Gladman and Tucker - [2009] FMCAfam 1098

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLADMAN & TUCKER

[2009] FMCAfam 1098

FAMILY LAW – Children – best interests – allegations of abuse – family violence – mental health issues – supervision – extreme alchemy practices.

Family Law Act 1975, ss.60 CC, 60B(1), 69 ZN

Mazorski and Albright [2007] Fam CA 520

Applicant:

MR GLADMAN

First Respondent:

MS TUCKER

File Number:

CSC 10 of 2007

Judgment of:

Willis FM

Hearing dates:

14, 15, 17 April, 11 – 12 June 2009

Date of Last Submission:

12 June 2009

Delivered at:

Cairns

Delivered on:

4 November 2009

REPRESENTATION

Counsel for the Applicant:

Ms Wilson

Solicitors for the Applicant:

Murray Lyons Solicitors

Counsel for the Respondent:

Ms Pearson

Solicitors for the Respondent:

Cope Family Law

Independent Children’s Lawyer:

Mr Stephen Todd

Counsel for the Independent Children’s Lawyer:

Mr Trevino

Solicitors for the Independent

Children':

Vandeleur & Todd Solicitors

ORDERS

IT IS ORDERED, BY WAY OF FINAL ORDERS, THAT:

The child [X] born [in] 2004 (“the child”) live with the mother on the condition that:
(a)
The mother forthwith access counselling to attend to the issues raised in the 2 Family Reports and the Psychiatric report of

Dr. Kenny (“the reports”) relied on these proceedings noting that the mother is granted leave to provide copies of the reports to her counsellor.
(b)The mother is to organise forthwith for [X] to attend upon a child psychologist or social worker for therapeutic counselling and to ensure he continues to attend as recommended by the counsellor. Leave is granted to the Mother to provide a copy of the reports to the child psychologist and/ or social worker.
The mother have sole parental responsibility for the child.
The father spend supervised time with the child, at the Cairns Contact Centre, for up to two hours each alternate week-end on Saturday or Sunday as available at the Contact Centre subject to the following conditions:
(a)The father is to be solely responsible for paying the cost of the supervision at the Contact Centre.
(b)The supervised visits will be suspended for up to six times a year with the mother to give the father 2 weeks notice of the dates which she intends to suspend the child’s time at the Contact Centre.
The mother and the father are to forthwith do all acts and things necessary to enrol in the intake procedures at the Cairns Contact Centre.
The Father is restrained from spending any time at all with the child, other than supervised time pursuant to these Orders.
Pursuant to s.64 D (2) these Orders may only be varied by a subsequent Order of the Court (and not by a parenting plan).
The Independent Children’s Lawyer is directed to forward a copy of this Order, the reasons for decision, a copy of each of the two Family Reports and the psychiatric report prepared by Dr. Kenny to the Queensland Department of Communities (Child Safety) and thereafter the Independent Children’s Lawyer is discharged.
Each of the mother and father are to attend separately, a Post Orders Parenting Program conducted by the Family Relationships Centre.
In the event of any further Court appearances the relevant registry is requested to provide a safety plan to ensure the mother’s safety.
All outstanding applications are hereby removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Gladman & Tucker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

CSC 10 of 2007

MR GLADMAN

Applicant

And

MS TUCKER

First Respondent

REASONS FOR JUDGMENT

In this matter, after a five day contested hearing the mother, father and the Independent Children’s Lawyer agree that the appropriate parenting orders for 5 year old [X] is that he lives with his mother, she have sole parental responsibility and that the mother and [X] each attend upon a counsellor.
The mother and father agree that the father’s time with [X] should be supervised at the Cairns Contact Centre each alternate fortnight for two hours with the father paying any cost involved, conditional upon the father engaging with a mental health professional to address his severe personality dysfunction disorder.
The mother and father disagree however, as to whether the Orders I make ought to be final or interim. The father asks that the orders be made on an interim basis so that he can come back and re-litigate in 12 months time.
The father’s Counsel Miss Wilson submits that the psychiatric report was 12 months old at the time of trial, she asks therefore that the father be given a further opportunity to attend counselling and then be

re-assessed by Dr. Kenny, the expert psychiatrist in this matter, in twelve months time and then have another trial addressing with whom [X] will live, parental responsibility and review the father’s time spent with [X].
Miss Wilson contends the father is showing signs of trying to stabilize his life by trying to secure both permanent accommodation and an apprenticeship with an employer who offers flexibility in working hours. She contends that the mother’s life style is chaotic, that the mother has been evicted from accommodation in the past and that she is unable to keep the children (being [X] and his half brother [Y]) in hygienic conditions and has subjected the children to neglect. Miss Wilson also contends that the mother is likely to disengage from accessing counselling in the community and that mother is only now able to provide stability due to the presence of her current partner,

Mr C and therefore Orders ought not be made final. Miss Wilson also points to the mother’s recent conviction for the possession of drugs.
Miss Wilson submits that the mother supports the father’s involvement with [X], and relies on the report writer’s evidence that the child seemed to enjoy his time with the father.
The mother however, seeks Orders on a final basis, and her primary position is that final orders be made as to where [X] lives, sole parental responsibility and supervised time at a contact centre.
Miss Pearson of Counsel for the mother contends that final orders as to residence ought to be made given the strength of the psychiatric evidence against the father and the fact that the father does not even accept he has a psychiatric condition. Miss Pearson submits that the Court will be alarmed at the severity of the father’s lack of insight into his own functioning.
Miss Pearson also relies on the evidence of the father’s profound lack of parenting capacity and the father’s evidence of his treatment of [Y], [X]’s half brother, which Dr. Kenny considered to be child abuse.

