Gordon and Junee
[2012] FamCA 12
•12 January 2012
FAMILY COURT OF AUSTRALIA
| GORDON & JUNEE | [2012] FamCA 12 |
| FAMILY LAW – CHILDREN – where there was a finding of significant family violence - where the mental status of the father significantly compromised his ability to adequately function as a parent – where the mental status of the father meant that any future interaction of the parents of the children would exacerbate the mother’s personality vulnerabilities and impair her ability to function as a parent – where a detailed examination of the history of the parties’ interaction and parenting led to the conclusion that it was in the best interests of the children for them not to have any face to face time with their father (even on a supervised basis) nor any direct communication with their father |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Gordon |
| RESPONDENT: | Mr Junee |
| INDEPENDENT CHILDREN’S LAWYER: | Terry Newman |
| FILE NUMBER: | CSC | 431 | of | 2010 |
| DATE DELIVERED: | 12 January 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns and Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 2 - 5 August 2011 (Cairns) 23 November 2011 (Sydney) |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Benson |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Queensland |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Victoirre |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Newman Family Law |
Orders
All previous parenting orders be discharged.
The children J JUNEE born … July 2003 and K JUNEE born … September 2006 live with the mother.
The mother have sole parental responsibility for the children.
The father not spend any face to face time with the children and that he not communicate with the children other than:
4.1.by way of gifts and cards on each of the children’s birthdays and Christmas Day and unless the mother forms the view that the gift is inappropriate or that the message on the card is inappropriate, the mother shall ensure that the child receives the gift or card that the father has sent.
The father be restrained from:
5.1.contacting any school or organisation at which the children attend to seek any information about the children’s whereabouts or living arrangements; and
5.2.contacting any school or organisation at which the children attend to express his dissatisfaction with their attendance.
The mother provide to the father copies of the children’s school reports twice each year and a copy of each of the children’s school photographs every 12 months.
When the children are each respectively 14 years of age, the mother is to provide to each of the children at that time, contact details which she has for the father and is to indicate to each of the children at that time that they are free to make contact with their father if they wish to do so.
The mother ensure that her son B is not left alone with either of the children and that when he is with the children he is supervised by an adult at all times.
The mother shall from time to time keep the father informed as to a mailing address to which he can send gifts and cards and the father shall use this mailing address to keep the mother informed from time to time of his contact details.
The mother is discharged from the undertaking given to Federal Magistrate Willis on 10 August 2010.
Pursuant to s.65DA(2) and s.62B, 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 these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gordon & Junee has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 431 of 2010
| Ms Gordon |
Applicant
And
| Mr Junee |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about what parenting arrangements are in the best interests of J aged 8 and K aged 5 (“the children”). The mother and father in this case cohabited for a period of approximately 10 years, ceasing in dramatic fashion, when the mother ingested Ratsak pellets, she says to escape the father’s abusive behaviour.
The case centred upon the father’s mental wellbeing and his treatment of the mother and the children. The father has been diagnosed with paranoid schizophrenia in the past. While that diagnosis is now challenged, the mother claims he is still not of an appropriately healthy mind to be interacting with the children. The mother claims the father is emotionally manipulative, and that her separation from him has improved her mental wellbeing and capacity to parent.
APPLICATIONS
The orders the mother seeks are set out in her Summary of Case document of 1 August 2011. The mother seeks:
3.1.That the children [J JUNEE] born […] July 2003 (8 yrs old); and [K JUNEE] born […] September 2006 (5 ½ yrs old) live with the mother
3.2.That the mother have sole parental responsibility for the children
3.3.That the father not spend any face to face time with the children and that he not communicate with the children other than:
3.3.1.in writing, with such communication to first be viewed by the mother and be passed to the children only if the mother considers its [sic] appropriate
3.3.2.by way of gifts and cards on special occasions including each of the children’s birthdays, and Christmas Day providing that any such gift or written message be appropriate
3.3.3.by telephone on special occasions such as on each of the children’s birthdays and on Christmas Day each year, with the father to place the call to the children and the call not to exceed 30mins in duration
3.4.In the alternative to Order 3, if the court considers it to also be in the children’s best interests that they spend time with the father, such time to occur under supervision being at the [Town 1] Contact Centre or otherwise supervised by such person or organisation that the mother agrees to
3.5.That the father be restrained from:
3.5.1.denigrating the mother or any member of the mother’s family to or within the hearing of the children
3.5.2.denigrating and [sic] [Mr & Ms Gifford] to or within the hearing of the children
3.5.3.discussing with the children, any aspect of the mother’s parenting
3.5.4.abusing or using foul language to the children, or the mother, or to [Mr and Ms Gifford]
3.5.5.being under the influence of any illegal substance whenever he is spending time with or communicating with the children
3.5.6.questioning the children as to their living arrangements or any aspect of the mother’s caring or supervision of them
3.5.7.questioning the children about the identity of their school or any extra curricular activity in which they might be involved
3.5.8.contacting any school or organisation at which the children attend to seek any information about the children’s whereabouts or living arrangements
3.5.9.contacting any school or organisation at which the children attend to express his dissatisfaction with their attendance
3.5.10.encouraging the children to defy their mother’s authority or to leave their mother’s care
3.6.That the mother provide to the father:
3.6.1.copies of the children’s school reports twice each year
3.6.2.copies of a school photo of the children once each year
In final submissions the mother amended her primary application by deleting any provision for an order for telephone contact on special occasions. The mother also, in respect of the alternative order that she sought if her primary application was unsuccessful, indicated that the frequency of supervised time as sought was once every three months for two hours together with telephone contact once a week for ten minutes. When the Independent Children’s Lawyer raised the issue of written correspondence, which was also in the mother’s proposal, the mother indicated she would not be happy with such an order, as detailed below.
The mother confirmed she continued to seek her list of restraints against the father and that she would provide him with school reports and photographs
The father’s application is set out in his Response filed 9 September 2010. the father seeks:
6.1.The children, [J JUNEE] born […] July 2003 and [K JUNEE] born […] September 2006 live with the Father.
6.2.That both Mother and Father have equal shared parental responsibility for the major long-term issues of the children, and for this purpose the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
6.2.1.inform the other parent about the decision to be made;
6.2.2.consult with each other on terms that they agree;
6.2.3.make a genuine effort to come to a joint decision;
6.2.4.the process used for resolving disputes about the terms or operations of these orders shall be as follows:
6.2.4.1.the parents shall consult [sic] with a Family Dispute Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
6.2.4.2.the parents shall pay for the costs of the Family Dispute Resolution Practitioner equally;
6.2.4.3.in the event that the parties can not agree on a Family Dispute Resolution Practitioner, the Father shall nominate three practitioners and advise the Mother in writing details of the experience, fees and availability of each practitioner;
6.2.4.4.the Mother shall choose one of the listed practitioners within seven days of receipt of the list;
6.2.4.5.if the Mother fails to choose the Father will choose.
