nor her mother resiled from their evidence and I accept that on or about 5 December 2005 the husband kicked a hole in the wall of the home in which the parties then lived.
The wife deposed that on 5 February 2010 there was an argument between them at which the paternal grandmother, Mrs G Meckweth, was present. The wife deposed that in the course of the argument she threw a cup at the husband and the husband “slapped me on both ears with both of his palms. I felt immediate pain and I could not hear.” The wife deposed that the paternal grandmother suggested she go to the doctor.
The husband denied that any such incident occurred. The records produced by the wife’s general practitioner, Dr V, indicate that on 5 February 2010, the wife attended for a consultation with Dr DD. Dr DD noted that the patient had a fight with her husband that morning. The notes read “pt talking with husband and she threw a cup on him and he hit her on her head twice. Pt has difficulty hearing from right ear since this am.” Dr DD noted that there was blood in the wife’s right ear. The wife was referred to an audiology clinic and advised that she should report the incident to the police. The wife was referred to counselling in relation to domestic violence.
On 6 February 2010 the wife again attended the doctor and asked for her ear to be checked. The notes record that Dr LL was concerned that the wife probably had a perforated eardrum.
On 10 February 2010 the wife saw Dr V. Dr V’s notes refer to marital disharmony and the wife having been slapped over her right ear.
She was seen again by Dr LL on 12 February 2010 who noted that her hearing had been improved. Dr LL recommended that the wife be referred to a counsellor, Ms KK. On 19 February 2010 the wife again saw Dr LL who completed a referral to Ms KK.
The paternal grandmother, Mrs Meckweth, referred to this incident in an affidavit sworn on 16 July 2012. She deposed to an incident on 5 February 2010 where, she said, the wife attacked the husband. The husband denied that he hit the wife as she alleged. The paternal grandmother did not witness his doing so. However, the injuries which the wife suffered and which were documented by her medical practitioners are consistent with the assault of which the wife complains and I accept that the assault occurred as the wife alleged. There is no explanation in the evidence of the husband and the paternal grandmother which accounts for the injury which the wife suffered.
Mr EE, a Family Consultant, in a Memorandum dated 18 July 2012, recorded that the husband admitted “slapping [the wife] on the ear as (sic) reactive response causing a perforated eardrum”. The husband denied that he made that statement but, having regard to the unreliability of the husband’s evidence, I accept the evidence of Mr EE.
The wife deposed that on 2 July 2010 there was an argument between the husband and the wife in relation to financial matters. She deposed:
[The husband] got very angry at me. I was holding [the younger child] in my arms in the lounge room. She was then about 18 months old. [The husband] came right up to me and I got very scared. I tried to kick him away. He pushed my head into the wall. I then fell. I do not know what happened with [the child] but I lost consciousness. [The older child] was present and saw everything.
The wife deposed that when she regained consciousness the paternal grandmother and paternal aunt had arrived at the home. They took the wife to HH Medical Centre (the practice which the paternal grandmother attended) and then to the home of the paternal grandmother.
The wife saw her own doctor on Monday 5 July 2010. The notes of Dr V record that the wife reported having been assaulted by the husband on 2 July 2010 and punched in the left temple. Dr V recommended that the couple attend counselling. There was some agreement between counsel about a transcript of Dr V’s notes which were difficult to decipher. Dr V noted “Reports assault by husband on 2/7/10: arguing about financial commitments – …reports punch in L temple when nursing infant – NO C x 5 mins…Too scared to confront husband. Children with W. Husband has Police record”. Dr V also noted “Attend Couples Counselling to discuss all aspects of his aggression…access to guns, knives etc. – ongoing therapy.”
I accept that the incident on 2 July 2010 occurred as the wife alleged.
The wife deposed that in March 2011, at the younger child’s birthday party, the husband and his brother BB had a fist fight and the police were called. The husband denied that he punched his brother during the party and deposed that he did not know that the police were called. There is no independent evidence in relation to this incident and no finding can be made.
The wife deposed that on 22 March 2011 the husband destroyed the parties’ microwave oven with a hammer. This allegation is also denied by the husband, who alleged that the microwave oven was damaged by the wife but that he was not aware of how she did this. Again, in the absence of independent evidence, no finding can be made.
The wife deposed that on 1 April 2011 she received a telephone call from the paternal grandmother who told her that the husband and his brother had fought and that the wife’s car had been damaged. The left rear window of the car was broken. Annexed to the wife’s affidavit was the invoice for the repair of the window. The paternal grandmother did not give evidence in relation to this incident. Having regard to the unreliability of the husband’s evidence, I accept that the car was damaged during an argument between the husband and his brother.
The wife was referred by Dr V to a psychologist, Ms XX, on 15 July 2011. Ms XX reported that the couple had attended for counselling “but problems to do with the psychological functioning of the husband interfered with any further contact as a pair”. Ms XX expressed concerns about domestic violence and reported that the wife said that the husband had bashed her and threatened her.
The wife deposed that on 25 July 2011, she and the younger child were in a car driven by the husband. They argued and the husband pushed her head towards his lap and hit her head with one hand while he was driving. The child was screaming. The wife deposed that her face was bruised and swollen. She went to Dr V who noted that the wife claimed to have been assaulted by the husband in the car, that he grabbed her wrist and hair and smashed her head onto his lap, punching her temple. Dr V noted bruising, contusions and swelling. Dr V noted that the wife refused to contact the police but asked that the incident be recorded. The wife deposed that she was afraid to go to the police because the husband said to her “If you call the Police I will kill you”.
The observations of Dr V are consistent with the injuries which the wife alleged were inflicted on her by the husband and I accept that the incident occurred as she deposed.
On 2 June 2012, the husband telephoned the Department of Family and Community Services (“DFCS”) and spoke to a case worker. The conversation between the husband and the case worker is set out, in part, below (italic emphasis added):
If it comes to the point where I have to get rid of my wife once and for all so my kids are no longer being tortured and (several words that are inaudible) then I’m going to do it.
CPCW: What do you mean by getting rid of your wife?
I’m going to do a pre-emptive (several inaudible words) not to harm my kids anymore.
CPCW: Are you implying that you are going to kill your wife?
I’m not going to say anymore than I have already said.
CPCW: That’s a very serious threat to make.
If someone has to defend his children and I’m not talking here just a little harm. This woman is capable of killing her children and stating it is because myself or my girlfriend has abused them. She is very very desperate and has become psychotic.
CPCW: So you are saying she is capable of killing the children?
I promise you that. She is a scientist – a toxicologist.
This CPCW advised caller that his threat to harm [the wife] was very serious and that this had been recorded in this report.
A few minutes later the following was recorded:
CPCW: I just need to come back to the statement you made a few minutes ago. You said you would get rid of their mum.
I’m saying whatever it takes to protect my children. I will go ahead and do it.
CPCW: You said to me you would get rid of her.
I want to get rid of any situation that my children are going to be involved in that will be harm to them.
CPCW: I have documented what you have said.
The husband’s threats were reported to the police and the wife made an application for an Apprehended Violence Order. (“AVO”).
The wife deposed that on 26 July 2013 and again on 30 July 2013, the older child told her that the husband threatened to kill her and that the husband had guns at his house.
The wife deposed that, during the relationship, the husband kept guns in the bedroom cupboard. The husband denied this. The children also told the wife that the husband had guns. The husband at all relevant times had a gun licence. In cross-examination he said that he needed a licence so that he could shoot at the gun club. Although he denied that he had guns, the paternal grandmother gave evidence that there were guns locked in a cupboard in her garage which, she said, belonged to the husband’s brother. Annexed to the affidavit of the wife was a credit card statement showing a purchase from a gunsmith for $793. The husband in cross-examination said that his brother purchased ammunition, using the husband’s credit card, so that the husband could accumulate points. The husband’s brother did not appear to corroborate the husband’s statement.
It is likely that the husband had access to guns during the time the parties lived together and I accept the evidence of the wife that, at least at times, there were guns in the bedroom. As will be explained later in these reasons, the husband continues to have access to guns.
On 28 March 2014, an incident took place in the Sydney CBD involving the husband and his then girlfriend, Ms FF. The husband was seen by police to be kicking a book along and telling Ms FF to “pick up your fucken’ book”. The police officers note concerns about potential violence and that the husband “displayed an instant disregard for police”. The husband was told to cease his behaviour and he threatened to make a complaint. The husband was issued a “move on” direction. When cross-examined about this incident, the husband became enraged and lost his temper, raging at counsel.
On 4 April 2014 there was an incident between the husband and the wife as a result of which the wife was injured in the early hours of the morning. The husband stated that he left the wife’s premises at about 3.30 am or 4.00 am.
The wife called her neighbour and relatives. The police attended and the wife was taken to hospital by ambulance. Her injuries were photographed by her family and by police. A report as to her injuries was prepared by Dr PP.
The children were cared for by relatives and, later on 4 April, taken by them to the police station where they each made a statement. The children did not see their mother at any time between her being taken away by ambulance and making their respective statements. Both of the children told the police that they had seen their father assault their mother.
The husband was charged and there was a jury trial lasting nine days in the District Court of New South Wales in about April 2015. The husband was not convicted.
In the course of the trial the children were cross-examined by Senior Counsel for the husband. They were aged almost eight years old and five years old at the time of the assault and a year older when they were cross-examined. The children perceive that they were called liars by Senior Counsel for the husband in the course of the trial and that they were not believed. The older child, in particular, is very angry about that experience. The cross-examination of the children concentrated on discrepancies in their evidence. At no time was it put to the children that their father did not assault their mother.