Miss Pearson points to the further evidence of the father’s unusual beliefs including occultism and the father’s practice of Alchemy which resulted in him creating concoctions containing his own urine to treat his facial scarring, as evidence of the father’s incapacity to properly parent [X].
Miss Pearson asks the Court to also take into account the troubling history of family violence involving the father manipulating and controlling the mother in the context of the unhealthy dynamics in this relationship with the father being ten years older than the mother, and the father knowing the mother since she herself was a child of only 7 or 8 years old.
Miss Pearson submits that the evidence of child abuse and family violence both point to the presumption of sole parental responsibility being rebutted on a final basis. Miss Pearson submits that these factors all point to the improbability of there being any significant change in his functioning in the future and that the Orders made now should be final. Miss Pearson makes the concession though, that at some time in the future, if and when the father can provide evidence of a significant change to his functioning, the father may seek to have the supervised time at the contact centre reviewed.
The Independent Children’s Lawyer Mr Todd through his Counsel

Mr Trevino agrees with the mother’s position and seeks final Orders in line with the mother as to [X] living with the mother, sole parental responsibility and the mother and child attending counselling.
As for the time spent between the father and [X] however, the Independent Children’s Lawyer invites the Court to consider at least two alternatives, both on a final basis. One is as sought by the mother, with or without a review period. Alternatively the Independent Children’s Lawyer submits that the Court make Orders for no time spent at all between the father and child. This position is advanced on the basis that the Court may consider there is little chance of any significant change on the father’s part in relation to his behaviours, attitudes and psychiatric functioning, and that the evidence is so troubling in relation to the father’s conduct, this militates against making orders for supervised time between the father and [X].
Counsel for the Independent Children’s Lawyer Mr Trevino relies on the evidence of the experts Dr. Kenny and Miss Protheroe in that regard. Dr. Kenny said that there is little likelihood that the father’s attendance at counselling would change the father’s attitudes, behaviours and beliefs but that there was a better opportunity for change if the father has some sort of long-term counselling and is prepared to accept instruction and direction.
Miss Protheroe the report writer, said that there is a possibility of the father manipulating and playing the system at any further assessment as he knows what needs to be said and further assessments should be based on observations, not interviews.
In final submissions, the Independent Children’s Lawyer helpfully prepared a draft of proposed Orders as an aide memoire, noting that the draft was still a work in progress at the time of being tendered. That draft did not include a proposal for the father to spend no time at all with the child, however, that was only due to time constraints. The draft itself provides for the Orders for [X] to live with the mother, sole parental responsibility to the mother, a restraint on the mother from relocating without an order of the Court (which was opposed by the mother on the basis it was not necessary), and counselling for the mother and child, all as final Orders.
The draft then provides for Orders numbered 6 through to 13 which assume the Court adopts the position of having making interim Orders for the time spent between the father and child and a review of that time in 12 months. Orders 11 to 13 cover procedural orders necessary to implement the earlier Orders.
Subject to their initial positions in relation to Orders 1 to 5, the parties are in agreement with the draft from Order 6 onwards.

Issues to be determined

The issues for me to decide therefore are whether to make interim or final Orders in relation to the [X]’s living arrangements, sole parental responsibility and supervised time for the father. I need to also decide whether the Order for supervision ought to be replaced with an Order for no time spent at all between the father and the child.

The evidence

In coming to the decision as to the Orders to make in this matter, I have made my observations and findings based on the affidavit material relied on by each of the parties, the subpoenaed material tendered, the oral evidence of each of the parties and taken into consideration the submissions of each Counsel. I should add in my view each of the parties were well represented and that there was nothing further that could have been said or done to advance their own client’s case any further.
My conclusions in these reasons constitute findings unless otherwise indicated.

The witnesses

The father gave evidence and was cross examined by each of the other parties. He also called a friend Mr W and the father’s current employer Mr L.
The mother gave evidence and was cross examined. The mother’s partner Mr C gave evidence and was cross examined.
Evidence was also adduced from Dr. Kenny the psychiatrist appointed by the Independent Children’s Lawyer and Miss Protheroe, the writer of the Family Report, both of whom were cross examined.
An earlier family report was prepared by Mr Owen Pershouse which was relied on by the Independent Children’s Lawyer as Miss Protheroe had referred to that report in her reports. Mr Pershouse was not required for cross examination.