6.3.That the children spend time with the mother as agreed by the parties or failing agreement as follows;
6.3.1.Each alternate weekend from 9:00am to 5:00pm on Saturday and from 9:00am to 5:00pm on Sunday or other wise in accordance with the recommendations of a court appointed Family Consultant;
6.3.2.Half of all Queensland gazetted school holidays from 9am until 5pm each day for half of the school holiday period;
6.3.3.Half special days such as the child’s birthday and Christmas Day;
6.3.4.from 9:00am until 5:00pm on Mother’s Day and on the Mother’s Birthday (should that not fall on a school day);
6.3.5.via telephone at all reasonable times but no more than three (3) times per week.
The father also indicated he would propose that the children come back to Town 2 (near Brisbane) and recommence school at M School. He wished for the mother to see the children at a contact centre until she relocated back to Brisbane and obtained suitable accommodation, and that eventually there would be an equal time arrangement. He further wants an order for the mother to be psychiatrically reassessed. He seeks injunctive orders against Ms Gifford and B requiring both of them to stay away from the children.
The Independent Children's Lawyer sought orders in accordance with the position adopted by the mother in her final submissions. That is, for there to be an order that the children have no contact with their father save that the Independent Children's Lawyer also sought an order that the mother accept gifts and cards from the father for birthdays and Christmases on the basis that the mother have the capacity to monitor whether it is appropriate to give those gifts and cards to the children. The Independent Children's Lawyer also sought an order that on any occasion when J and K were in B’s presence, they be supervised by an adult at all times.
DOCUMENTS RELIED UPON
The applicant mother relies on the following:
9.1.Amended Application dated 7 April 2011;
9.2.Mother’s Affidavit filed 1 November 2011;
9.3.Mother’s Affidavit filed 14 October 2011;
9.4.Mother’s affidavit filed 7 April 2011;
9.5.Mother’s affidavit filed 29 July 2011;
9.6.Mother’s affidavit filed 2 August 2011;
9.7.Affidavit of Ms Gifford 14 October 2011;
9.8.Affidavit of Ms Gifford filed 5 July 2011;
9.9.Affidavit of Ms Gifford filed 14 September 2010;
9.10.Affidavit of Mr Gifford filed 2 August 2011 ; and
9.11.Parenting case summary document for the applicant mother.
The respondent father relies on the following:
10.1.Response filed 9 September 2010;
10.2.Father’s affidavit filed 21 October 2011;
10.3.Father’s affidavit filed 5 May 2011;
10.4.Father’s affidavit filed 4 April 2011;
10.5.Father’s affidavit filed 17 February 2011;
10.6.Father’s affidavit filed 14 February 2011;
10.7.Affidavit of Mr G filed 14 February 2011;
10.8.Affidavit of Ms T Junee filed 9 September 2010; and
10.9.Unsworn affidavit of the father about his understanding about evidence which his mother, Ms Y Junee, would give (Ms Y Junee gave oral evidence).
The following evidence was also before me:
11.1.Case summary of the Independent Children’s Lawyer;
11.2.Affidavit of family consultant dated 12 September 2011;
11.3.Expert Report of Dr M dated 28 March 2011;
11.4.Family Report of the family consultant dated 15 October 2010; and
11.5.Documents tendered by Independent Children’s Lawyer.
SHORT HISTORY
The father was born in 1966 and is now aged 45.
The mother was born in 1975 and is now aged 36.
The mother said the parties commenced cohabitation in September 2000 while the father said it was January 2002.
The child J was born in July 2003 and is now aged 8 years.
The child K was born in September 2006 and is now aged 5 years.
The parties separated on 19 July 2010.
CREDIT
Mother
The mother gave evidence in a reasonably straight forward manner. There were not any notable occasions when I had cause to question the truthfulness of what she was saying. I accept the mother’s evidence and Dr M’s assessment that the mother has a genuine fear of the father. Notwithstanding that, she did seem relatively empowered in the witness box when the father was asking her questions. She was able to respond to the father’s questioning without showing many outward signs of being fearful of him. The mother was able to openly articulate her fear in court in front of the father. For example, the mother said one of the benefits of the weekly telephone calls was that at least she knew the father was still in Brisbane.
There was an issue between the parties as to whether or not the father used florid language in the mother’s presence. The father pointed to the fact that Mr A does not swear and also relies on Mr A’s evidence about the father’s use of language. However, the father had a “tough” upbringing and has been in prison three times. The statements referred to by the mother have been made at times when the father was highly agitated. The father behaved in a highly agitated state on a number of occasions during the trial. The father was not shy in telling counsel for the mother that what she was putting to him was “crap” (this happened on a number of occasions). As indicated below, the father called the Independent Children's Lawyer a “dickhead” during final submissions. I accept what the mother says about the father’s use of language.
Father
During the hearing the father felt the stress of running his own case. On a number of occasions this allowed me to see his demeanour and presentation when he was unpleasant, agitated, aggressive or angry. The father at those times objectively presented in a threatening way. On occasions that threatening manner was palpable. An example of that is the final statement that the father made to the family consultant (see below), a clear threat to the witness.
At the commencement of the fourth day, the father apologised for his aggressive tone and his emotional state at the end of the third day. Notwithstanding that apology, after a short period of time on the fourth day the father reverted to a similar demeanour.
The father’s presentation on 23 November 2011 (when the proceedings resumed after being part heard) was at times angry, agitated and when asking questions of the mother, Ms Gifford and the family consultant, threatening. During final submissions the father interjected, calling counsel for the Independent Children's Lawyer a “dickhead” and made the statement during his own submissions that “we are on the brink of something really bad”. The final day’s evidence was taken by video link with the Independent Children's Lawyer and the mother in the Cairns Registry, the father in the Brisbane Registry and myself in the Sydney Registry. During most of the submissions by counsel for the Independent Children's Lawyer and counsel for the mother, the father turned his back on the monitor which depicted before him those persons making their submissions. The father, in an uncontrolled way, interjected very angrily. At times his language was very intemperate. The father constantly asserted that what objectively appeared to be his very aggressive behaviour was in fact him just being passionate about the prospect of the children not being with him and him not being able to ensure that they developed into adults like his elder son Mr A. He predicted that the children would develop into lost souls who got into drugs and roamed the streets if raised by the mother. The father invited me to observe his body with his shirt off so that I could observe his tattoos and see how scary he actually looked with his shirt off. This invitation was in the context of him attempting to make the point to me that he was not as scary as he looked, just as his demeanour was passion, not threatening anger.