The husband maintains his denial that he assaulted the wife. There is no doubt that the husband was at the wife’s home that night. There is no doubt that the wife was injured. The photographs show her with blood shot and bruised eyes, a split lip and other cuts and bruises. Dr PP gave evidence that the injuries to the wife’s face were consistent with her version of the event.
It was not put to the wife, either in the criminal trial, or before me, that any person other than the husband caused those injuries. It was not put to the children in the criminal trial that any person other than the husband caused the injuries to the wife.
The wife was assaulted and injured on 4 April 2014. No one other than the husband is suggested to have caused her injuries. I am satisfied that it was the husband who assaulted her.
The effect of that assault, particularly on the children, will be discussed later in these reasons.
THE HUSBAND’S PSYCHIATRIC EVIDENCE
In November 2012, the husband, in the course of his employment, was the victim of an armed robbery. As a result of that incident he sought compensation.
None of these matters were disclosed to the wife, to the Court, or to Dr R.
A subpoena was issued for the production of the file of the workers’ compensation insurer. The husband objected, unsuccessfully, to the inspection of those documents. It was only when the medical reports produced by the workers’ compensation insurer were inspected that the extent of the husband’s psychiatric illness was discovered.
On 23 January 2013, the husband was examined by Dr SS, a psychiatrist, who produced a report dated 22 February 2013 addressed to the workers’ compensation employer. Dr SS in his report notes that the husband’s general practitioner had diagnosed the husband as suffering from post-traumatic stress disorder (“PTSD”) and psychosis.
On 23 January 2013, the husband was accompanied by his brother BB to the appointment with Dr SSo. Dr SS commented that the husband’s brother was a great help because the husband was in a very unsettled mental state. From statements made directly by the husband, Dr SS concluded that he appeared to be suffering from a paranoid system of belief.
The husband told Dr SS that he needed to protect himself and kept a sword and a knife in his bedroom “for when they come”.
On direct inquiry Dr SS uncovered that the husband was concerned his food may be poisoned. The husband found the interview uncomfortable and asked to leave after about 35 minutes and Dr SS elicited further history from the husband’s brother. Dr SS noted that the husband appeared to be paranoid, suspicious, and extremely wary. He appeared to be responding to internal fears and / or auditory hallucinations. Dr SS noted that it was difficult to evaluate the husband’s cognitions but that he appeared to be of average intelligence. Dr SS concluded (underline emphasis in original):
It was my diagnostic opinion based on this single interview and through history from family members who have been living with him that this 34 year old single [professional] appeared to be suffering from a paranoid mental state. It was particularly severe on the day that I saw him …
There was no history given of any violence towards any family or any member of the public. I was given no history of a forensic nature. I was given no history of a head injury, illicit drug use, intellectual disturbance, motor vehicle accident or recreational head injury which might have accounted for his mental state. I was informed he was in good general health and was not taking any medications on a regular basis which might have accounted for his mental state.
The examination did not seem in keeping with the consequences of an assault or the Worker’s Compensation claim. The findings were more in keeping with a primary psychosis – but this needed further evaluation.
Progress
The mental state and the history given to me made me very concerned this man needed to be conveyed for evaluation, possibly at the [YY] Community Mental Health team or Emergency Department which could lead to admission to Psychiatric hospital. I outlined this recommendation to his brother who indicated that he would try to do so. I further, said that in my opinion the possession of weapons by this man concealed in his bedroom could represent a serious safety risk and this was a matter of some importance.
Dr SS contacted the paternal family’s general practitioner and explained the seriousness of his evaluation. On the same day, he attempted to contact the husband, BB and the paternal grandmother. Dr SS spoke with the paternal grandmother the following day, 24 January, but she appeared not to appreciate the possibility that the husband had a mental illness. In her oral evidence, in cross-examination, the husband’s mother absolutely rejected any suggestion that the husband suffered from a mental illness.
Dr SS was sufficiently concerned about the husband’s mental state that he contacted the Community Mental Health Team at Suburb YY and arranged for the Community Mental Health Team to visit the home. Dr SS noted that the Community Mental Health Team visited but the paternal family did not co-operate and further attempts to evaluate the husband were unsuccessful.
It was Dr SS’s opinion that the husband’s mental state was most likely not linked to any workers’ compensation claim but that he was most probably suffering from a primary paranoid psychotic state which required further evaluation.
In his report Dr SS stated (underline emphasis in original):
There was no response to any attempt to contact him further. The suggestion that he should seek admission was not accepted by the patient. The family may also have reservations about pursuing further psychiatric help for this patient. In such a situation it is extremely difficult to compel an individual to have a psychiatric evaluation.
The general practitioner referred the husband to Dr Y, a consultant psychiatrist. In a report dated 17 March 2013, Dr Y made a provisional diagnosis of PTSD and major depression. Dr Y was cautiously optimistic that the husband may have a speedy recovery from his symptoms.
On 26 May 2013, Dr Y provided an updating report to the workers’ compensation insurer. Dr Y reported that the husband still lived in fear that he would be found and killed by the “office invaders”. He was reported to be extremely anxious, having panic attacks, fearful of being killed during the day and at night time, having flashbacks, being fearful of his house being broken into and that he himself being injured or killed. Dr Y reported that at night the husband would tie black cotton threads between plants and bushes as a simple detection technique to see whether people had come during the night to break into his house. Dr Y reported that the husband had developed auditory vocal hallucinations which were clear and vivid.
On 11 June 2013, the husband was referred to Associate Professor RR, a consultant psychiatrist, who produced a report for the workers’ compensation insurer dated 12 June 2013. The husband was accompanied by his brother BB when he attended upon Professor RR. Professor RR stated in the report:
[The husband] is a 35-year-old single man, who currently divides his time between his brother and his sister, on whom he has become profoundly dependent. This was an exceptionally difficult interview to conduct as [the husband] was essentially incapable of providing any form of coherent history. Much of the information obtained was from his brother [BB], who attended the interview with him.
The husband told Professor RR that he hears voices and described periods of what sounded to be “derealisation as well as a number of mini-fugue states where he essentially loses long periods of time, altered perception of time and pain.”
Professor RR reported “His brother [BB], reported that he had a propensity to violent outbursts and threatened self harming behaviour.” The husband told Professor RR that he felt controlled by drugs and “the voices”.
Professor RR reported:
[The husband’s brother] reported that he effectively remained in bed for the entire day, has to be essentially fed and changed by his family due to his diminished motivation or drive. His family supervises his medication, drives him to appointments and notes that at times, he either stares or seems preoccupied with internal phenomena. [The husband] stated that during these periods, “I am waiting for things to come to me.”
In relation to the husband’s mental state examination, Professor RR reported:
[The husband] attended the interview with his brother. He was dishevelled, unshaven, malodourous. He walked with the assistance of crutches. His affect was severely restricted, almost to the point of blunting. He described his mood as “empty”. There was a poverty of spontaneous speech and poverty of content of speech. He described a number of persecutory and somatic beliefs, which seemed quite bizarre. He described phonemic and non-phonemic hallucinations. He did not appear to have any insight into these being abnormal, believing in some measure, they were real. His presentation was somewhat perplexed and preoccupied but there was periodic agitation particularly when pressed on details. He voiced hopelessness without suicidal ideation. He denied any malevolent intent. I was unable to assess his cognition, but there was no evidence of him being clouded or having an impaired sensorium. He had difficulty sequencing his history, often deferring to his brother.
Professor RR stated that the husband presented a diagnostic dilemma. He reported that the husband presented as quite ill, with what appeared to be a psychotic episode. Professor RR said that “Ideally [the husband] should have a period of inpatient care, to observe his mental state and the stability of his symptoms over time, as well as trying to rationalise his psychotropic treatment in an inpatient medically supervised setting.”
Professor RR was unable to provide a definitive diagnosis. Professor RR described the husband’s presentation as bizarre and suggested that malingering or factitiousness could be considered.
On 9 July 2013, a review was conducted by rehabilitation consultants, Procare, and Dr Y. The rehabilitation consultant, Ms PZ, prepared a report for the workers’ compensation insurer dated 18 July 2013. Ms PZ stated:
Dr [Y] reported [the husband] had recently experienced symptoms of paranoia, auditory hallucinations, panic attacks and anxiety. Dr [Y] reported that [the husband] recently travelled overseas to [Southeast Asia] (Procare are unsure of the exact details or reasons behind this trip however, Dr [Y] stated [the husband] may have travelled there for a wedding.) Dr [Y] indicated [the husband] reported during his stay in [Southeast Asia] he was in excruciating pain around his cheek area due to his recent diagnosis of trigeminal neuralgia. He advised that [the husband] was admitted to hospital while staying in [Southeast Asia] and it was reported he became violent towards nursing staff due to the pain he was experiencing. Dr [Y] stated that [the husband] is not known usually known (sic) to be violent.
The report stated:
Dr [Y] explained that [the husband] is currently residing with his parents in … (sic). He advised he is married but he is currently separated from his wife due to his current state. He reported having 2 young children (ages are unknown). Dr [Y] indicated he has isolated himself from society and spends his time in the family home upstairs watching television. He advised since the injury he has placed surveillance cameras in the home due to fear the alleged attackers will find him…Dr [Y] had indicated a long term recovery period.
Dr Y provided an updated report on 26 August 2013 to the general practitioner and expressed concern that the medications which were being prescribed to the husband for other conditions might be interfering with the medications which were being prescribed by Dr Y.
On 27 August 2013, Procare provided an updating report noting that it was recommended that the husband continue to participate in treatment with Dr Y twice weekly.