The Father

The trial progressed over 5 days during which I had ample opportunity to see the father in the witness box for a lengthy period.
The father was a most unimpressive witness. On his own evidence he has lied to the police, Centrelink, treating doctors, psychologists, other Courts and lawyers. Listening to the situations in which the father admits to having lied in the past leaves me with no doubt at all that the father will say whatever he thinks will assist him in any given situation, at any time. Much of the motivation for lying was to obtain benefits by deception. He has deliberately breached orders in the criminal Courts on the basis that he felt he had been punished enough, wasn’t getting a fair go and so intentionally breached or ignored the orders.
The father is completely lacking in candour and evasive in the answers he gives. I doubt he could tell the truth under any circumstances. The father’s evidence changed whenever he considered that there was a better, more convincing answer to offer. The father explained in evidence that it was easier for him to make up one lie regarding faking a mental illness so as to receive a disability payment, than it was to have to lie each week to Centrelink about applying for jobs. The father blames all manner of people, lawyers and institutions for any grievances he has, failing to take responsibility for any of his own conduct.
The father in giving his testimony showed great immaturity in his attitudes, conduct and lifestyle. At age 35, he is without his own accommodation (renting a room at the time of trial), without any assets, he has no car and says that he walks everywhere including to and from work and to and from the contact centre. He has recently secured his first employment in about 7 years [in the automobile industry] at a firm known as “[R]”. He lives from week to week and has no savings. He has lived the life of an itinerant for many years, moving around constantly and at times “sleeping rough” meaning sleeping on the streets or elsewhere in the open.
He continues to engage in regular and often daily drug use, including at times when [X] has been in his care. His description of what happened when he hurt himself in September 2007 on the day that [X] was subsequently removed from his care is an example of his immaturity. The father said in evidence, with some amusement, that he was looking after [X] he and some ten mates were mucking around in the swimming pool. Another of the mates, Mr W, said that they were all engaging in drug taking on that day at the time. The father said that he was injured in the following manner:
“Me and a few friends were riding my son’s monster truck down the water slide at the caravan park swimming pool. They have got an entire area set up and I tried riding the monster truck down the slide standing up and slipped off the truck and landed on the side of the slide. We had a video recording of the horseplay we were doing but it doesn’t actually show me injuring myself.”
The father has an extensive criminal history as shown in the subpoenaed material, including break and enter, wilful and unlawful damage to property, vagrant behaving in a disorderly manner, common assault, receiving stolen property and many breaches of fine option orders or bail undertakings. The mother’s records were returned with a nil criminal history showing though she admits to a possession of marijuana charge earlier this year which had not yet made it on to her criminal history.
Where ever the father’s evidence is contradicted by other witnesses, I prefer the evidence of the other witness unless the evidence of the father is supported by some other objective evidence.
The father’s friend, Mr W, gave evidence and appeared nervous and most uncomfortable about being in court. I found most of his evidence to be inherently unbelievable. His evidence about the father having rice on the floor of his cabin and not maggots was unconvincing. Similarly, I did not accept his evidence that the father had no part in the preparation of Mr W’s written statement produced on the second day of the trial. Mr W was loathe to answer the Independent Children’s Lawyer’s Counsel’s questions regarding drug use, but due to the persistence of Mr Trevino’s questioning, Mr W ultimately had to concede the father engaged in sustained and regular drug use in his presence and whilst the father had [X] living with him and was the adult caring for [X]. Mr W insisted though that the father didn’t take drugs in the actual presence of the child, but that he did it in another room.
Mr L, the father’s current employer was a very honest and open witness. I accept that he is genuinely trying to help the father to work hours that enable him to spend time with [X]. Mr L told the Court that he himself had been through a separation and raised children by himself and he knew the difficulties involved. The father is lucky to have such a sympathetic employer.

The Mother

The Mother gave her evidence in a fairly blunt, direct and generally honest manner though at times she tended to avoid responsibility for her own actions, such as taking drugs in the past, or minimising her own difficulties. The mother is still aged only 25 and the father is ten years older at age 35. She fluctuated between trying to give her answers confidently whilst describing the father’s intrusive and exploitative behaviour towards her, and breaking down describing the father’s continual threats and mind games. It was clear to me she has struggled with an unhealthy relationship with the father. I consider that the evidence of the dynamics between the mother and father strongly suggests that there is a power imbalance between the mother and father and that the father has been a controlling force within their relationship. This is consistent with the history of the father first meeting the mother when she herself was a child aged around 8 years old. The report of Mr Pershouse is informative in providing evidence of the mother’s distress levels when discussing her relationship with the father.
Having watched the mother in the witness box for many hours and listened to her evidence on a variety of topics, and watched the mother’s distress, I accept without reservation that the mother is in genuine fear of the father and wholly concerned about the possibility of him harming or mistreating [X] in the future. I consider that the mother did not and does not have the ability to protect herself from the father’s manipulating and threatening behaviour.
Mr C the mother’s de facto partner was an impressive and honest witness. He answered questions, at times most personal, with some insight. I considered that he exuded common sense and a measured approach to both his relationship with the mother and his parenting of [X] and [Y].

The Law

Justice Brown in Mazorski and Albright [2007] Fam CA 520 eloquently described the legal principles involved under Part VII of the Family Law Act 1975 (the Act) relating to children as resting on “twin pillars”. Her Honour referred to the first of those pillars being the importance to children of having a meaningful relationship with both parents to the extent that it is appropriate to do so bearing in mind the best interests of the children; the second is the need to protect children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.
These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are re-iterated as the primary considerations in s.60CC.

The objects also provide that Orders should ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
When deciding what parenting orders to make, it is the best interests of the children which is the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her however the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests off the child for it to apply. Having reviewed all of the relevant s.60CC factors, I will turn to the primary considerations to determine if the presumption is rebutted and whether, in light of the s.60CC factors, an order for sole parental responsibility ought to be made.
In this matter, where the parties are largely in agreement about the nature of the Orders that ought to be made, but disagree as to whether they should be interim or final, I will also consider the specific objects and provisions of the act which are relevant to this issue. In particular, the provisions of section 69ZN, which provide the principles to be applied in conducting child related proceedings. Principle one is that the court must consider the need of the child and the impact of the proceedings upon the child and the need to safeguard the child from the proceedings.
When applying the additional considerations under s.60CC (l) I am required to determine whether it is preferable to make Orders that are least likely to lead to other further litigation or more orders.
I shall refer to all of the relevant s.60CC factors when deciding what Orders are in the best interests of [X] noting that some of the evidence referred to applies to more than one factor.

The capacity to parent; capacity to provide for the emotional and psychological well being of [X]; responsibility towards parenting;

Father: Lack of insight.

To say that the father’s has a severe lack of insight into the effect and consequences for others of his own behaviour, is a profound understatement.
The father’s evidence of his treatment of [Y] when [Y] was aged

16 months old was horrifying to hear. The father admits that he made [Y], then aged 16 months, who on some mornings was found have soiled his nappy and smeared faeces around the walls of the cot, stand naked in the bedroom, still with the faeces smeared around the walls, for four or five hours, whilst lecturing to [Y] over and over on what he had done was wrong.
The father made [Y] remain standing in the bedroom having deliberately decided not to clean up the room, so that it stank, until such times as [Y] had acknowledged to the father that what he did was wrong. The father said although [Y] was only sixteen months old, the father knew that [Y] understood what the father had to say, and that [Y] was stubborn and slow to admit that what he had done was wrong.
The father laughed in the witness box more than once when re-telling the scenario, saying that he laughed because it was funny that a child would smear his poo all over the room[1].
[1] Transcript 15 April 2009, page 55 and 56 and page 58.
When Dr. Kenny the expert psychiatrist was informed of this evidence, he considered, as did I, that it constituted child abuse. Dr. Kenny was particularly disturbed to hear that the father was laughing in Court upon giving the evidence[2] and considered it reflected a gross degree of lack of insight and gross impairment of function[3].
[2] Transcript 12 June 2009, page 54, line 30.
[3] Transcript page 54, line 35-40.
The mother’s evidence was that she was unable to stop this type of behaviour by the father and that his methods of discipline were a constant source of argument. The mother seems to me to have been caught in a relationship where she was powerless to stop herself being manipulated by the father, and the dangers for the children that flow on from this unhealthy and abusive dynamic are borne out by the father continuing to assert his authority as he saw fit.