The DoCS’ files record a number of statements by the father, particularly around the date of separation, which do not reflect well upon him. The father explained he was under intense pressure at that time and he had no real memory of what he was saying to the DoCS officers. I accept that notes relating to statements made by the father, contained in the DoCS’ files, accurately record what the father said at that time.
Most of the time the father seemed to answer questions frankly. During what the father called his “passionate” outbursts, I have no doubt the father was letting me know exactly how he felt. The father cried during the evidence given by his son Mr A and evidence given by telephone by his 70 year old mother and was teary in final submissions. As discussed below, the father in 2010 told DoCS that “He has hallucinations and has always had them”. Dr M concluded the father showed some paranoid ideation consisting of overvalued ideas in the nature of delusional beliefs which he could not be talked out of. There were occasions however where the father simply could not remember things (and this particularly related to the timing of particular events). In relation to Dr M’s diagnosis of the father as having overvalued ideas (see below), I accept that diagnosis and there were quite a number of occasions during the evidence of the father where the father’s narration of his perception as to what happened seemed exaggerated. One example of overvalued ideas was the father’s insistence that the children are being brainwashed with religion in the Gifford’s household. There is nothing in the evidence to indicate that that is a reality. The children go with their mother and the Giffords to church on Sundays and the children have mentioned ‘Children’s Church’ to the father in telephone communication.
Conclusion as to the credit of the father and the father
The father has little insight as to the effect his behaviour has upon the mother. Unless I otherwise indicate, where the evidence of the mother and father differs, I accept the evidence given by the mother.
Mother’s Witnesses
Ms Gifford frankly made the comment that N (the children’s half brother who lives with his grandmother, Ms Gifford) has a difficulty with his temper and that has been getting worse over the last few years, accepting that he was having tantrums, breaking things and swearing, and has a “temper issue”.
Ms Gifford expressed the hope that the mother, in the fullness of time, will move into her own independent accommodation. I accept the genuineness of her wish that she did not want the mother living in their household forever. It transpired that the mother had gained independent accommodation in the time the matter went part heard. Ms Gifford gave candid evidence as to how it came about. She did not want it to happen at that time, she thought it was to the mother’s forensic disadvantage to move house in the middle of a court case. She explained however that the mother had been looking around, that she put her name down for a particular place and to her surprise got it and became excited and decided to move.
Mr Gifford was supportive of his wife but did not give the impression that he was significantly involved in decision making in relation to the children.
The mother’s sister Ms E (who is currently in a relationship with the father’s son) did not involve herself as a witness in the case and the mother said in her evidence that she had expressed a reluctance to become involved.
Father’s Witnesses
The father’s adult son Mr A (aged 24) provided evidence on the third day by video link from Brisbane. He was an impressive young man. He has recently commenced a live-in relationship with the mother’s sister. The father said Mr A remained at school until year 12 and is a good boy with a good peer group.
Mr A presented as a responsible young adult. He says he has never taken drugs. He has had serious conversations with his father about his disapproval of his father taking drugs. He indicated that his father had confined himself to taking drugs in a particular part of the house (the bathroom) and late at night. Mr A is not prone to using swear words.
Although Mr A confidently said that he was his own man, one of his answers that he gave indicated that he may well be deferential to the views of his father. He said “I will do anything you say because you’re my father, but you will not influence my actions”.
Mr A confidently said that his father never used a strap. This was inconsistent with even the oral evidence of the father and certainly inconsistent with statements the father made during the DoCS interview.
The father’s mother
I am unable to place any weight on the evidence given by the paternal grandmother. The father’s mother clearly loves her son and was aligned with the father. She sung his praises, telling me “he’s the best father I have ever come across and I think he should – they should be with their dad because he’s a wonderful dad, he looks after them, he plays with them, he takes them everywhere, he buys them everything and his heart is for his kids. He is the most wonderfullest dad I have ever come across and I’ve seen – I’ve seen a lot of dads”.
The paternal grandmother accused the mother of ‘belting’ J when he could not sleep, “mostly every Friday night” when the father was not home. The paternal grandmother gave evidence that she was residing with or near the mother and father for 7 months in the year, but said she only mentioned the mother’s treatment of the children to the father once, and he may not have heard her because she could not talk properly with her illness. The father’s mother said the mother controlled her but it was not clear how. I do not accept the paternal grandmother’s evidence that the mother was regularly assaulting her grandson but she was unable to make that clearly known to her son.
The paternal grandmother also accused the mother of ‘picking on her’ by telling her, each time the father drove somewhere, that she hopes he gets in an accident and dies. The paternal grandmother claimed the mother said this because she hated the father but was never asked to explain why she hated him. This seemed to be at odds with the paternal grandmother’s evidence that she and the mother had been very close.
The paternal grandmother gave some confusing evidence that before J was conceived, and after the mother communicated her desire to leave the father, the mother had said to her “I’m going to get him back” by having a baby. The paternal grandmother could not explain why the mother wanted to get the father back, nor how having a baby would achieve this.
Counsel for the mother put to the paternal grandmother that the mother would confide in her about the treatment she was experiencing at the hands of the father. The paternal grandmother denied this. She then was reminded of an occasion where the mother lost her wallet at the shops and agreed that both she and the mother were upset and frightened and both cried. She agreed the reaction was to a fear that the father would come home and be angry. The paternal grandmother then changed her evidence and said that was not the case; there was no fear the father would be angry, and they were both crying only because she lost the bills in her purse. I found that evidence to be inconsistent.
The paternal grandmother concluded her oral evidence by saying “I’m – I’m pretty dumb, I’m pretty dumb, I’m not well educated”. The paternal grandmother was able to express herself clearly in her oral evidence and I do not believe any shortcomings in her evidence relate to her level of intelligence or her age. I found she was strongly motivated in her evidence to improve the father’s case and weaken the mother’s case.
The family consultant
The father asserted the family consultant was biased. He told Dr M that she had concluded that he was a “bad man”. That phrase was not one used by the family consultant. At the end of his initial cross examination he threatened her with the words:
“Would you mind that one day, that I’m going to attain a degree, and whatever that degree is, I’m coming for your resignation? Would you mind if I do that?”
The family consultant gave her evidence in a resolute and professional manner. She responded to the father’s questions in a calm and measured way, notwithstanding the energetic and at some stages belligerent tone of some of those questions. The opinions she expressed were not effectively challenged by the father and my impressions of the father during the hearing were consistent with those made by the family consultant.