Dr Y provided a further report on 8 September 2013. He stated:
[The husband] has three diagnoses. (1) Post Traumatic Stress Disorder, (2) Major Depression, (3) Trigeminal Neuralgia, (right side of face). I would like to add that [the husband’s] psychiatric illnesses have been characterised by severe anxiety, persecutory delusions, auditory hallucinations, auditory vocal hallucinations, and fear/terror provoking visual illusions.
Dr Y stated:
Progress has been rather difficult mostly because of the severity of the symptoms he has been suffering, but also because of interference from doctors at different practices who on one hand did not understand the use of antihypertensive to reduce anxiety and nightmares and on the other hand the introduction of the medication, carbamazepine, for the treatment of the facial pain, which caused a worsening/ relapse of his P.T.S.D. and Major Depression.
On 25 January 2014, Dr Y reported:
[The husband] has been physically sick, again, and not being (sic) able to take his medications as directed. He has not been able to attend some appointments because of this and because of his anxiety whereby he finds comfort in social isolation.
[The husband] continues to experience marked mood swings, anxiety and considerable irritability, and now, fortunately, mild auditory vocal hallucinations.
On 12 April 2014, Dr Y provided an updated report where he expressed the view that “At this point in time it is hard to imagine that [the husband] will ever be able to return to work”.
The husband’s workers’ compensation solicitors referred him to Dr NN, a consultant psychiatrist who prepared a report dated 19 September 2014. The husband attended upon Dr NN accompanied by his brother BB. Dr NN noted that the husband’s presentation was disconcerting. He reported:
He sat alone in the waiting room. He made no eye contact when I greeted him sitting down and looking away. He did not return my proffered handshake. He walked into my room and looked around suspiciously. He went to the window and closed the blind. He did not answer when I asked him what he was after.
The husband’s brother told Dr NN that the husband did not work and had much trouble concentrating. He said the husband would sit in his room on his own and he did not read. The husband told Dr NN that people were trying to kill him and that Dr Y “always lies to me and tells me that what I dream is not there but I know – it’s real … I can see it – I can hear it … I can even smell it…”
The husband told Dr NN that “they” interfered with his thoughts. He said that he did not trust his mother and thought she was doing something to his food. In relation to his present circumstances, Dr NN recorded:
He lives with his mother and father. He is single but “I married before.” However, “I left her a long time ago.” I asked why he left her. He replied “I don’t want to be with this person any more (sic).” He has two children who are “small … under ten” They comprise a boy and a girl. He has not see (sic) them for a long time and does not know their whereabouts other than they are with their mother.
I note that by 19 September 2014 the husband had been charged with serious offences arising out of the assault upon the wife, that he had filed an application seeking a Recovery Order for the children, that he had filed an application seeking to have the wife dealt with for contravention of the Orders which provided for time with the children and that he was actively prosecuting his family law proceedings.
In relation to the husband’s mental state examination Dr NN stated:
[The husband] presented as an overweight swarthy complexioned man who was manifestly distressed, suspicious, hypervigilant, and thought disordered with auditory hallucinations and delusions. He could attend to the interview only with difficulty because of his preoccupation with psychotic phenomena.
He displayed minimal insight saying, “There’s nothing wrong with me because I’m seeing what I’m seeing and [my brother’s] not there to see it”, adding, “Doc, you have to tell them there’s nothing wrong with me – I get treated very bad everywhere – that’s what they want – that I be on drugs and then they come and kill me.”
Dr NN expressed the view that the husband had developed severe chronic paranoid schizophrenia which appeared to be treatment resistant. Dr NN said that he husband’s prognosis was very poor and that he was likely to remain a psychiatric cripple for the foreseeable future.
In relation to causation Dr NN reported:
I note that one would not ordinarily develop a psychotic illness of this severity without significant premorbid vulnerability or predisposition. That said, severe psychological trauma can certainly trigger the de novo emergence of psychotic illnesses such as schizophrenia. I note that the nature of the trauma lends itself extraordinarily well to the adoption of a paranoid and persecutory mindset. This man believes that people are out to kill him relying as best as I can tell on the reality this is precisely what happened.
Sadly, I believe [the husband] has reached maximal medical improvement. There is no evidence as best I can tell of pre-existing impairment.
Dr NN stated that the husband was too pre-occupied with his psychotic experiences to travel safely. He stated that the husband is incapable of marrying, having a partner, or raising children. In a letter to the workers’ compensation insurers dated 10 November 2014, Dr NN stated:
…because of the severity of his psychosis, I don’t think he has the capacity to understand legal proceedings or to give instructions. I note he was not capable of giving an account of himself or of the critical incident. Thus, for example, he would have great difficulty giving instructions with regard to medical reports dealing with his psychiatric state.
On 26 November 2014, the husband was assessed by Dr TT, a consultant psychiatrist. Dr TT commented that the husband was moderately agitated and paranoid for much of the interview and was not able to provide much in the way of chronological history for the past two years. The husband told Dr TT that his family tried to make him sick and that “they were trying to get rid of me.” The husband said that his family were going to kill him and take everything he had. The husband confirmed that he had been seeing Dr Y but could not record specifically seeing Dr SS or Professor RR. Dr TT stated “[The husband] indirectly alluded to the end of his marriage in the year since the robbery, and estrangement from his children, him no longer seeing or having any shared custody of them.”
The husband told Dr TT that he experienced auditory hallucinations. Dr TT said that the husband expressed persecutory delusional personal beliefs, specifically that people break into his house and that his family are trying to kill him. In relation to the husband’s current level of functioning, Dr TT stated:
[The husband] states he is unable to work in any paid or unpaid capacity, and is not undertaking any study. He stated he does live independently, no longer living with family, but states at times he is unable to stay at his residence and will sleep in his car. He uses a tablet device to make phone calls and access the internet, having gotten rid of his phone due to persecutory beliefs. His family manages his finances. He states he cooks twice a week and eats more takeaway. He stated he is suspicious of his family cooking. His mother does his laundry and cleaning, as do longstanding family and friends. He states that family, friends and his mother come to keep him company, clean his house and check if he has washed his hair and changed clothes. He stated he can sometimes go two weeks without washing his hair. He states he is able to drive a car, but states to drive quite badly (sic), going through red lights and being involved in a number of traffic violations.
Dr TT reported:
[The husband] reported some attempted deliberate self-harm stating, “I have done a lot of stupid things: I once drove with my eyes closed to see how far I could go without crashing”. He added, “I’ve done stuff with a red light. I see what happens if I don’t stop”, stating he did this before being commenced on lithium carbonate.
In relation to the husband’s forensic and legal history Dr TT stated “he had a court case in 2014 relating to five or six traffic offences, stating ‘I just can’t concentrate on the road’. He states he has lost his driver’s licence and alluded to a number of court presentations but could not elaborate on these in any way.” Specifically the husband did not tell Dr TT of the charges which were pending in relation to the assault on the wife or, presumably, anything about the family law proceedings.
In relation to the children, the husband told Dr TT that he has no custody or access to his children and wasn’t able to say when he last saw them. He could not recall their ages. Dr TT reported:
He drives a car, and states he holds a NSW driver’s licence, though at another point of the interview stated he had lost his licence. He was unable to nominate his source of income, specifically whether it came from family, workers’ compensation or a disability support pension. He alluded to driving interstate, but wasn’t able to provide any information on this.
The husband reported auditory and visual hallucinations. He denied any specific suicidal ideation. Dr TT commented that the husband expressed delusional beliefs of a persecutory nature relating to family and unknown persons. The doctor noted that the husband appeared to have little insight into his condition, and was not able to recognise symptoms as typical or acknowledge the potential benefits of treatment. His knowledge of his current treatment was limited to a marked degree. Dr TT observed that after the assessment, the husband was escorted by his brother to the van which was parked within sight. He noted that the husband’s brother had to guide him on two occasions on the short walk to the van. Under the heading “Diagnosis” Dr TT reported:
Based on my clinical examination [the husband] has a chronic psychotic disorder, most likely a chronic Schizophrenia. He may have posttraumatic stress disorder, but it was difficult to identify all of the symptoms necessary to diagnose his condition. On balance, and based on accompanying documentation it is likely he has both schizophrenia and PTSD.
With respect to the diagnosis of schizophrenia, [the husband] has delusions, hallucinations and negative symptoms (criterion A) and meets criteria B, C, D, E and F.
With respect to the diagnosis of PTSD. [The husband’s] involvement in the armed robbery meets criterion A for this diagnosis. He reported distressing memories of the incident (criterion B), though it is not clear to what extent some of his memories may be delusional or incorrect (i.e. his recollection that two other employees were killed shortly after the incident). He reported avoidance of the … area (criterion C) since the incident. He reported difficulty recalling some aspects of events immediately after the incident (criterion D) and other symptoms within this particular symptom group. Hypervigilance criteria were met (criterion E): reckless or self-destructive behaviour, hypervigilance and sleep disturbance.
Dr TT specifically disagreed with Dr Y’s assertion that the husband may have psychosis as part of his PTSD and considered these to be separate conditions. Dr TT noted that psychotic symptoms are not in the DSM – 5 diagnostic criteria for PTSD. Dr TT stated that the husband’s clinical presentation was consistent with a chronic psychotic disorder, but his clinical features of psychosis were not consistent with an armed robbery although his PTSD symptoms were consistent with an armed robbery. Dr TT said “It is my opinion [the husband] has two significant psychiatric disorders, schizophrenia and PTSD.”
In relation to the husband’s prognosis Dr TT said:
It is my clinical opinion that [the husband] has reach (sic) maximum medical improvement. This is based on the fact he is currently seeing a psychiatrist on a regular basis, has been prescribed a range of psychotropic medications over the past two years, and has not been able to work or maintain usual psychosocial functioning at this time. Even with optimisation of treatment, [the husband] is unlikely to substantially improve in the next six months, in my opinion.