The father’s unusual beliefs and practices

The father gave evidence of holding bizarre beliefs and acting out aspects of his belief system. He believes in occultism, saying he believes in God and the devil and that the two are balanced out. He told Miss Protheroe that he was “master of the temple”. The father has acted out self harm by cutting his own legs to focus his mind properly and gain control of his mind. He has engaged in what he refers to as alchemy wherein he has concocted and used mixtures or “tinctures” as he calls them. The father said he made a mixture which he applied to his own facial skin in an attempt to reduce the scarring on his face. The mixture was made up of various substances including milk from a cow, ash and urine from the animal kingdom, being the father’s own urine, he being part of the animal kingdom.
In September 2007, when the father still had [X] living with him after removing [X] from his mother, the police unexpectedly raided the father’s caravan/cabin looking for drugs and came upon some

29 bottles of mixture in milk bottles. The father says only 9 contained his own urine. The police took photos of the bottles and the cabin. The police records state that there were about 20 milk bottles full with urine in the bottom of a cupboard, and about 9 milk bottles full with urine on the top shelf. The police say that other bottles of urine were also found next to the cupboards and bed and two on top of the cupboard had no lids. The father says he used to obtain the urine by himself going to the toilet block, urinating into a milk bottle, and bringing it back to the caravan where he would proceed to make up the mixtures. He says the mixture had to sit for some weeks. Upon the police raiding his van and finding and photographing the father’s bottled urine collection, the father disposed of all of the bottles.
The father says he no longer engages in these practices as he now realizes his religious beliefs have to give way to his desire to have his son live with him. In April this year the father told the report writer he was still practising these beliefs and that the mother was his last student in mysticism and witchcraft. The father suggested at that time that the knowledge needed to be passed on to [X]. Miss Protheroe had the impression when writing her report that the beliefs were still held. Given my view of the father’s almost complete inability to tell the truth, I cannot accept the father’s testimony that he has given up his beliefs.
Miss Protheroe considers that supervised contact will prevent any risk that the father will attempt to influence the child’s thinking in relation to his own belief in the occult.
The mother said that when she and the father lived together, she tried not to pay too much attention to the father’s alchemy practices. She said that he made mixtures out of herbs and plants, but had not resorted to using his own urine. The mother said that she had some belief in the bible as did the father, but she had her own beliefs that did not necessarily follow the father’s beliefs.

Capacity to provide for the [X]’s emotional and psychological wellbeing

Mr Trevino submits that the Independent Children’s Lawyer Mr Todd is deeply concerned about the evidence of [X]’s past behaviours, urinating on clothes, his brother, carpet and tracks of windows, spitting at strangers and food hoarding which Dr. Kenny has testified is not uncommon behaviour in disturbed children. I concur with the deeply held concerns of the Independent Children’s Lawyer.
The mother was left to deal with the disturbing behaviour of [X] after [X] was returned to her by the Department of Communities (Child Safety) having been taken from the father and placed into foster care as a result of a temporary assessment order. [X] had been living with his father since separation in May 2006, when the father moved south returning to Cairns around September 2006. [X] remained living with the father until September 2007 which is when [X] was removed due to the intervention of the Department of Communities (Child Safety). [X] was in foster care for about two months till November 2007. The mother says she visited [X] as much as was permitted during this period.
During the trial there was criticism of the mother by the father through his Counsel for her alleged inability to handle [X] and for being evicted from a residence due to the stench of urine in the carpet and an untidy unit.
The mother gave evidence that [X] was fairly difficult to handle when she secured his return to her care, and that he regularly urinated on places such as the carpet, his brother, on clean clothes in the washing basket and in window tracks. He also hoarded food and would hide it in places, obviously to eat at some later time. Ultimately this food would deteriorate and rot and the smell would lead the mother to the location of the food.
I find the criticism of the mother to be misplaced and without any acknowledgement of the father’s role in this tragedy. The father alone created a situation for [X] in which he was removed first from his mother at aged 2 most abruptly and in terrifying circumstances, and then [X] was removed from his father and placed into foster care. Added to this disruption to [X]’s life was the period of some months when [X], in the care of his father, didn’t see his mother at all when his father took [X] south after separation. [X] was living in circumstances with his father, in small surroundings, with more than 30 bottles containing the father’s own urine, two still open, according to the Police records subpoenaed and tendered.
Dr. Kenny said that [X]’s urinating behaviour along with the food hoarding and spitting, was most likely related to the trauma associated with the disruptions in his life.
I reject any suggestion that the child’s behavioural difficulties are the solely attributable to the mother or her poor parenting. I find that the father through his conduct has shown scant regard for [X]’s well being, either physical or emotional. The father showed a complete inability to understand the effect on removing a 2 year old abruptly from his mother who was his primary carer. The father’s disciplinary techniques reveal a total lack of any understanding of how to handle and relate to a child. I consider his behaviour constitutes child abuse. It seems to me the father has demonstrated that he is devoid of any ability to provide for [X]’s emotional well being or physical needs.