DETAILED CHRONOLOGY
The father was born in 1966 and the mother was born in 1975.
The father had a relationship with another woman in the mid 1980s and early 1990s lasting 17 years. They had one child, Mr A, born in 1987 (who is currently 24 years of age). They separated when Mr A was 10 and he resided with the father. Mr A has been living until recently in a caravan in the father’s backyard. He is employed and has been for 10 years.
In the mid 1990s the mother had a relationship with Mr T. They had two children, Z, born in 1997 (who died at 7 ½ months of age from myocarditis) and B, born in January 1996 (currently 15 years of age). There was an incident of a sexual nature between B and J when B was 10 and J was 3. B now lives with his father, and does not currently have contact with the children.
In the late 1990s the mother had a relationship with Mr C. They had one child N, born in August 1999 (currently 12 years of age) who lives in the home of Mr and Ms Gifford.
The mother said the parties commenced cohabitation in September 2000 while the father said it was January 2002.
The mother said the first act of domestic violence occurred in 2001 when the father accused her of looking at other men and ‘backhanded’ her. The parties separated for three months following this incident.
J was born in July 2003.
K was born in September 2006.
The last occasion of domestic violence reported to Dr M involved the father punching the mother on multiple occasions during a period of half an hour, pushing her onto a lounge, and striking her across the face resulting in a bruise. The mother said K was listening.
The parties separated on 19 July 2010. On this day the mother ingested 20 to 30 pellets of Ratsak. She said this was the only way to escape the father and denies being suicidal. The expert opinion is that this was not a suicide attempt but she aimed to have herself admitted to hospital. While the mother was in hospital the children were cared for by the father. Upon discharge the mother moved to Town 1 in Far North Queensland while the children remained with the father in Brisbane. The father had the children for 17 days.
On 5 August 2010 a recovery order was granted for the children to reside with the mother in Town 1. The father said the children had to be prised from him and carried away. They thereafter communicated with the father once a week by telephone.
The mother, father and the children were assessed by the family consultant in 2010 and she published a Family Report on 15 October 2010.
The mother had an interview with Dr M on 12 November 2010 and the father had an interview 21 March 2011. A subsequent report was finalised on 28 March 2011.
During the first four days of the trial the mother lived in a large house on 10 acres that is owned by Mr and Ms Gifford (her son’s paternal grandmother and partner). That household consisted of Mr and Ms Gifford, the mother, the subject children J and K, the mother’s other child N born in August 1999 (aged 12) and S (Ms Gifford’s grandchild, aged 18). There are also a number of pets. The mother was working between 7am and 10am five days a week (including weekend work). Ms Gifford took the children to school and preschool while N rides to school.
The family consultant published her supplementary report on 9 September 2011.
During the final day of the hearing, the mother gave evidence that she has moved into independent rental accommodation with J and K, while N remained with Mr & Ms Gifford. The children communicate and spend time with the Giffords frequently. The mother now works from 11am to 2pm on Tuesdays, Thursdays and Fridays.
MAJOR ISSUES
The Father’s Mental Health
The father has previously been diagnosed as paranoid schizophrenic in 2005 by Dr R, who he had seen for 2 years. The father admits not taking medication, saying it did not suit him as it resulted in bad dreams, weight gain, insomnia, a feeling of his brain moving in his skull and feeling like everything was moving around him. He also told DoCS that “he will not take antipsychotics as he fears the effects, people are shot because of their medications”. The father agreed he was sick for a year in 2004.
The father said he experienced the sound of his own voice in his head for about a year while taking marijuana. He agreed that on 19 August 2004 he went to hospital because he believed that something in his stomach was radiating up into his brain. He had been unable to get up off the lounge in the matrimonial home for a period of approximately two weeks.
The father was asked about a statement that he made in 2004 that his “walkman kept him invisible”. The father explained at that time he was very apprehensive about going out in public because he believed that everybody was looking at him and by listening to music on his walkman, he was distracted from thinking that people were looking at him as a freak. The father also said he believed at that time that there was a black crow that followed him around the neighbourhood.
When asked about the DoCS report which said on 27 July 2010 he was hearing voices regularly, the father said that he heard his grandfather’s voice but that has not happened for the last twelve months. I note the records say “[the father] indicated that he has hallucinations and has always had them” and after noting he does not take medication, “[the father] indicated that he self manages by ignoring everyone and hums or talks to the children.” I do not know whether ‘everyone’ refers to voices or to actual people. He later said that “his father and step father talk to him and he does not want them to leave…they tell him ‘watch out today, [the father’s first name]’”. This evidence is contrary to the father’s claim he was only sick for one year in 2004.
The father currently relies upon a disability pension arising from the diagnosis of schizophrenia, and that of social phobia. The father asserted that the medical evidence in this case would indicate that currently that diagnosis should not be relied upon. When I asked the father why then he would not be able to seek regular employment, he indicated that he did not believe that emotionally he was in any position to do so.
The father saw Dr P recently for a report and he advised the father was not suffering from schizophrenia but may have had a substance induced psychosis. Dr P also diagnosed him with an adjustment disorder with depressed mood. Whilst Dr P indicated the father might have a learning disorder, the father did not believe that he did. Whether or not the father has a learning disorder, as I comment below, it was clear to me, throughout the hearing, the father was above average intelligence.
The 2011 report of Dr M revealed the father still has difficulties with his mental health.
The mother described her past experiences of the father to Dr M. The mother told Dr M that the father always thought people were attacking him, and suspected the house was bugged and that there were suspicious cars parked outside. She described excessive jealousy. She said the father experienced auditory hallucinations. The mother gave evidence that the father was extremely paranoid, with bouts of extreme violence and would not engage with mental health professionals.
The father told Dr M that for about 6 months that people were judging him. In describing his self-diagnosed brain damage, he said “I am a little different; I have heightened perception; I sense things”. Dr M noted the father was frequently tearful during his interview, showed some paranoid ideation but no evidence of delusional beliefs. The paranoid ideation was more consistent with ‘overvalued ideas’ than overt psychosis at the time. Overvalued ideas are ideas that are in the nature of a delusional belief that people cannot be talked out of. The probable diagnosis given by Dr M was substance induced psychosis.
Dr M recommended the father would benefit from the continuing care of a psychiatrist. The father believed that he was in no need of psychiatric counselling except for the trauma that had been caused by the mother and by Ms Gifford.
The following are examples of the father’s overvalued ideas:
68.1.The father perceived that the family consultant had called him “a bad man”. These were words used by the father about the family consultant to Dr M when she was interviewing the father. The father clearly perceives and told the family consultant that she had not said a good thing about him. That misunderstands some of the good things the family consultant did say about the father.