Dr TT also said:
It is my opinion that [the husband’s] schizophrenia is permanent. Given the presence of a disabling psychotic disorder, it is also likely that his PTSD and resulting impairment is also permanent, as he is unlikely to benefit from individual cognitive behavioural therapy, and has not responded to pharmacological interventions to date.
In a document entitled “Psychiatric Impairment Rating Scale (PIRS)” Dr TT noted “[The husband] states his marriage has ended since ceasing work, and has no contact with his two children. He provides no care for children, and is not able to provide care for his parents.” Dr TT noted that concentration deficits were evident with questions having to be repeated or with the husband becoming easily distracted by noise outside the premises.
In a report dated 1 June 2015, Dr Y reported to the workers’ compensation insurer that the husband suffered chronically, on a day to day basis, from usually considerable paranoid delusional ideas. Dr Y reported that the husband had significantly impaired attention, concentration and memory so that there are sometimes occasions when he is not able to comprehend the conversation he is involved in. His day to day living was overseen by his parents and siblings who look after many of the practical details of his daily life. Dr Y noted that the husband can get quite paranoid in shopping centres. Dr Y’s prognosis was not positive.
On 1 June 2015 the husband was assessed by Dr GG, a consultant psychiatrist, for the purpose of the workers’ compensation claim. Dr GG noted that the husband had become progressively more isolated and withdrawn from his immediate family. He interacted minimally with his family and spent significant periods of time in his car either travelling or sleeping. At that stage the husband was seeing Dr Y twice a week. The husband reported feeling vulnerable “that they are coming”, being hyper-reactive to certain smells and generally hyper-vigilant. He reported that he would often hear footsteps and see shadows. He said that he heard people whispering and also heard noises if he attempted to read. The husband described panic attacks, particularly at night, and said he had difficulty sleeping. The husband described always having a knife by his side. Dr GG reported:
At times he will become frustrated and may “kick a wall”. He is also depressed and pessimistic about his future.
[The husband] has lost trust in his friends and his immediate family. He also has doubts about his treating psychiatrist.
He describes poor concentration, cannot watch television, and has difficulty reading.
He does drive but apparently has incurred numerous traffic offences because of his poor concentration.
The husband reported that he had withdrawn from all his friendships and had difficulty relating to his parents and siblings. He said that he may spend days living in his car and eating takeaway food. He said he did not shower every day and did not change his clothes regularly. He said that he tried not to wash his hair because of always wanting to have his eyes open because of his fears.
Dr GG recorded:
On mental state examination [the husband] presented as a man appearing older than his stated age. He was unshaven, wore shabby clothing, and was generally dishevelled.
He was restless throughout the interview, frequently standing up to check the door and the windows. He appeared also at times to be having auditory hallucinations.
His manner was extremely guarded and he was unable to give cohesive history, although with time did relax a little and was able to answer some questions. In general however, he was preoccupied with his fears.
[The husband] described auditory hallucinations and also paranoid delusions. There was some evidence of loosening of association. His capacity for insight and his judgement was poor. His general intellectual level appeared in the average range.
Dr GG concluded:
[The husband] suffers from chronic paranoid schizophrenia characterised by auditory hallucinations, paranoid delusions, and thought disorder.
He also describes symptoms consistent with a post-traumatic stress disorder, including hyper-reactivity to and an avoidance of situations which remind him of the robbery of … November 2012, hypervigilance, and a pre-occupation with the robbery and the fear he had for his life at the time.
He appears also to be depressed and socially withdrawn as part of the post-traumatic stress disorder.
Dr GG concluded that the husband’s condition has reached “maximum medical improvement”. Dr GG certified that the husband’s impairment is permanent.
In a consultation with the general practitioner, Dr UU, on 21 January 2013, Dr UU recorded that the husband became aggressive with his brother when his brother tried to stop him leaving the room. In a consultation on 24 January 2013, Dr UU was sufficiently concerned to telephone the mental health team to discuss whether or not the husband should be scheduled.
Dr R, a child and family psychiatrist who was appointed as the single expert in these proceedings, interviewed the husband on 24 August 2015. Dr R had no information about the previous psychiatrists or psychiatric interventions. In his report Dr R stated:
He was identified to have an abnormal mental state examination. At the first interview he was unkempt, unwashed, with a blunted affect (reduced levels of emotional responsiveness). This however was improved when seen on the second occasion for the family assessment. He reported both depressive and paranoid symptomatology. The stress of the family circumstances and recurrent litigation had been an overwhelmingly stressful experience for the [husband] precipitating such symptoms. He had thus experienced reactive depressive symptoms in response. He had also experienced psychotic symptoms. He suffered paranoid delusions. This was evident in the Affidavit material. He had paranoid thoughts about being poisoned by the [wife]. It could not however be excluded that her alleged statements had precipitated such thinking. He reported perceptual abnormalities which amplified his experience of insecurity. This impacted on his ability to care for himself and function. His insight into such experiences and the need for treatment was impaired.
Diagnostically, the [husband] was identified to have a significant psychiatric condition warranting further assessment and treatment. This had not been provided to date. When recommended, the [the husband] was ambivalent about pursuing such an intervention. The differential diagnosis included a psychogenic pain syndrome in combination with a psychotic disorder. His symptoms were suggestive of an evolving Schizophrenic illness. This warranted assertive psychiatric intervention. It was recommended that he commenced an anti-psychotic medication to address his psychotic symptoms and assist his agitation, pain and general functioning. His impaired mental state and pain impaired his ability to attend the booked appointments for the assessment. This highlighted the impairment in his general functioning and parenting capacity.
After Dr R’s report had been released he was provided with the documents which were produced by the workers’ compensation insurer including the reports of the psychiatrists to which reference was made earlier in these reasons. Dr R, in an addendum to his report dated 6 November 2015, commented:
These reports raise questions regarding [the husband’s] honesty during the expert assessment. He was identified as a psychotic process, most likely Schizophrenia which required assertive psychiatric intervention. He failed to disclose previous psychiatric assessments or treatment, despite detailed questioning relating this.
Dr R went on to say:
When interviewed on 24 August 2015, [the husband] failed to identify his exposure to armed robbery which had allegedly precipitated Post-Traumatic Stress Disorder, two years of psychiatric treatment with Dr [Y] and previous assessments. His failure to do so raises questions regard (sic) to the veracity of his disclosed experience, as identified by Associate Professor [RR] in June 2013. He and his family failed to acknowledge that he had been diagnosed with Schizophrenia and that he had treated for his condition. The paternal extended family similarly failed to disclose this when the report writer expressed concerns regarding the [husband’s] mental state and impaired functioning.
Dr Y provided an updated report for the purpose of these proceedings dated 18 November 2015. Dr Y confirmed his opinion that the husband has had very severe symptoms relating to PTSD, predominantly severe anxiety, fear, paranoid fears of being injured or killed by the perpetrators, episodes of auditory hallucinations, panic attacks, hyper vigilance and rapid mood cycling. Dr Y expressed the view in his report that there had been a marked improvement in the husband’s wellbeing since the middle of 2015 after a change in medication. (It is noted that Dr R saw the husband in the period when Dr Y saw a marked improvement in his wellbeing and a reduction in his symptoms.) Dr Y said that in more recent months, the husband has been reliable regarding taking his medications. (That statement was not borne out by Dr Y’s notes.) Dr Y acknowledged that the stress of the family law proceedings was a destabilising agent and he was not able to say how well the husband may function when these proceedings are over.
Dr Y’s notes were produced to the Court. On 21 January 2014, the husband told Dr Y that some television programs made him angry and that his relatives get scared if he ventilates his anger.
Dr Y recorded that in a consultation in February 2015, the husband told him that when he had been staying at his uncle’s farm he thought that he was being attacked, he heard voices and was fearful for his safety. The husband used a shot gun and fired 15 boxes of cartridges, blasting away a large area of bush. At that consultation, the husband told Dr Y that he was fearful of being attacked.
On 23 March 2015 the husband told Dr Y that he stopped taking all his medications except Lyrica three weeks ago. He said that he was angry and felt that he was being watched.
On 2 June 2015 the husband told Dr Y that the drug Ritalin, which had been prescribed by Dr Y, made him angry and caused auditory hallucinations and that he stopped taking Ritalin two days previously. The husband reported episodes of anger.
On 18 August 2015 Dr Y noted that the husband gets irritable and aggressive.
On 9 September 2015 Dr Y noted that the husband intended to pursue the wife as a malicious litigant.
On 29 September 2015, Dr Y noted the husband had anxious ideas about being followed, imagines people are watching him, imagines sounds. Dr Y queried whether the husband was experiencing auditory hallucinations. Dr Y advised the husband to go to hospital but could not recall the reason.
Dr Y noted being told by the husband that he had been diagnosed for the purpose of the workers’ compensation claim as being “paranoid schizophrenic” and that this diagnosis would “work against him regards access visits to his children”. Dr Y noted:
So he believes that it’s possible that WorkCover/insurance don’t want him to receive a v. large sum of money hoping that, if he refuses it, he may then be able to fight the diagnosis of paranoid schizophrenia in Family Court and then be able to have access to his children.
Dr Y further noted:
he says, the WorkCover/insurance, will try to remove me from being his treating doctor (I’ve forgotten his reasoning) – and they will start the process by wanting access to his notes very soon.
On 20 October 2015 Dr Y noted that the husband had experienced unpleasant side effects from medication and had stopped all medication. Dr Y noted:
Concerned that his equipment encryption has got the attention of the Minister of Defence.