Father’s ability to provide for the child - living conditions for [X]

It was during a police raid that [X] was removed from the father after the police inspected the living conditions in the father’s cabin and considered that the conditions were unfit for [X] to remain. The police investigation and the subsequent involvement of the Department of Communities (Child Safety), lead to a successful application to place [X] in foster care pursuant to a temporary assessment order. Having read the relevant reports and subpoenaed material and viewed the photographs taken by the police, I consider the conditions in the father’s cabin to be squalid and entirely unfit for a child. This is certainly an occasion when a picture tells a thousand words. It is difficult to imagine what the cabin smelt like, given 29 bottles of the father’s concoction that was stored in a cupboard together with the other food seen on the floor.
I reject the father’s evidence that the police were mistaken when they reported maggots being in overalls lying on the floor of the cabin, and that the maggots were in fact really rice. I reject the father’s explanation as to the alleged cleanliness of the living conditions in the cabin and that he tidied up the cabin the day of the police raid and changed the sheets that day. The photographs suggest to me a picture of entrenched filth. Where ever the father’s evidence is contradicted by the evidence contained in the records of the police or the officers of the Department of Child Safety, I prefer their evidence.
The evidence from the Department of Communities (Child Safety) formed the basis for a Temporary Assessment Order made in the State Magistrates Court to remove [X] from the care of the father.
Prior to separation, it was the mother who provided financially for the children and family by organising housing using her funds. It was the continual drain on her finances that was the topic of the argument recorded on the night of separation. The mother said that their arguments were often about money and the lack of support provided by the father who she said spent most of his funds on drugs. Other arguments were about his disciplining of the children.
The father has a history of being incapable of providing even for his own accommodation. The father has slept in temporary accommodation offered at [omitted] House and “crashed” at a house in the car yard at [R], in which his friend Mr W was living rent free in exchange for painting the house above the workshop. The father says he stayed in this house as it was raining and he didn’t want to sleep in the rain. The father said he has slept “rough”, meaning out in the open, in the past when he couldn’t find anywhere to live. I have seen the photographs of the father’s attempts to provide adequate living conditions at the cabin in a caravan park when he was solely caring for [X]. I have no confidence at all in the father’s ability or capacity to provide adequate accommodation or a suitable environment for himself or [X].

Mother’s ability to provide for [X] - living conditions

The mother is not above criticism in her abilities to keep a clean and hygienic home for [X]. The subpoenaed material shows a real estate agent noting the mother’s home was smelling of urine and untidy and the mother admits that on that inspection, the house was smelly and untidy. Some concerns were also expressed by the police on one occasion. That may have been so and was perhaps not unexpected given the problem with [X] urinating on carpets and hoarding food in secret places where it often stayed till it rotted and was then found.

Mr C gave evidence that the mother’s home did smell of urine until the problems with [X] were resolved.
I accept the evidence of Mr C and the mother that their current living conditions are appropriate for the children in all respects
It seems that in the past when the parties were together, the mother was the party who actually secured and retained accommodation, something which the father has yet to demonstrate he is capable of doing.

The likely effect of any changes in the [X]’s circumstances including the effect on [X] of separation from either parent or another child.

The proposed orders provide for [X] to live with his mother and also his sibling [Y]. In any order, whether final or interim, I regard an order changing [X]’s circumstances so that he lived separately from [Y] as being contrary to [X]’s best interests. [X] can only benefit from the advantages that growing up with his sibling present: the closeness, the company and the fun, and the sense of family that is so important for children who grow up in separated families. This is particularly so for [X] who at still such a young age, has had so much disruption and distress in his life.

Psychiatric assessment: Father

Dr. Kenny has diagnosed the father with a severe personality disorder and has stated that at age 35, it is unlikely that the father will change his personality. Dr. Kenny was most troubled when he was advised of evidence given by the father during the trial. Dr. Kenny said that prior to meeting the father and after reading the material, he considered the possibility of the father being psychotic, (that is hallucinated and deluded) and he was half expecting to say that the father had a schizophrenic illness in his assessment, however when he met the father, after the father failed to attend the first appointment, Dr. Kenny backed off from that position and saw it predominately in terms of a personality disorder dysfunction.
Dr. Kenny commented in his oral evidence that it seemed there was a paranoid quality to the father’s presentation as distinct from necessarily being psychotic, which was quite worrying. Dr. Kenny gave evidence that the father is unlikely to change through counselling, but says that there is a better opportunity for change if he does have some sort of long term counselling and is prepared to accept direction and instruction. Dr. Kenny noted the father’s propensity for lying saying that it was part of his disorder. Dr Kenny said the father does not even accept the diagnosis of a personality disorder.
Dr. Kenny describes the father’s behaviour towards [Y] as child abuse and on hearing that the father laughed in court whilst reflecting on the incident, commented that the affect was entirely inappropriate and showed a gross degree of lack of insight and gross impairment function.
Dr. Kenny recommends only supervised time be spent with [X] until the father demonstrates some significant change in his functioning.

Psychiatric assessment: Mother

Dr. Kenny assessed the mother as having some behaviours that might be symptomatic of a borderline personality disorder, though declined to go so far as to make a diagnosis of personality disorder. Dr. Kenny described some of the mother’s history of a patchy work record, some drug use, unstable relationships and some periods of self harm and depression as possibly suggesting a personality disorder but he discounted that diagnosis on the basis that the symptoms were not severe enough or far reaching enough to warrant a label of personality disorder. Dr. Kenny thought that the mother’s condition was on a continuum, somewhere between perfectly normal and borderline personality and preferred to call it a personality dysfunction.
Whilst Dr. Kenny considered that there are potential negatives with the mother’s ability to parent, such as being in an unstable relationship, being depressed or returning to drugs, he considered however that the mother is capable of being a good enough parent and that she has adequate emotional support which was very important for the mother’s functioning. Dr. Kenny considered the mother would benefit from some relatively long-term counselling in terms of organising her life and by extension, supporting her in her parenting such as disciplining, and providing a reasonable environment for the children, at least until the mother is an environment where she feels emotionally and practically supported. Dr. Kenny considered that it is important for the mother to have access to a counsellor in the community in the event that she requires more intensive counselling from time to time.
Dr. Kenny considered that the mother would benefit in her functioning by having an intimate relationship with someone who is real and supportive, and that if her emotional needs are met, she is more likely to be able to deal satisfactorily with [X]. The mother’s current partner, Mr C, appears to fill that role.
I reject the implied criticism of the mother by the father through his Counsel that the mother didn’t complain about the father’s living conditions prior to the child being taken from the father and placed in foster care. I accept the mother’s evidence that she did not even know where the father lived when he returned to Cairns, and she had not been to the cabin.
As to the criticisms levelled at the mother, that she has not handled [X]’s difficult behaviour as well as she ought to, or that her housekeeping standards are well below par, I consider that these issues need to be put in their proper context. The mother was and still is young. She is 25 years now.