68.2.During the trial the father seemed to pointedly blame both Ms Gifford and the family consultant for putting him in a weak position. Whilst it might be true that the mother may not have had the strength to leave had it not been for the support offered by Ms Gifford, I find the mother has now obtained a measure of independence that enables her to make her own decisions.
68.3.While trying to explain why the mother left him, the father questioned the family consultant, to establish that the death of the mother’s daughter nine years ago and the fact that she had no counselling or assistance at the time, had been the primary (and I think in the father’s mind almost the only) cause of the circumstances that led to the separation. The father ignores the fact that the father’s behaviour at that time provided an obvious trigger for the mother wishing to finally leave.
68.4.The paling fence around the family home was installed because the father was fearful that somebody might break into the house and rape the children.
68.5.When the police first came after the separation to question the father with DoCS officers, the father told the DoCS workers that “the police had a meeting about putting him down if he acted out, he was concerned that [Mr A] may have been killed in the crossfire”.
68.6.The father also told DoCS officers in July 2010 that he was scared of the Samoans in the area as he believes they are warriors. If they look at him he looks away. The father also mentioned that “because of his hallucinations he is warned. It is like an eye in the back of his head”
68.7.The circumstances surrounding Z’s death, discussed below.
68.8.The father’s belief that the mother had multiple (up to 5) boyfriends in the matrimonial home during the period of their relationship. The mother gave evidence that she was entirely faithful to the father during their relationship and I accept that that was so.
68.9.The father had the view that he had been methodically poisoned by the mother during the course of their relationship. The father said he had to monitor what the mother gave J for breakfast because the mother was lacing J’s breakfast with sugar. The father asserted that when he took over control of J’s breakfast he excelled in school because of the reduction of his sugar level.
68.10.That B came to their home and deliberately destroyed their family.
68.11.The father indicated on the last day that he was aware of a certain rivalry that existed between Brisbane and Cairns and that is why the family report was against him. In final submissions he said “I was informed long ago when this first started that there’s an issue between Brisbane and Cairns. It’s a hidden thing. Cairns competes against Brisbane. Now I’ve seen a lot of bias in this stuff here. [The family consultant’s given name]’s situation is just beyond belief.” He later said that “I believe there is some sort of coercion here. The report, is extremely biased and it was deliberately done I believe to get me to lose Legal Aid so these guys can just rip me to shreds. They’re doing it for money. I believe they all need to have a really good look at themselves. Because you’ve heard my voice and my children communicate without the interferences and that should have touched them, and it didn’t. Money is the only concern in this competition between and Cairns, all that matters”
The father is heavily tattooed and refers to himself as a “tattooed man”. Much of that tattooing on the father’s body was remedial. The father was involved in self mutilation of his body by tattooing himself using needles and Indian ink starting when he was 13. Much of that tattooing that he has subsequently had has been aimed at covering that original self mutilation. The father gave evidence that he has his daughter’s name tattooed right up one of his arms and he has “Daddio” tattooed across the middle of his back. “Daddio” is the name by which the children know him.
In summary, both Dr P and Dr M agree the father had a substance induced psychosis. Dr P also diagnosed the father with an adjustment disorder with depressive mood. Dr M also assessed the father as having paranoid ideation.
The Father’s History
Dr M describes the father’s childhood as ‘extremely prejudicial’. The father said it was “neglectful”. When he was two he fell into a bucket of water and was in a coma for two weeks. In 1968 he fell into a pot of boiling water and sustained burns. He has had two car accidents. In one, as a pedestrian, he was hit by a car, propelled into another lane and was run over by a second car. The father said the paternal grandfather beat him with a cricket bat and on one occasion tied him to a car and left him out overnight. The father went to many schools, was a “tough guy” who fought a lot and has had no schooling after grade six. The father lived on the streets at one point and says he was independent from age 15.
The father was in prison at age 17, and has served three sentences in total for break and enter and arson. He was involved in a prison riot during one of these internments and given another three months. He was placed in solitary confinement at one point. The father also has been convicted of breaching probation and bail, dangerous driving, unlicensed driving and receiving. The father said he has had no criminal activity for 20 years. I note there are two convictions in 1993, one of breaching the Bail Act and one of Break, Enter & Steal, however it appears the latter actually occurred some years prior to conviction.
The father admits to: having sniffed glue and taken Mogadon for two years; having smoked marijuana; and using amphetamines heavily in the past. The father says he does not take illegal drugs now. The father asserts that he has had a number of years where he has not taken drugs. The father has never had any therapy for drug use. The father said he rarely drinks, if at all. He said he had gone out drinking on the occasion he came to Cairns for interviews for the family report. The mother said he has blown marijuana smoke in N’s face in the past. The father said if they smoked in the house it would be in the bathroom and he would blow the smoke out the window. I accept the mother’s evidence about this matter.
The mother said, when the parties were together, the father talked about suicide and once poured petrol on himself. He admits thoughts of suicide, but only when he was taking drugs. He denied dousing himself in petrol.
The father bemoans the fact that his troubled upbringing has meant that he has lost his opportunity for being somebody exceptional. As Dr M comments, the father is of above average intelligence. The way in which the father was able to conduct his case over more than three days in the final phase of the hearing enabled me to confirm that assessment of the father’s intelligence.
The father says that despite his traumatic childhood and prejudicial early adulthood, nothing compared with the trauma that he had been through by having his children removed from him.
The Mother’s Mental Health and History
The mother admitted to poisoning herself with Ratsak but denied suicidal thoughts. Dr M thought that denial was credible. The mother reports that on the night of the incident, the father was abusing her sister (Mr A’s partner) and then started on the mother for about half an hour. The mother alleges that the father said to K (the younger child) “we don’t want mummy here anymore, mummy has a black heart and doesn’t want to be part of this family” and told the mother to “fuck off out of his house”. The mother also says the father threatened to kill her. The father only concedes he asked the mother to leave. At 11:30am the mother began gradually taking Ratsac pellets until she heard the father leave with K at 12 noon. She went to the caravan where the father’s son Mr A and her sister Ms E lived and told them what she had done. Her sister rang the poisons information line who advised her to take the mother to hospital. The mother was given treatment and before her psychiatric assessment the father arrived with the children. He left N with the mother but left taking the other children with him. The psychiatric assessment concluded the mother was not suicidal and she was discharged at 10:30pm. She stayed with a friend for the night then moved to Town 1. In July 2010 the mother made a notification to the police about the risk the father poses, including his verbal abuse in front of the children, his threat to kill K if she turns out like her “slut of a mother” and his socially controlling behaviour.