On 23 October 2015 the husband still had not re-stabilised since he ceased taking his medication “last weekend”. Dr Y noted that for the last three weeks the husband had been hiding away from home, thinking he was being followed.
On 27 October 2015 the husband was seen by Dr Y with his sister Ms Q Mackweth. Dr Y noted “He has unwisely stopped all meds”. The husband told Dr Y that his parents had sold his house to pay debts and that someone had forged his signature as well as stolen his money.
On 30 October 2015, Dr Y noted that the husband seemed more relaxed and less pressured and Dr Y hypothesised that the husband may be entering a more dangerous phase, and that the husband’s persecutory ideas may develop into harming others.
In relation Dr Y’s hypothesis as noted, Dr R, in cross-examination said:
I think it is a specific phase of illness, however, that the psychiatrist is referring to. Clearly, Dr [Y] is of the opinion that [the husband] is suffering from a mood disorder and has been suffering from depression. When a person is severely depressed, they often do not have the motivation and capacity to act upon their feelings of hopelessness and, in particular, suicidality. It is – I – it has been long identified in the psychiatric literature that one – during the initial recovery phase, when a person is feeling more organised, more motivated, has more energy but is still depressed and still feeling hopeless about themselves and their circumstances – that that is a particular time of risk. And so it would be my understanding from reading the notes – without the interpretation of what Dr [Y] said – that he is musing that there’s evidence of recovery. This is of concern, given that this phase is associated with increased risk of suicidality. So that would be my understanding about that particular focus. The other observation, clinically, is that sometimes there can be a sense of calmness in assessing a person who has previously been disorganised, and the reason they present as being calm is because they have a clear, you know, course of action that they feel resolved upon, and whether – again, whether he’s identifying that or not is – is another question. Obviously, there are lots of question marks. He goes to say his persecutory ideas may develop into harming others or hiding away, moving to various hotels at night, which may not be ..... but perceiving distrust of the legal proceedings. Clearly, he identifies considerable concern, in his clinical records, regarding issues of dangerousness, even though the mental state of [the husband] at that time appeared calmer. And in light of all the information we’ve – we have been exploring, I – I think it is an understandable concern that Dr [Y] is identifying in his clinical records.
On 3 November 2015 Dr Y noted that the husband had resumed taking only half the prescribed doses of his medication.
THE EVIDENCE OF MS S
Ms S was the children’s treating psychologist who gave evidence in the wife’s case. She had prepared a report in June 2013 and a further report dated 9 May 2015 and her notes were available in Court. She was cross-examined. Ms S expressed the opinion that it would not be in the best interests of the children for them to resume seeing their father. She proposes to continue to treat the children. In relation to future plans she said:
At this stage, it’s pretty much to support them through what they’re – what’s happening right now. Again, the theme from [the older child] has been that he wants things to end. He said that he wants to stay with his mum. He doesn’t want to see his father. [The younger child] has said similar – expressed similar words as well. So, at this stage, my role has been to support them through the process more so because of what – what I’m finding is that each time the legal proceedings comes – comes into play, their symptoms either exacerbate and either the challenging behaviours come out, such as the aggression or hitting or, more particularly with [the older child], he becomes very angry. So it’s more about supporting them and supporting mum to support them, as well, so that psychologically they’re not harmed further and they’ve reach their milestones that they should be at their age.
In cross-examination by the ICL, Ms S said that the older child was very angry about the District Court hearing. She said:
He was tearful. He felt that no one believed him. He said that he was called a liar. No one believed that he – what he had witnessed. He was – yes. He just became quite aggressive, angry, tearful. Yes. That was what was exhibited.
Asked about the effect on the older child of the experience of the District Court proceedings, Ms S said:
So what we’re finding is he’s unable to regulate his emotions, so he comes across as quite angry, quite aggressive, quite frustrated. At the same time, he would go from there to another extreme of being quite clingy towards his mother, as well, and he becomes quite hyper-vigilant. And, again, that’s – we see that in terms of him being – becoming quite protective over his mother, over his family. So, once again, the impact is he goes into a survival mode whereby he believes that threat is imminent and, because no one is believing him, he’s powerless and anything can happen. And in his – and in his – the way he’s thinking is, because of what he has witnessed, is that him or his mother can be harmed or his sister can be harmed by his father.
In relation to the younger child, Ms S said:
I would say she was disappointed and she was angry, as well, and she felt like she wasn’t believed.
Ms S said that both children are very attuned to their mother’s emotional state and that the older child, in particular, sees it as his role to protect his mother.
Asked how the older child might react to seeing his father, Ms S said:
His behaviour will definitely will regress. His symptoms will exacerbate. He will go into what we call a fight, flight or freeze response in terms of the impact of – of the trauma, given that he has been fighting this for a number of years in terms of wanting to be with mum and wanting to be safe. It would impact him psychologically. He will not be reaching his milestones. He will be constantly in a – in a place of fear, and especially given that he has voiced to many professionals that he does not want to be with dad.
In relation to the younger child, Ms S said:
[The children] cope very differently with stress and trauma. [The older child] tends to go into a flight reaction response, which is pretty much to avoid the – the situation that he sees as threatening, whereas [the younger child] does do that, but, at the same time, she also tends to cope by trying to please and appease. So, again, possibly, she will go into that, using – implementing that kind of strategy, which, again, would mean that psychologically she will be – she will be continued to be harmed, because she will not be – she would be not meeting her milestones as she should be, because her whole focus will be in trying to survive and trying to ensure that she is safe.
Ms S said that it would be detrimental to the relationship between the children if the younger child spent time with the husband but the older child did not.
As Ms S will continue to be the children’s psychologist, it would be helpful for her to be provided with a copy of the two reports of Dr R. The younger child’s willingness to engage with her father and the paternal family is a very relevant matter of which the therapist should be aware. In addition, Ms S should have a copy of these reasons which may assist her in her ongoing work with the children. She will understand that both the reports and the Reasons for Judgement should not be shown to or discussed with the children.
DR R’S REPORTS
Dr R reported that the children were brought to the assessment by the wife. They were also accompanied by the wife’s cousin, Ms AA, whom they called aunty and the maternal grandmother, Mrs Z. Dr R reported:
A delightful rapport was observed between the children and family members in the waiting room. [The older child] was playing with his iPad, which he readily relinquished for the assessment. [The younger child] had brought soft toys with her. [The wife] was observed to be interested, supportive and encouraging of the children in her interactions with them. The children chatted in a relaxed, comfortable and enthusiastic manner. They both smiled and made jokes, which was greeted with delight by the members of the maternal family.
The older child told Dr R about his experience in the District Court. The child said: “Court is a dreadful place to me because of [Senior Counsel for the husband] …. because he bugged me for two weeks so I get mad with him.” The child also said “It was about trying to put Dad in goal. It was the Police against Dad’s family. It was very confusing. Because [Senior Counsel for the husband] asked questions and didn’t allow me time to answer and he made up lies and if I was in the Court and I had a chair I would whack him!” The older child told Dr R that “they” had been trying to put the husband in goal “Because he came into our house one night, about a year ago now, on April fourth, …, and what happened, he came into our house that night and he tried to murder us.” When Dr R asked the child what had happened, the child replied “I didn’t see what happened, but I’m pretty sure that he punched Mum in the face and then he hanged Mum over a railing and threatened her.” When Dr R asked the child how he knew this, the child responded “Because Mum told me”. The child continued “The Court won’t believe me, but [the younger child] woke up first and she told me what happened. And Mum told me what happened and both of these stories are the same. So it’s true.” The older child told Dr R that the Court would not believe him “Obviously. Because they haven’t believed me for ages.” Dr R commented that the older child’s description of the event was devoid of emotional distress and that his affect was incongruent as he remained chatty, happy, enthusiastic and jovial. Dr R commented that there was no change in the child’s demeanour from when he was playing with the maternal family to when he was relaying the events of 4 April, and that there was no evidence of distress or fear as he described those events. The older child was very clear in telling Dr R that he did not wish to see his father. The child said “All I would like to do is to tell him straightforward about what he did and the consequences for it. That you won’t see me and that I won’t like him.” The child said that his father had done a bad thing and had to face the consequences.
The older child described himself as the saddest in the family. He said “Mum and me are tired. She’s sad that she married him which was a bad idea, but I feel sad that Dad would try to kill his children and his wife. He just threatened me.” The child said to Dr R “If I’m going to see him, I’ll be really, really nervous and because he’s really scary. He’s a scary person.” The child identified his mother and himself as the most worried in the family, saying “We’re the same.”
When Dr R asked the younger child how she felt about seeing her father, the child replied “I feel scared. I feel worried. I feel that he might hurt me. Because he hurt my Mummy a long time ago. Because I saw Mum bleeding in her old house. And we moved house. And Mum won’t have time to pick us up. She won’t have time because she gets home very late.”
Dr R asked the younger child why she didn’t see her father and the child replied:
Because the Court says we don’t have to go to see our Dad. But we need a break from seeing our Dad. Because I’m not ready to see my Dad. But my Dad told a lie in the Court. That he didn’t hurt my Mum. That he just came in the house and said hello. And I woke up. And I was hitting dad on the leg. With my hand. First, I was hitting [the older child] on the head and I whacked him on the head with a pillow and said, ‘Go and help Mum’. When I woke up and saw [the older child] sitting up in his bed. But [the older child] said: ‘No. I’m too tired.’ And went back to sleep. Then I put the pillow down and I hit my Dad on the leg.