The mother has been in an abusive and dysfunctional relationship with the father. I accept the mother’s evidence that she remained in the relationship longer that she wanted to, as the father threatened that he would keep [X] if she left. He was true to his word. At separation, the father had a preconceived plan to remove [X] from her care. The father did not even tell the mother where he was living and even when he returned to Cairns, the father did not tell the mother his address. After separation, he disappeared for months with [X].
Once the Department of Communities (Child Safety) became aware of the appalling conditions that [X] was living in with his father in Cairns, [X] was placed into foster care. The mother maintained regular time with [X] while he was in foster care and finally the mother secured his return to her care.
The mother has struggled with her own psychological difficulties and has strived to provide a home, stability and financial support for both [X] and [Y]. At the time of trial, the mother had achieved stability for herself and the children, and in particular [X]. The mother gave uncontested evidence, that [X]’s behaviour has improved both at home and school considerably. I accept the mother’s evidence that at separation when [X] was 2, he did not have the behaviour problems he showed on his return from foster care.
Dr. Kenny considered that [X]’s past behaviours were a sign of a child in distress from upheaval in his life. It seems to me that the mother is now capable of providing [X] and his brother with a stable and safe routine and home life. I have no doubt that Mr C has assisted in this process by giving the mother the emotional support which has, as

Dr. Kenny suggested, assisted the mother to provide for the emotional support of the children. Whatever criticisms are made of the mother, they pale into insignificance when compared to the conduct and incapacity of the father to parent appropriately.
Miss Protheroe’s evidence was that if the mother was parenting by herself, that [X] should be placed back into foster care. The facts of the matter are that the mother has been in a relationship with Mr C for approximately 2 years, and for the last twelve months they have openly been in a committed relationship. I was impressed with Mr C and I accept that he holds a genuine fondness for [X] and [Y], and that he has a commitment to creating a family unit with the mother and the children.
In any event I do not agree with Miss Protheroe’s view that if the mother was to parent alone, [X] should be in foster care. I consider that now that the mother is out of the abusive relationship with the father, and that given her history of seeking support from community based services such as Contact House, and her proven ability to work with the Department of Communities (Child Safety) to secure the return of [X], that the mother is maturing and developing appropriate mothering skills. I accept the submission of Counsel for the Independent Children’s Lawyer, Mr Trevino, that of the two parents, the mother is the preferred parent.
There is unchallenged evidence from the mother and Mr C that [X] has improved significantly since he has returned to the mother and that his disturbed behaviour is slowly diminishing. Credit must be given to the mother for her role in this improvement. I have no doubt that the emotional and financial support she receives from Mr C will assist the mother to continue to develop appropriate parenting skills along with her accessing whatever community assistance she requires. I am satisfied that the mother has shown that she has, and is continuing to develop, the capacity to ensure she is capable of providing for the emotional and psychological wellbeing of [X].
Miss Protheroe holds the view that the mother will not engage properly in counselling and cites as an example the mother becoming critical at the counselling at Contact house, ceasing the counselling after 6 or 8 months. In my view that criticism is unfairly harsh and does not acknowledge that the mother maintained her counselling for 8 months up until the service could no longer provide it. I consider that, if necessary, the mother will access community support in the future, as she has done in the past. She has also demonstrated that she can work with the Department of Communities (Child Safety) as she did when [X] was in foster care and ultimately he was returned to her care. There is no evidence that the father has undertaken any counselling at all.

Willingness to encourage a relationship with the other parent

I am satisfied from the circumstances surrounding the father taking [X], moving south and out of contact of the mother, and even when returning to Cairns months later, the father clearly did not encourage a relationship between [X] and his mother. The father did not give the mother his address even when he returned to Cairns so the mother did not know where he lived. I consider that the father’s motivation for removing [X] was purely financial. The father gave no consideration to the trauma for [X], at age 2, of being taken one night from the care of his mother with whom he had always lived and prevented from spending any time with her for months.
The father’s application in this trial, which position he maintained right to the end of this five day trial, was that the mother have supervised time only with [X] and that he should have [X] live with him. He did this because, as he said in the witness box “fairs fair”. The father showed no acknowledgement of the role the mother has played in [X]’s life in securing his return from foster care nor in any of his evidence did he show any sign of having considered what impact his proposed new arrangement would have on [X], or on [Y]. I saw no evidence at all from the father that he understood the emotional or psychological needs of [X] who is still so young nor did I see any sign that he was or has been prepared to encourage [X]’s relationship with his mother.
The mother has continued throughout this abusive relationship to facilitate a relationship between [X] and the father. Despite all of the father’s atrocious behaviour towards herself and the children, mother did not conduct her case on the basis that the father has no time at all with [X]. The mother is still willing to foster a relationship between [X] and the father, however, she wishes for arrangements to be put in place to ensure [X] is safe. I consider that is an entirely justifiable request in the circumstances.