The mother’s evidence is that she took the Ratsak pellets because she was no longer able to withstand the father’s abuse. She did not trust herself to drive away because she was in a “panic state” and did not trust herself to make decisions that would enable her to keep her and the children safe from the father’s pursuit. She agreed that she had taken the children in a motor vehicle that day and had not attempted to make her escape at that time because she was scared the father would hunt her down.
The DoCS report says that when asked about this, the mother advised that “if she would have asked him to leave the other children, he would have left”. I take that to be the mother saying she feared the father would have gone away with the children. The DoCS report from the hospital where the mother was admitted after taking Ratsak says “No…child protection concerns. Mother stated at the time that the father was “good with them [children]”. I accept that the mother was in a highly vulnerable state at the time she made this statement to DoCS. It is inconsistent with requests to nurses that she made at the same time (as recorded in the hospital notes) for them not to allow the father in to see her.
The mother said that she had not spoken about her apprehensions arising from the relationship with anybody apart from Ms Gifford. She had no support. She did not want to speak to anybody else because she was frightened that any information that she gave any other person might leak back to the father. She did not speak to her GP about her predicament.
The father notes that in the mother’s previous affidavit and in Court she mentioned the father’s threat to kill her on this day, but does not mention that in her most recent affidavit. I place little weight on the omission from the mother’s most recent affidavit and accept that the father threatened to kill the mother on this occasion. The father’s version of the events is contained in paragraphs 43 to 50 of his most recent affidavit. The father said he took K out after an argument about the mother’s sister and when he called the mother an hour later to see how she was she did not pick up. Mr A then called to tell him what happened. The father picked up the boys from school and called the hospital who said to come later, which he did after dinner. He said at the hospital he was angry about what she’d done and wanted to leave N there as a reminder of why she should not kill herself. He said the mother told him to send the child to his grandmother’s home.
The mother said her own mother’s love for her was intermittent and conditional on good behaviour. The mother was sexually abused by one of the mother’s boyfriends when she was six years old. She is not sure if she was penetrated. She also recalls this boyfriend dragging her mother by the hair and pulling a gun on them. The mother denies symptoms of post traumatic stress disorder, but agrees she lacks trust in others.
The mother left home at sixteen.
The mother admitted to having smoked marijuana in the past and took amphetamines occasionally. The father alleged to the mother that she had lost weight recently because she was currently taking amphetamines. The mother responded, and I accept, that she had lost 12 kilograms in 12 months by changing her diet and her lifestyle. In particular, she pointed to the fact that she no longer had the stress of her relationship with the father as something she had to deal with on a day to day basis.
The father believes that the mother is stuck in a world of hurt and because of that she has to hurt him. He is very much of the view that the mother needs to get some “proper help for the death of her daughter”. Dr M notes the mother has a history of choosing abusive partners and has been submissive with the father. Dr M said the mother had ‘personality vulnerabilities’. These personality vulnerabilities, however, are a greater risk to the mother and to the children the more involvement the mother needs to have with the father.
Family Violence
The mother asserts that she was the victim of physical, emotional and verbal abuse occasioned by the father. She said the father made her feel “hopeless, desperate, dirty and degraded” and she continues to be scared of him. The father denies all allegations of abuse.
The father’s adult son Mr A denies ever being hit by the father, and says that although the mother often wore shorts and singlet tops, he never saw bruises on her. Mr A said he did not see any aggressive incidents. Although Mr A was on the property, he was not a significant member of the household in terms of making observations as to what was happening between the mother and the father who were in the household at virtually all times during the day. Mr A held down a full time position which saw him being away from the house from 7.30am until late. Mr A would have his evening meal in the house and shower in the house but was in his own caravan out of the main house for most of the time.
The mother reports that physical abuse started in 2001 when the father struck her in the face, and that in total there were about 10 occasions. The mother’s evidence was that the father was pretty careful about where he hit her so that bruising would not be obvious on any part of her body that would ordinarily be exposed. The mother reports the father kicking her and hitting her around the sides and back of her head. In about May 2010 he squeezed his hands around her neck until she fainted and J entered the kitchen as she was regaining consciousness. In April/May 2010, upon failing to carry out the exercises as explained by the father, she was called a liar and beaten around the tops of her legs. He later pushed her on to the lounge and struck her across the face causing a bruise, which K witnessed. The father said at this time, “I don’t know how today is going to end for you, I think this could be everyone’s last day, I cant live with my daughter having in her head Dad hits Mummy”. The mother told DoCS workers that the father had held a gun to her head in approximately 2004.
The father conceded that in the early stages of his relationship with his former partner Ms D he had perpetrated family violence upon her.
The mother asserted in the hearing that the father required a daily sexual service in the evenings, and he became very annoyed if the children’s bedtime and their failure to go to sleep immediately interrupted this time. The father denies that he treated the wife in any way as a “sex slave” but does say that he and the mother had a very active sex life together. The mother said in affidavit material on five occasions the father forced anal sex upon her. The father admits anal sex but says it was at the mother’s request and he discontinued it when he realised it was hurting the mother. The mother also says she was forced to engage in sex acts which made her uncomfortable, including forced oral sex and having to withstand the father urinating over her. The father concedes he urinated on the mother but claims it was at her request. The mother said he used to suffocate her with a pillow and on one occasion put two plastic bags over her head. I accept the mother’s evidence about the occasions upon which the father forced her to do acts or to submit to acts, against her will, which caused her to feel humiliated and degraded.
The mother alleges a number of threats made by the father towards the mother and the children, as detailed below. The mother told DoCS in July 2010 that the father said that the voices were telling him that the mother has to be dead. The mother said the father has threatened to kill the children and to stab her and the children. The father denies threatening to kill the mother or the children, or alternatively that he may have said it in a ‘jocular’ way. When I asked the father to more fully explain the circumstances in which that might have happened, I find his memory and explanation unsatisfactory:
We used to play badminton, football, whatever. Something like that. And it was never, like, “I will kill you.” Like, “I’m going to kill you, bitch,” something like that. In a funny way.
…
Well, it was laughter before, during, and after I said it. It was during a fun moment. I’ve never said that to [the mother] in an aggressive way at all. Sometimes, I do appear to be aggressive because of the way I look, but from the inside, your Honour, there’s no aggression whatsoever.
Without giving a date, the mother said the father also had herself and B in a bedroom and was pacing with a knife threatening to kill them. In reference to potential cheating with other men, the mother said the father told her “you white aussie sluts are all the same, you should have been killed at birth”. In reference to Aborigines the father reportedly said “if my daughter grows up to be a nigga loving slut like you, I will stab her in the chest and then kill you. I couldn’t have a nigga loving daughter.”