The younger child told Dr R that there was blood on the railing and she had seen a lot of blood. The child said that although she had not been hit, there was blood on her face. At the conclusion of Dr R’s first session with the children they told him that they were happy to have come and were pleased that their father wasn’t there. The children agreed they would attend a further interview with their father if Dr R was present.
On the next occasion Dr R saw the children with their father. Dr R noted:
The children’s response to the [husband’s] arrival was dramatic. He immediately approached and crouched down in front of them. [The children] both responded by shouting in an agitated manner. They yelled: “No!” as he approached to hug them. [The husband] spoke of wanting to but not being allowed to see them. [The older child] yelled back that he had come to their house to hurt them. In response to the children (sic) distress, the [husband] disputed their experience and questioned: “So, who told you this?” He responded that their mother was found to be lying in Court. [The older child] angrily reported that their father had paid [Senior Counsel for the husband] to terrorise them. [The older child’s] affect was one of anger and agitation rather than fearfulness. He called his father “a piece of shit”. [The husband] defended himself and justified his actions. He questioned why he wasn’t allowed to see them. He retorted that they weren’t scared.
Both [the children] became more agitated and distressed. They yelled and screamed. [The older child] stormed out of the office to find his mother. [The younger child] followed.
After the [husband] left the interview room, [the children] were invited back into the office with their mother. [The older child] was screaming and demanding to leave when asked back into the office.
Dr R commented that the wife was able to settle the children and calm them. When Dr R told the children that their paternal aunt, Q, and the paternal grandmother, Mrs Mackweth, had come to see them, the children agreed to see them provided that their mother remained with them. Dr R reported:
As [the paternal aunt] and [the paternal grandmother] entered the office, [the older child] exploded: “There’s retard number 1! There’s the bitch! They’re annoying! That’s how I see them. I don’t want to talk to you, because you were a liar in the Court.’”
He commented in a blaming tone that [the paternal aunt] was a lawyer. [The aunt] responded: “Who told you that? I was not in Court. How do you know I am a lawyer?” They debated this.
[The older child] retorted: “Can you get them out now? I’m gonna call the Police”. He dramatically took out his mobile phone as if to call the Police. He insisted on leaving the room. [The wife] apologised and commented that they did not say such things in the family home. [The older child] joined [Ms [AA]] in the waiting room and was invited to rejoin the family session should he wish. He refused this offer.The younger child remained in the room with Dr R, her aunt and her grandmother. Dr R observed the younger child engaging in an excited and enthusiastic manner with them. They chatted about clothes, ear piercing, friends, experiences at school and dogs. Dr R observed a delightful rapport between the paternal aunt and the younger child. The child was comfortable for her mother to leave the room and continued to respond enthusiastically and excitedly.
The younger child told her aunt that she might see her when she was older, when she was 16 or 12, or perhaps ten or nine. The child told her aunt “Me and my Mum and [the older child] are scared because he tried to hurt my Mum, he tried to kill my Mum. He’s being (sic) lying to you and the Court. How come if Dad comes to visit me and hurts me? I’d be scared.” When the aunt told the younger child that she would be there during the visits, the child replied “He might hurt us”.
Dr R then proposed that the husband join in. He reported “[The younger child’s] affect immediately changed. She was fearful of her dad coming in. She said that his voice made her feel like crying. She became tearful. In a fragile voice [the child] stated ‘I don’t want to. If he comes and catches me.’”
Dr R reported that the paternal aunt reassured the child and asked her what she was afraid of. The child responded “He’s just really scary to me. And nothing will stop that. I want to see him when I’m 25. I don’t feel like Daddy coming in. It’s hard to say. I don’t feel like Daddy should see me anymore, because Daddy has a scary voice. Can I just not go to see my Dad anymore? Can I go to be with my Mum?”
The paternal aunt continued to talk to the younger child and the child finally agreed that her father could come in but only if he could sit in a chair some paces away and talk about dogs. The husband came in and sat in the allocated place. Dr R commented:
[The younger child] immediately joined in the game that was established by [the paternal aunt]. She smiled as she asked her father about the dogs. [The child] and [the aunt] continued to joke and smile in an enthusiastic fashion. [The child] continued to show off her earrings. She responded in a positive manner to her father. There was no indication of fearfulness.
The interactions between [the child] and her father and aunt and grandmother continued for more than two hours. Their interactions remained delightful and enthusiastic. As [the child] felt more comfortable, she allowed her father to approach her, hug her and hold her in his arms. All family members continued to interact in a joyous fashion.Dr R established a Skype connection so that the maternal family and the older child could watch the younger child with the paternal family. Dr R commented:
[The older child] watched on with interest. He initially asked if he could join in but declined to do so when this was offered. He was frustrated that [the younger child] was playing and interacting with them. He complained that he wanted to go home but calmed down in response to his mother. [The older child] insisted that he did not wish go in and join the other family members as he was scared.
The wife encouraged the older child to join the paternal family but the child said “In my opinion, what’s best for me is not to see him. I’m not going to do it! I’m not going into that room.”
However, the older child interacted with the paternal family through the Skype connection. Dr R described the older child’s interaction with the paternal family as contentious and dismissive. The child was sarcastic and told his father, “If you start to mess with me, I will call [the police]”. When the husband asked the older child whether he was afraid of upsetting his mother, the child retorted “It’s not my Mum. My Mum doesn’t tell me about that. My psychiatrist said that. You lied about Court. I’d love to go on a holiday around the world.” The husband asked “Which Court?” and the child responded “The Family and District”.
Dr R commented that the older child became increasingly preoccupied with the court proceedings. He spoke about his father lying in court. The child became increasingly angry that his father lied in court.
Dr R commented that when seen after the session with the children, the husband spoke with insight about the nature of the transactions with the children. He understood that the children were angry with him and he acknowledged his contribution (presumably a reference to his telling them that their mother had lied in court and that he had argued with them). The husband acknowledged that he had become like a lawyer in cross-examination mode rather than acting as a father.
Dr R recommended that the husband attend a psychiatrist at the ZZ Clinic and gave a referral to an appropriate psychiatrist.
At the conclusion of the family assessment the younger child smiled in photographs with her father, aunt and grandmother and participated in a loving farewell. The younger child then said to the paternal family “I do want to see you, but it’s up to the Judge.”
However, when seen on her own at the conclusion of the assessment the younger child said to Dr R that she did not wish to see her father or his family again. She stated that she would like to see them when she was a bit older, perhaps 12 or 14.
Dr R observed that the older child’s behaviour was driven by anger in the context of his alignment with his mother and alienation from his father rather than by fear, and that the younger child’s expressed fear quickly dissipated in the context of time with her father and the paternal family. Dr R recommended that the children’s contact with their father be re-established on a supervised day only basis, the supervisors to be members of the paternal family. Dr R also recommended that the husband’s contact with the children should be contingent upon adherence to treatment of his psychiatric condition. Dr R stated that the husband requires assertive psychiatric assessment and treatment including medication which might include anti-psychotic and anti-depressant medication. Dr R also recommended that the husband’s treating doctors should be supplied with a copy of his report.
After Dr R’s report was prepared and released, documents were produced on subpoena by the workers’ compensation insurer which included the reports of the psychiatrists to whom reference was made earlier in these reasons.
Dr R was asked to prepare an addendum report after he had perused that material. In the addendum report, Dr R stated:
These reports raise questions regarding [the husband’s] honesty during the expert assessment. He was identified as a psychotic process (sic) most likely Schizophrenia which required assertive psychiatric intervention. He failed to disclose previous psychiatric assessments or treatment, despite detailed questioning about this.
Dr R reported:
When interviewed on 24 August 2015, [the husband] failed to identify his exposure to armed robbery which had allegedly precipitated Post-Traumatic Stress Disorder, two years of psychiatric treatment with Dr [Y] and previous assessments. His failure to do so raises questions regard (sic) to the veracity of his disclosed experience, as identified by Associate Professor [RR] in June 2013. He and his family failed to acknowledge that he had been diagnosed with Schizophrenia and that he had treated for this condition. The paternal extended family similarly failed to disclose this when the report writer expressed concerns regarding the [husband’s] mental state and impaired functioning.
Given the problematic nature of the [husband’s] presentation and the evidence of chronicity, I will need to revise the recommendations as detailed in my previous report, dated 8 September 2015. While the children will benefit from the re-establishment of supervised, day-only contact with the [husband] and paternal extended family, this should be professionally supervised at either a contact centre or through an agency, such as Phoenix Rising. This should be no more frequently than fortnightly basis. Prior to any progression to unsupervised or overnight contact, the [husband] should be required to attend psychiatric treatment and be transparent with regard to his mental state and treatment. Feedback from his treating psychiatrist should be required.In cross-examination, Dr R said that he doubted that a professional supervisor could have managed the interaction between the younger child and her father as well as the paternal aunt had done. However, supervision by the aunt is not an option which needs to be considered as she declined to give evidence.
THE ORAL EVIDENCE OF DR R
Before Dr R gave his evidence, he was given the opportunity to read a number of documents which had been tendered in the hearing but not previously made available to him, including the husband’s criminal record, the entry in the file produced by DFCS noting the husband’s threats to harm the wife on 2 June 2012 and the recent reports of Ms S.
Dr R was also told about the incident of the husband’s discharging a shotgun in early 2015 and shown Dr Y’s clinical notes.
Dr R, having considered the fresh evidence, resiled from his recommendation in the second report and did not recommend any face to face time between the husband and the children. He did not recommend supervised time, even with a professional supervisor because, he said, the husband’s unpredictable psychiatric state made it impossible to predict how he might behave and thus it could not be assured that the children could be kept safe.