Family Violence

The mother said that the father physically injured her on an occasion by allowing a door to slam on her fingers. The mother’s evidence was also that she had contemplated leaving the father for some time due to the abusive nature of the relationship, but that the father made repeated threats that if she left him, he would make sure the child [X] didn’t go with her or that she wouldn’t see [X] again. I accept the mother’s evidence. The father did exactly what he said he would do.
The father has engaged in threatening and terrifying psychological abuse against the mother and in situations directly involving [X]. As with the evidence in relation to the father’s treatment of [Y], it is the father’s own evidence as recorded by him on his MP3 player and produced to this Court that satisfies me that the father has manipulated and controlled the mother to achieve his own purposes.
The father’s recording of an incident late at night in which he goaded the mother in a menacing tone into absolute frustration, took [X] from his cot and left the house provides to this Court a rare opportunity to hear first hand, a sound track revealing sounds of screams and shrieking of a mother who was hysterical, sounds resembling a person being struck and being pushed beyond all boundaries and who literally became engulfed in despair, all planned and executed by the father and all so that the father could receive a crisis payment from social security of $600.00.
The father himself can be heard at the beginning of the tape, explaining to a mate called Mr S that the mother is a whore. He tells Mr S that he has found out that if he is the victim of domestic violence, he gets a crisis payment of $600.00. The father is heard to say quite clearly, that this $600.00 is on top of what he already gets, making $1200.00 in total. The father goes on to say that it is enough for he and [X] to get a housing commission home and that he had found out about that. He admitted in court that he had been to Centrelink earlier that day to find out about the crisis payment.
The mother’s screams did not deter the father from his plan. I have no doubt that the father removed the child on that night simply to obtain financial advantage by accessing social security payments relating to [X] for his own benefit.
The recording illustrates, in a manner that no affidavit could have, the extreme measures the father will go to achieve what he wants and that considerations of the emotional well being of others is not contemplated by the father. The father at times laughed in Court while the recording was being played. The tape recording has to be played to understand the full gravity of the circumstances. I could not contemplate any person who listened to the tape not being shocked by its contents. I was extremely disturbed and perplexed that the father laughed during the tape. It provided to me a further and striking example of the father’s lack of insight into his own behaviour.
The recording has the sound of the father grabbing [X] from his cot in the midst of the heated argument. The listener can hear the father carrying [X] down the street after removing [X] from the safety of his cot at around 11pm, and heading by foot, in the dark, straight to a phone box to ring the police and report some alleged domestic violence in order to support his proposed claim for a crisis payment. No words of comfort or explanation are offered to [X] who is being carried away from his mother, his bed and his home by the father at night, following the screaming chaos at home caused by the father.
Disturbingly, the listener will hear that the father was controlling, determined, overbearing and engaged in psychological manipulation of the mother throughout the entire episode. His determination to leave and contact the police so as to get the crisis payment was placed above any consideration for the emotional well being of [X].
By stark contrast to the recorded events on the tape, the description of the events that occurred when the father left the home with [X] as portrayed by the father in his affidavit is sanitised and clinical with the father deposing that he can’t even remember what the argument was about. I completely reject the father’s version of events as set out in his affidavit as it is totally contradictory to the father’s own recording.
The mother said that the father was constantly recording their conversations. I accept this evidence. The father himself admitted to least 30 or 40 tapes of conversations with the mother and others. He agreed that he taped his interview with the family consultant when interviewed for the family report, without her knowledge.

The father’s dishonesty and future assessments

Miss Protheroe though has expressed reservations as to the reliability of any further assessments as to the father’s capacity to parent or functioning based on the self reporting of the father. Miss Protheroe believes that the father has learnt what needs to be said at such interviews and that the only assessment that could be relied upon in the future, is an assessment that involves ongoing observations of the father’s conduct, not the father’s self reported behaviours and beliefs.
Certainly it was clear to me that when giving his evidence, Dr. Kenny became increasingly alarmed upon hearing the details of the oral evidence given by the father in the witness box over many hours and after much questioning, as opposed to the presentation of the father at Dr. Kenny’s interview.
The issue raised by Miss Protheroe is certainly an issue that should be raised at any further hearing between these parties in relation to any further psychiatric evidence or evidence of the father’s functioning.

Orders that are least likely to lead to other further litigation

Orders – final or interim?

This trial proceeded over five days staggered over several months, the father and mother were each funded by Legal Aid as was of course the Independent Children’s Lawyer. Each of the parties was funded to run a fully contested hearing for residence. At the time of the trial, the father was spending supervised time with [X] pursuant to a court Order. The second family report recommended that the father have supervised time at a contact centre, the father not having attended for interviews at the first family report. The father did not concede any ground until after both the Independent Children’s Lawyer and the Mother’s Counsel had made their oral submissions and the time had come for his Counsel to proceed with her submissions at around 5pm on the final afternoon.
No time was therefore saved at the trial by coming to an early resolution. Three court experts were appointed: the psychiatrist

Dr. Kenny, the psychologist Mr Pershouse and Miss Protheroe the report writer. Both Dr Kenny and Miss Protheroe were required for cross examination. I permitted the father to introduce new evidence from his employer during the course of the trial. All of the evidence has been tested. In my view, this trial has been conducted at significant expense on the public purse.
The evidence of Dr. Kenny was that there is certainly no guarantee that the father’s severe personality disorder and its affect on his functioning will be cured by counselling, only that counselling may assist to effect a change.
I am obliged to make Orders that are least likely to lead to further litigation. I am also mindful in particular of the provisions of section 69ZN which provide the principles to be applied in conducting child related proceedings. Principle one is that the court must consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child. I need also to consider principle three which is the need to conduct proceedings in a way which will safeguard the mother and child against family violence and the child against abuse and neglect.
[X] has had a tumultuous time over the past 2 -3 years. His behaviour is now showing signs of settling and the extremely disturbed behaviour that was evident after [X] returned to his mother is diminishing. He is living in a settled household without violence and screaming, he is attending school and now has a chance to enjoy his childhood with his sibling [Y].
The proposed order of supervised time only for the father means that [X] still has an opportunity to engage with his father, but that he is safe doing so.
In light of all of the evidence I have referred to in these reasons, and the findings I have made, I am satisfied that there is an unacceptable risk of harm occurring to [X] in the care of the father. I consider that the evidence of the father’s psychiatric functioning, his past child abuse, his bizarre belief system, his past conduct towards the mother, [Y] and [X] and the mother’s genuine fear of the father for both herself and for [X] dictates that the father ought not be left unsupervised with [X].
I have considered the Independent Children’s Lawyer’s alternate submission that there be no order at all for the father to spend time with [X] in the event that I consider the evidence suggests such a course. A case for no time at all with the father was not run during the trial by the mother and only touched on by the Independent Children’s Lawyer with the experts. Having said that, I am deeply troubled by the father’s conduct in this matter and by the nature of all of the evidence that has been presented in relation to the father. I am however, mindful of the mother’s wish that [X] be permitted to have a relationship with his father, but that it be safe for [X] to so. There is evidence from