In approximately April 2010 the father held a knife to the mother’s throat and threatened to kill her which the children witnessed. The mother said that the father told the children that he was teaching the mother self defence.
In relation to emotional and verbal abuse, the mother reports that the father has attempted to make her write suicide letters and has encouraged her to ‘take a box of sleeping pills’. Reportedly, the father demanded submission and told the mother she must be punished for disrespecting him. The mother said the father called her names such as a ‘nigga loving slut’, ‘cheating whore’, ‘dumb dumb’ and ‘uneducated pub skank’. The father conceded he called the mother a ‘pub skank’. The mother claims the father called her a bad mother and would tell the children that she is a bad mother, a ‘home wrecker’ and had a ‘black heart’. The father confirmed he did believe that the mother had a “black heart” and had proven it many times. He also used these words in an interview with DoCS in July 2010, and said he did believe the mother’s family were ‘sluts’.
The mother said in the last six months of the relationship the father started dictating the clothes she was to wear, whether she could watch TV or read the papers, her friends and would not let her go out alone or visit the dentist. The mother conceded she was able to go to the dentist when she had a bad toothache. The DoCS notes show their concern about the father’s controlling behaviour, not allowing the children to socialise and locking them in the home. This behaviour was reported by J. The father agreed that he locked the children inside as on a previous occasion he found a home intruder at 4am who he feared would rape the children. He admitted not allowing the mother to see her “exbies” and that he ‘controlled the mother’s ex’s and sex’. He also admitted that he did not like to associate with people and does not have many friends.
The father recalls calling the mother a ‘bad mother’ on one occasion only when she had slammed K’s finger in the car door (although on the father’s version, the mother did that on multiple occasions).
The father makes the point that the mother had a motor vehicle and was free to leave the home. Whilst that is true, the mother indicated that that freedom in her mind was heavily constrained by her fear that if she did attempt to leave, the father would track her down. I find that the mother’s feeling of being trapped in the relationship was genuine and real.
The children gave the following accounts of family violence to the family consultant:
98.1.The parents would yell and scream at each other and at the children;
98.2.When angered the father would yell and hit the children until they admitted whatever he accused them of, whether it was true or not;
98.3.That the mother is happier and not as angry as she was and “does not hit them anymore”;
98.4.During the parents’ last argument, the father got knives out and pointed them at the mother and at [B], which was frightening;
98.5.The father threatened [B’s] father that he would kill him and waited for him with a knife;
98.6.The father dragged the mother down the hallway, and the mother was crying;
98.7.The father drove the car with the family in it at a very fast speed when he was angry, scaring the passengers; and
98.8.The father would accuse the children and mother about talking to others about him and the children would agree to end the ‘tirade’.
J also was interviewed by DoCS and said the following:
99.1.“[B] was in big trouble, he woke [N] up, then he woke Dad up, Dad woke Mum up and then he went into the candle room and smashed [B’s] phone.”
99.2.“That he was worried that the father would get angry about him talking to CSOs and indicated that he could be unsafe when CSOs leave”
I note that in the DoCS’ file there is a record that the children indicated to DoCS workers at the time of the separation in July 2010 that they had never seen their father hit their mother. Given the statements made to the family consultant by the children (for example paragraph 93.6 above), I discount that statement made to the DoCS workers as being one that was inaccurate. It needs to be understood that at that time the children were living with their father and their mother had gone away.
N advised the following to DoCS in relation to the father:
101.1.That the father “has anger management” and goes “skitzo”;
101.2.That he has threatened to kill the kids if the mother took them away; and
101.3.That the father once followed W with a knife and threatened to kill him.
In June 2009, there was a general enquiry due to B’s fear of the father when he was about to be placed back with the father and mother. He alleged at that time that the children were swinging on the washing line when it broke and the father dug a screwdriver into B’s hand when he confessed.
When J was interviewed by DoCS in July 2010 he said that the father “just gets mad, when he is mad, we get in trouble, we get a smack with the belt. He also said K gets smacked with the belt. K however denied that she was smacked or hit with the belt. Neither child said that they were scared of the father. The father initially denied the use of the belt to DoCS officers. The father subsequently agreed that he had smacked the children with a belt. There was a belt ceremony in the 17 day period after the mother left when he threw the belt in the bin. This is reported in police notes. Police were called in February 2009 to investigate B’s statement to a school counsellor that the father threatened to ‘flog him with a belt til he bleeds’ as he had not done his chores.
The father is a martial arts and weaponry expert and can accurately throw knives and screw drivers from a distance. He said that he had been trained by an army seal. He said that over 16 years he had been developing his own brand of marital arts, which he has called “[…]”, which includes skills in the use of weaponry. It is recorded in police and DoCS’ files that the father owns knives and a ‘compound bow and arrow’. J told DoCS that the father had taught him to throw knives into wood in the back yard. The father agreed and said he has also taught him choke holds and flying kicks.
The father has completed an anger management course with Relationships Australia, although he said that the provider of the course realised shortly after the course began that there was no real need for him to be attending such a course.
The family consultant gave evidence the interview with the father had been videoed, at the father’s request. The family consultant did not give a satisfactory explanation as to why she permitted this to happen. The tape was not tendered in evidence and nobody requested I review it. I note in passing it is not appropriate for a family consultant to give permission for interviews for a report to be videotaped (see Hazan & Elias [2011] FamCA 376; rule 1.19 Family Law Rules). The father during the interview, inappropriately in the family consultant’s view (an opinion I agree with), reiterated he knew where they were living.
The DoCS’ report of June 2010 notes that the mother “appears as being genuine in her fear towards [the father] and when she spoke about incidents and comments that [the father] has made to her, she appeared to be re-living these moments and used a specific tone of voice and facial expressions to demonstrate [the father’s] interactions with her. [The mother] was very open with officers in discussing the concerns.”
I find the mother was the victim of systemic serious emotional and psychological family violence which on occasions extended to physical violence, perpetrated by the father against her.
The father’s telephone conversations with the children
Exhibit 12 is a CD/DVD recording telephone communication between the father and the children and the transcript of these communications. The transcripts were sent to the Independent Children's Lawyer and the parties and a copy to the family report writer. The mother said this evidence shows that the father still emotionally harmed and was controlling of the children during telephone communication. The mother describes J becoming anxious immediately before the time when he knows that his father is going to call.
The father said this evidence shows the significant interference by the Giffords, particular Ms Gifford, in telephone calls. The father accused Mr Gifford of enticing the children away on walks so that telephone calls with their father would be terminated. I note that the transcript of exhibit 12 shows that in the first two conversations recorded, the children said they had to go for a walk, before the 30 minutes allocated to the conversation had expired. Mr Gifford denied that he had at any time interfered in such a way with the father’s telephone time with the children and I accept his evidence about that.