In relation to the husband’s access to firearms, Dr R said:
In the context of the issues that we’ve already been discussing, this raises very significant concern. Firstly, it identifies that the [husband] has continued to experience as recently as February of this year paranoid delusions and – and has responded to that in a potentially dangerous manner with the use of firearms. It identifies that he has access to firearms in that particular context and that he has used the firearms to defend himself against his perception that he was unsafe. One would assume that that was a sign of impaired reality testing, that there was no actual threat to the [husband] and, again, is an indication of high risk to him to potentially to others in the context of his perception of risk.
Dr R said that the husband presented a risk to the general public, to the wife and to the children.
Dr R expressed particular concern about the fact that the paternal family, although given opportunity to do so, privately from the husband, did not tell him about the husband’s previous psychiatric history.
He said:
…that was particularly concerning because I – I took them aside, and I expressed concern with regard to their son’s mental state. I told them that I thought that he was showing signs of schizophrenia, that he needed antipsychotic treatment and that it was very important that he have treatment. Similarly, when I interviewed [the husband’s brother] on the initial date, I expressed concern about the [husband’s] presentation. He acknowledged that, you know, he wasn’t his normal self, that he was, you know, more withdrawn. I detailed what [the husband’s brother] had to say about him. At no stage did – and, indeed, I went further, because the [husband] asked who he should see and I provided the [husband] with the name of an appropriate psychiatrist to – to see him, because he had not pursued previous psychiatric treatment. And to – it is essentially bewildering that, given the nature of the [husband’s] subsequent psychiatric history which was, you know, unknown to me at the time, that neither the [husband] nor any members of the – the family who were interviewed separately from the [husband] disclosed that to me.
The significance of the previous history was that Dr R had assumed that the husband was treatment naïve, had not previously been prescribed antipsychotics and was thus much more likely to respond to treatment than a patient who had failed to respond to numerous courses of treatment. Dr R said that he was concerned that the husband’s disorder was treatment resistant, either because he was not taking medication as prescribed or because his illness was so severe that he failed to respond to appropriate medication.
Dr R was unable to understand (as was Dr TT) why the husband was not being treated for schizophrenia or even a schizoaffective disorder. Dr R raised the possibility that the husband’s current treatment was inadequate.
Dr R went on to say:
So the first thing to say is I’m not aware of whether the [husband] has had adequate treatment or not. However, it is my understanding that he has been prescribed a range of medications over a long period of time, over two years. It is my understanding that he was previously referred by Dr [SS] for admission to [YY] Hospital because he was very concerned about [the husband’s] mental state and potential risk and it is my understanding that he has – he has failed to follow through on – on that recommendation certainly at that time. So the first piece of information that was of significance with regard to the [husband’s] mental state was the issues with regard to his psychiatric history. However, of more profound concern was the identification of the [husband’s] dangerousness and the [husband’s] dangerousness was identified in his actions at the age of 17 when he was charged with attempted murder and the circumstances of that have been identified. The – secondly, it was drawn to my attention the interview with the Department of Community Services in 2012 when the [husband] had threatened to a professional that he thoughts of killing the [wife] and, importantly, as recently as February of this year, that he was acting on his paranoid thoughts by using a shotgun to ward off potential intruders and – and parties that were a potential – or were perceived by him to be a potential risk. And so, that combination of his abnormal mental state, which as you identified, had previously been identified but plus that he had made threats to harm the [wife], plus that he had acted in a violent fashion repeatedly over the years is of grave concern and that it is not possible to identify that the father is safe and that there is no risk posed to himself or to others, in particularly – in particular, the family.
In answer to questions from Senior Counsel for the wife, Dr R said that to make an order that the children spend time with their father would be to expose them to an unacceptable risk of harm.
He said that when, in his second report, he recommended that, potentially, professional supervision might be an outcome, subject to the requirement that prior to any progression to unsupervised or overnight contact, the husband should be required to attend psychiatric treatment and be transparent with regard to his mental state he was now of the view that this would be almost impossible to test.
Dr R agreed with counsel for the husband that neither his observations nor some of his opinions, expressed in his first report, were affected by the additional material but said:
I think that the reason that the majority of my opinion is actually affected is that repeatedly during – in the – in the context of my opinion, I refer to questions regarding the veracity of the statements of the [wife] and the children and the veracity of the statements made by the [husband] and so I was struck by the essentially outlandish nature of some of the allegations and statements of the [wife] and of the children and certainly there was a great deal of information but I did not form – it was not possible for me to form a view whether it was factual or not factual and repeatedly during the context of my opinion, I refer to that being a significant question. Now, the recent information essentially supports a range of concerns that the [wife] expressed so the [wife] did express to me a statement about the [husband]– so having – I will just find the – so in – in paragraph 17, she refers to the [husband’s] forensic history and the history of misrepresentation…(In paragraph 20)… there is the account of – of the – of the assaults. She refers to being contacted by investigators from an insurance companies (sic) investigating the [husband] having made a claim in the context of being involved in an armed robbery. I can’t – can’t locate exactly where she made that statement just this minute but she – she made that statement and, again, I had no information regarding – despite the extensive documentation, I had no information regarding that particular – that particular event… And paragraph 75 and paragraph 76 related to – related to firearm – firearms offenses and so on. Now, these are very important areas and, certainly, it was not my understanding that there was any kind of weight to be, you know, given to such statements. There were many, many issues raised. And I did not specifically explore those – that particular issue with the [husband]. However, based on the – you know, the new information that has been provided to me, significant factors which are very relevant to my assessment of the [husband] and the [husband’s] capacity and safety with the children have been identified with regard to the [wife’s] statements as being factual. And at the same time, numerous aspects of the [husband’s] statements to me or omissions in the [husband’s] statements to me have been identified as being not so. And certainly whether it from errors of omission or errors of commission, it was my view that the [husband] misrepresented key aspects of his experience relevant to my assessment… And so the – my recommendations are necessarily altered by that additional information which is referred to in the body of my opinion.
[The younger child] was enthusiastic about her contact with her paternal family and was thus reluctantly willing to see her father again.
Dr R agreed that his opinions in relation to his observations of the younger child with the paternal family were unaltered but said:
…following that interaction, my understanding is that from [[S’s]] clinical records, her treating psychologist – that [the younger child] was – expressed distress following that. And so whilst that observation that I made at the time was not changed, certainly [the child] subsequently expressed a different view with regard to that experience.
Counsel for the husband put to Dr R that any risk of harm to the children would have manifested itself in the period when their time was supervised leading up to 4 April 2014. Dr R, in answer, said that the fact that there had not been violence in the past towards the children did not mean that it could never occur. He expressed concerns about the husband’s fluctuating mental state, the unpredictable nature of his mental state and his psychotic and paranoid ideation.
Dr R agreed that the younger child had expressed positive feelings towards the husband and the paternal family that were “a spark that could be rekindled”, and that the older child’s attitude towards the husband and the paternal family arose from his alignment with his mother. However he did not concede that it was in the children’s interests to re-instate any contact with the husband. Dr R was concerned about the manner in which the husband had acted when initially brought into contact with the children which, he said, was inappropriate and demonstrated that the husband’s mental state fluctuates.
Dr R described the husband’s initial interaction with the children as an exchange of accusations where the children were distressed and became more distressed and the husband became more defensive.
Dr R said that it would be appropriate for the children to have some limited contact with the husband “if they wanted to and it’s safe”.
In answer to questions from the ICL, Dr R agreed that the older child’s perceived experience of not being accepted as a truthful person in the District Court had a detrimental effect on him, and that if this Court did not validate the child’s expressed wish not to see his father that would also have a detrimental effect on him.
Dr R also agreed that if the children were to spend any time with the husband, the wife would be very distressed and anxious and concerned for their wellbeing. In the context of these children being aligned with their mother, and both receptive and perceptive to her experience, they would likely become distressed as well with increasing symptoms of anxiety and possibly behavioural and emotional effects.
Dr R’s opinion was expressed, and his oral evidence given, in circumstances where he did not form a view about whether the husband had assaulted the wife on 4 April 2014.
He said that he recommended against the husband spending time with the children even if it was found that he was not the assailant on 4 April because it was the husband’s current psychiatric presentation that was the greatest concern for the safety of the children.
Dr R said the if the Court found that the husband was the assailant then:
…that amplifies my concern. And certainly if that is the finding then it would confirm that the [wife] has symptoms of post-traumatic stress disorder secondary to that assault. And there was significant – and as I indicated in my report, her presentation was consistent with that, which actually explained her fearfulness, her avoidance and how that was transmitted to the children. If it was confirmed that the [husband] had assaulted the [wife] then there would be good reason for the [wife] to be fearful, for the children to be fearful, with regard to their family’s wellbeing. And it would amplify my concerns with regard to the [husband’s] potential dangerousness and the potential risk to all family members in the context of the [husband’s] mental state, issues with regard to impulse control and expression of anger and violence. And so certainly it would be confirmation of the ongoing risk to the family members with regard to the potential future actions of the [husband].
Dr R said that, given the additional material and given his concerns about the husband’s mental state and potential dangerousness, it was difficult to make any recommendation for contact to occur between the husband and the children and ultimately he did not recommend that any contact, even professionally supervised, should occur.
CONSIDERATION
It is not in dispute that the children would benefit from a meaningful relationship with their father if it were possible.
These proceedings were instituted prior to the insertion of s 60CC(2A) and thus there is no mandate to elevate the need to protect the children from both physical and psychological harm over the benefit to them of a meaningful relationship with their father. However, significant weight must be given to Dr R’s evidence that his primary focus was on the children’s safety and that time with the husband could only be considered if the children would be safe.