Miss Protheroe that [X] seemed to enjoy the time with his father and that the father son relationship was warm and friendly.
Orders for supervised time only provide the balance between giving [X] the opportunity to develop an ongoing relationship with his father and doing so in safe surroundings where the father’s behaviour is monitored.
As to the father’s submissions that he is pulling his life together and hopeful of obtaining housing and an apprenticeship, the evidence is that from the beginning of the trial to the conclusion some months later, the father did not actually organise anything himself. He was hoping to arrange to take over the lease of his mate Mr W, who was hoping to move south to see more of his child when he got the money together. The father had not actually approached the agent to organise anything. The apprenticeship may or may not happen.
Even if the father did finally organise his own accommodation, I have no confidence that he is capable of changing his living conditions for the better. I have no confidence or evidence that the father has ceased the heavy use of marijuana as witnessed by Mr W and the mother.
I have no confidence that the father will engage in counselling or therapeutic treatment. He does not yet accept the diagnosis of severe personality disorder, which is the first step in trying to address the disorder. Even if he did accept the diagnosis or attend counselling, there is nothing more than a chance of change according to Dr. Kenny. The father’s lack of insight represents a risk in terms of his parenting, a risk I find unacceptable.
For the reasons outlined, I could not contemplate an Order where [X] lives with his father. The father has shown he can be an abusive and insensitive in his treatment of both [Y] and [X]. He has engaged in controlling and manipulative treatment of the mother as well as physical violence. He has been incapable of providing a standard of living that is acceptable or appropriate for children nor has he proved that he has the ability to provide for [X]’s emotional wellbeing. He has engaged regularly in drug use whilst being in charge of [X]’s care. His disqualifying conduct would, in my view, have a profound effect on his ability to parent and place any child left in his care at great risk.
The evidence as it stands, after a 5 day contested hearing, is that I find that the presumption of equal shared parental responsibility is rebutted due to the evidence of child abuse and family violence.
I am satisfied after considering all of the relevant s.60CC factors that [X] should live with his mother.
I am satisfied that the there is an unacceptable risk to [X] in the event that the father spends anything other than supervised time with [X].
I do not make these findings on an interim basis, I make them on a final basis after a 5 day contested hearing and consideration of all of the issues. I consider there must be an end to litigation and that the principles set out in the Act dictate that permitting another trial of all or any of these issues in the foreseeable future would subject the mother and [X] to unnecessary trauma. I also consider a further trial in this time frame would result in the same outcome.
I will not permit a further hearing to be used by the father to continue to intrude into the life of the mother and subject her to the distress of further litigation, just so that the father can launch another residence application in 12 or 18 months. Looming litigation will threaten the stability that the mother is attempting to create for herself and [X]. [X] ought to have the opportunity to enjoy his childhood without further upheavals through another contested residence application.
I do not consider the mother’s current circumstances to be so unstable and uncertain as to warrant re-litigating her circumstances in

12 months time. This is notwithstanding her recent conviction for possessing marijuana and I note Miss Pearson’s explanation to me that possession in Queensland relates solely to the drug being physically on the premises of a person with or without the knowledge of that person, which accords with the mother’s evidence.

In making Orders for supervised time only, I am not inviting the father to come back to Court and re-litigate for further time or unsupervised time one or two years time. I am not ordering supervised time on the basis that sometimes occurs in this Court, which is to provide a means of making a transition in the foreseeable future from supervised to unsupervised time, or more time, whilst a child becomes re-united with a parent or whilst a parent attends to a parenting program or counselling.
Even if the father returned to Court in the years ahead with psychiatric evidence suggesting that the father has been able to address some of his lack of insight as a person and a parent, that may not be sufficient to meet the threshold issue of a significant change required to re-visit these Orders. Given the seriousness of the findings I have made regarding the father’s behaviour, the severe dysfunction that the father has been diagnosed with, together with the evidence of Ms Protheroe as to any future assessments being based on actual observations rather than the father’s testimony it will be matter for the next judicial officer to decide if there has been a significant change as required by the case law.
In making orders for supervised time only, I am giving [X] an opportunity to know his father and maintain a relationship with him, in the only manner that I consider it safe to do so. Any other form of time spent between the father and child, to my mind, presents an unacceptable risk to [X]. Because I am making Final Orders, I do not intend making an Order that the father’s times is to be conditional on the father undertaking psychological treatment. I do not accept that any such treatment will be successful or that it will address the risks I have identified with the father. If the father wishes to engage in such counselling, that is a matter for him.
Out of an abundance of caution, I am making Orders that the Independent Children’s Lawyer provide a copy of these reasons and Orders and the expert reports relied upon, to the Department of Communities (Child Safety) to enable them to monitor the mother’s parenting and the living conditions of the child.
I do not consider in all the circumstances that it is necessary to for me to restrain the mother from relocating elsewhere, as she has obligations to fulfil under these Orders. I will make an Order discharging the Independent Children’s Lawyer as set out in Order 7.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Willis FM

Associate: Megan Cunnane

Date: 4 November 2009