The best interests of the children fall to be determined having regard to the additional considerations in s 60CC(3) as it was at the date of filing the application.
Section 60CC(3)(a): The children’s views have been carefully considered by Dr R. I accept that the younger child has a residue of affection for her father and the paternal family. I accept that the younger child’s expressed wish not to see the husband until she is considerably older has to be considered in the light of the interaction that Dr R observed with the paternal family. I accept that the older child’s extreme views are coloured by his alignment with his mother.
I also accept the evidence of Dr R of the importance for the older child of his views being “validated” in these proceedings.
Section 60CC(3)(b) : Both children are closely bonded to their mother and aligned with her. They also have a close and loving relationship with their maternal grandmother, Mrs Z, and their aunt Ms AA.
The children’s relationship with the husband is difficult to assess. The younger child appears to be conflicted between wanting to have a relationship with him and being afraid of him. The older child is angry with the husband rather than afraid.
Dr R was of the view that the children had, in the past, had a very close and loving relationship with the paternal grandmother who had a substantial involvement in their care before and even after the separation of the parents. The younger child’s close relationship with her paternal aunt was obvious in the session observed by Dr R.
Section 60CC(3)(c): Until 4 April 2014 the wife had facilitated the children’s spending time with the husband. When the paternal grandmother was not available to supervise because she was ill, the wife paid for Ms O to supervise even though the husband refused to contribute to the costs. After 4 April 2014 she made an application to the Court to suspend the time the children spent with the husband and the operation of the Orders was suspended. After the District Court trial concluded and the husband was acquitted, he made an application to re-instate his time with the children and that application was unsuccessful.
I accept the evidence of Dr R that the wife would have difficulty supporting any face to face time between the children and the husband.
Section 60CC(3)(d):There is no proposal that the children would be separated in any significant way from their mother. However, Dr R said that the children would express both short term and long term distress if separated from her.
They have not spent time with their father or the paternal family, except in the limited circumstances of the assessment by Dr R, since 4 April 2014.
The orders sought by the wife and the ICL would effect a separation of the children from both the husband and the paternal family. There was no application before the Court by the paternal grandmother, Mrs G Mackweth, or by the husband’s sister, Ms Q Meckweth, to spend time with the children independently of the husband.
An application had been filed in June 2014 on behalf of the paternal grandparents and paternal aunt seeking orders for time with the children independently of the husband. Somewhat chillingly, the application on order 13 sought the following order:
If any one of the following events occur in or outside of Australian jurisdiction in relation to [the wife];
a. Where “the mother” is held imprisoned or detained by whom so ever on a full time without release basis;
b. Where “the mother” is assessed by at least two registered &/or qualified practising Psychiatrists as lacking mental capacity to adequately provide care for “the Children”;
c. is on life support;
d. becomes registered &/or classified as a missing person or;
e. becomes deceased;
That [the children] are to be given full custody to [the paternal grandmother] &/or [the paternal grandfather] on a temporary basis pending final Australian Family Court orders.
The wife deposed that she was disturbed by this application and regarded it as a threat. Her attitude was not unreasonable.
However, when the paternal grandparents and paternal aunt were told that, if they wished to prosecute the application, they would be required to participate in the process of the report of the single expert, and to contribute to Dr R’s fees, the application was withdrawn.
The paternal grandmother continued to hold herself out as suitable and available to supervise the husband’s time with the children. She said, in cross-examination, that she did not accept that the husband had any mental illness or that his time with the children needed to be supervised. She had not told the wife about the husband’s significant impairment after the armed robbery on 12 November 2013. She did not tell the wife about the diagnoses of significant mental illness although she was aware of at least Dr SS’s diagnosis. She actively concealed her knowledge of the husband’s mental illness from Dr R. She did not appear, in cross-examination by the ICL, to understand why it was thought necessary that the husband’s time with the children should be supervised. Dr R said that she was not an appropriate supervisor.
The paternal aunt, who was also nominated by the husband as a supervisor, although she swore two affidavits in the proceedings, was not made available for cross-examination and therefore she could not be considered as a suitable supervisor.
There was no application for the paternal grandmother to spend time with the children independently of the husband but having regard to all of the evidence about the husband’s behaviour and his mother’s denial of the seriousness of his illness, it is unlikely that she would be able to prevent him from being present when the children were with her or that she would seek to do so.
The wife has so little trust of the paternal grandmother because of her perception that the grandmother lied in the District Court; concealed important information about the husband’s mental health from her and from Dr R; her belief that the paternal grandmother would assist the husband in any endeavour to see the children and her fear expressed in relation to the application of June 2014; that any order that the children see the paternal grandmother, however expressed, would likely have the same effect on her as an order that they spend time with the husband.
Section 60CC(3)(e):The practical difficulties involved in any order that the children spend time with the husband arise out of the dangers posed by his illness. No proposal was put by the husband about suitable supervision. He gave evidence in cross-examination that he had made enquiries at a contact centre. He could not remember the name of the centre except that it began with “A”. He did not suggest that the contact centre had been given full and accurate information about the difficulties of the family or the husband’s diagnoses. Any contact centre considering whether to provide services for this family would need to have Dr R’s report as well as a transcript of his oral evidence so as to make an informed decision about the risks posed to staff. There is no evidence that any contact centre, properly informed, would accept this family.
There is also no evidence about how professionally supervised time would be paid for. The husband has not paid his share of the fees of Dr R. He said he had no income and no assets. The paternal grandmother offered an undertaking to pay the fees. She is on Centrelink benefits and has $7,000 in savings. She had not made any enquiries about the cost of professional supervision and had no idea what the costs might be. Her undertaking was meaningless.
Section 60CC(3)(f): The wife demonstrated her capacity to care for the children’s emotional, intellectual, physical, educational and material needs. She has done so since separation. Dr R was critical of the wife’s alienation of the children from the husband and her involvement of the children to ongoing preoccupation regarding the threat posed by the husband, including safety behaviour, hiding from strangers, checking CCTV and recurrently involving the police which he said was detrimental to their emotional development. However his criticism was somewhat tempered in his oral evidence when he was asked to assume that the wife’s allegations in relation to family violence were accepted.
Dr R opined that the husband did not have the capacity to attend to the children’s needs.
Section 60CC(3)(g) :Both the parents come from a Christian background. The wife is Phillipina and has extended family in the Philippines. The children have expressed a desire to visit those relatives and spend time in the Philippines. The husband’s family is of Middle Eastern origin. It may be that, as a result of the orders that will be made, the children will not, in the foreseeable future, have the opportunity to enjoy and embrace that culture. That is a matter to be weighed against the other factors for consideration.
Section 60CC(3)(i):There is no doubt that the husband loves the children and sincerely wants to have a relationship with them but his capacity to do so is affected by his propensity to violence, his violence against the wife, his mental state and his mental illness all mitigate against his being able to fulfil his responsibilities towards them.
Sections 60CC(3)(j) and (k):I have already dealt with the issue of family violence. The husband has perpetrated violence upon the wife and this has affected the children. There is a family violence order in force for the protection of the wife and the children until April 2016. I accept the evidence of Dr R that, having regard to the husband’s psychiatric illness, there is no way to ensure that, if the children spend time with the husband, they can be protected from further violence.
Section 60CC(3)(l): The Minute of Orders upon which the husband relied sought orders that he be permitted to institute further proceedings after 15 months of supervision, seeking that time not be supervised.
Counsel for the husband submitted that there should be an order made which would permit the husband to renew his application to spend time with the children in any event, if he can demonstrate that he is fit to do so. That application, in effect for any order made at the conclusion of this hearing to be made as an interim order, was opposed by the wife and the ICL. Dr R gave evidence about the difficulty of assessing the husband’s progress in circumstances where he was not frank with the assessment process and has actively concealed vital information from the single expert, with the assistance of his family. There could be no confidence that, at some future time, the husband would be frank and open with Dr R in any further assessment. The ICL submitted that the children had been involved in the process of this litigation and the District Court proceedings for over three years and that the children need these proceedings to be finally resolved and to get on with their lives. That submission was supported by their therapist. I accept that it is not in the interests of the children to make any interim order in these proceedings.
Section 60CC(3)(m): The husband has not fulfilled his obligation in relation to the financial support of the children. In a period where he has received, according to the records produced by the workers’ compensation insurer, almost $2,000 per week and spent $450,000 on legal fees, he has provided little financial support for the children. The wife has been responsible for their financial support including their school fees.
CONCLUSION
It is not possible for the children to have any face to face contact with the husband that will be keep them physically or psychologically safe. No orders will be made for face to face contact.
Dr R considered that it would be appropriate for the paternal family to communicate with the children in writing and by sending gifts. It is also appropriate that he be kept informed of important matters involving the children and provided with information about their progress.
PARENTAL RESPONSIBILITY
There is no presumption, having regard to the findings relating to family violence, that there should be equal shared parental responsibility. Since the husband will have no face to face time with the children and he is restrained by the current Orders from any contact with the wife, it is neither reasonably practicable nor possible for him to participate in decision making with her. The Orders will provide that the wife have sole parental responsibility for the children.
THE COSTS OF THE ICL
The ICL seeks orders that the parents equally pay its costs of $14,929.77. The wife has already paid some of these costs and her outstanding amount is $5,814.88. The husband has not paid anything to the ICL and his outstanding amount is $7,464.88.
It was not possible, at the conclusion of the evidence in the parenting proceedings, to ascertain the husband’s financial position and consideration of the payment of the costs of the ICL was deferred until the conclusion of the property proceedings.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 January 2016.
Associate:
Date: 20/01/2016
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Remedies
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