Upon reading the transcript of the telephone calls, I find the father involved the children in the parenting dispute in an inappropriate way:
FATHER:They’re just turning [B] against me, mate. It’s not fair. [B] loves her dad. [B]. [B]. No. Wonder why she doesn’t want to talk to her dad all of a sudden, mate? Bit unfair, isn’t it? But don’t worry. It will be all right in the end.
[J]:Yeah.
FATHER:[K]. Wow, she doesn’t even - not want to speak to me at all, [J].
[J]:I know, that’s how she is.
FATHER:Mate, I’ve got – I’ve got – I’ve got a recording of two phone calls ago where she talked to me non-stop and all the others I recorded she has talked to me non-stop. Now all of a sudden she doesn’t even want to speak to me.
[J]:That’s what she does when she’s riding.
FATHER:Yeah, when she’s excited. She should be calm when she’s talking to her dad. It’s important for her, you know. It’s important, but only to me. Anyway, that’s fine. Merry Christmas, [K]. I love you, baby and I miss you tremendously.
[J]:Okay. Say it again because she didn’t hear.
FATHER:Merry Christmas, [K]. I love you, baby and I miss you tremendously and you know what, daddy isn’t going nowhere. I will always be around.
[J]:Merry Christmas.
FATHER:Anyway, mate, it’s just me and you then, hey?
[J]:Yep.
FATHER:That’s good enough for me. But make sure you let your daughter – let [K] know that daddy loves her, mate, and not to forget her dad.
[J]:Yep.
FATHER:You know. Remember, if it wasn’t for the – all this crap, mate, we would be having a great Christmas right now like we did every other time.
[J]:Yeah.
FATHER:You know, it’s heartbreaking. It’s heartbreaking. But anyway, it doesn’t matter.
[K]:Merry Christmas.
On another occasion around Christmas 2010 the following conversation took place:
FATHER:[K], have you found your DS yet, babe? Have you found your DS, [K]?
[K]:Not yet.
FATHER:No? Has [J] found his one?
[K]:No.
FATHER:That’s not good.
[K]:…and chucked them in the bin.
FATHER:Well, I hope not, because it seems only like the things I buy you get taken off you. Have you still got your scooter?
[K]:…she didn’t chuck it in a bin.
FATHER:Well, I reckon probably possible. Did you – are you guys still allowed to use your scooter and your bike, [J]?
[J]:Yes.
FATHER:Yes. See, it’s only my things I give you get taken off you. You need to-
[J]:No.
FATHER:You need to tell mum ‑ ‑ ‑
[J]:The DS hasn’t even been taken off, we just lost them.
FATHER:Well, that’s what you said last time, but mum found them both before. They cost me a lot of money and they’re – they’re precious gifts from me to you, you can’t take them ‑
[J]:…
FATHER:‑ they can’t take them off you. They can take your scooter off you or your bike, not the DSs, they’re not even their property. You ask mum to find them, help you find them, and can you please not take them – use them as a punishment. Okay?
FEMALE:The DSs haven’t been used for punishment, [the father’s first name], they haven’t been ‑
FATHER:Mind your business.
FEMALE:‑ they just have this mentality where they just leave things wherever they’ve been playing with them and now they can’t find them.
This was followed by the following exchange in the presence of J and possible K:
FATHER:You and I have to stop fighting and, like, the children are suffering. I wish you very well, [the mother’s first name], I hope everything works out fine for you, but you can’t keep – you can’t keep hurting me, [J] and [K] like this all the time. We’re a family and we always will be. Nothing is going to change. It won’t hurt you to let the children see pictures of their dad and their brother and their grandmother.
[J]:There’s another phone.
FATHER:Well, I’ll give it to you anyway, [J]. My one is not blocked, it’s fully open.
MOTHER: If you want the kids to have some pictures, [the father’s first name], maybe you should put them to a disk and forward them to your solicitor and then he can forward them to my solicitor and pass them on.
FATHER:[The mother’s first name], I’ve known where Ms Gifford’s] address is for the last six years. You know, as if – as if I would be a partake [N] travelling away and not know where he’s actually going. If you stop – if we can stop fighting, I would love to send some pictures to where you are. Surely you knew I knew the address. [N] has been going there for years. He actually did 12 flights. Well, why can’t you go on Facebook anyway? The kids would love to see pictures of me. They probably don’t even remember what I look like. Anyway, you say that you are going to – you – you’re trying hard to facilitate some sort – some sort of contact between me and the children, a relationship. You have done none of that.
MOTHER:I’m ending the call because this has nothing to do with the kids at the moment. Sorry.
FATHER:Yes, it is.
Prior to this point during the conversations between the father and the children there were other elements of concern. There was a constant preoccupation with the time of the phone calls. The father was concerned with keeping the children on the phone for the full 30 minutes they were designated, the mother or Ms Gifford were concerned with keeping the time limit strict. The children were well aware of the importance of time limit. For example:
[J]:Is it time to go?
FATHER:No, not yet, mate, I’ve got - I’ve got here exactly 18 minutes, buddy.
[K]:Dad? …[other non-transcribed conversation]
FATHER:Yeah, I know, not like last time, mate, where we got ripped off seven minutes; it ain’t going to happen tonight, buddy. I’ve got the timer going. Fair’s fair.
The father also inappropriately involved the children in the dispute on a number of occasions, prior to the disturbing conversations recorded about from around Christmas. He has involved J in conversations about his right to be involved in choosing his school, any move to Sydney, about ‘fair’ phonecalls, his fight to have face-to-face time with the children, about K’s resistance to phonecalls, and whether B was present. He also inappropriately relayed the following to the children about a child who did not see her father between the ages of 2 and 22:
FATHER:Well, I’ll tell you a little story. When she was two years old she got taken away from her dad and now she’s 21 she’s met up with her dad again. Do you remember Uncle [Mr P’s first name] – [Mr P]? …
FATHER:That’s right. And recently they’ve met and now she’s in this house sitting with him right now, and she actually lives in his house. How nice is that? [Mr P] come to work one day and said to me, “My daughter has been - I’m not allowed to see my daughter.” And just this year he comes to me and says, “My daughter is back and she’s here right now.” Her name is - her name is [V]. Do you want to say hello, [V]?
I note that in the conversations between the father and the children, the children were often very distracted and the father found it difficult to maintain their attention. On a few occasions they were still eating their dinner. After the first few conversations, K was almost entirely absent from further phone calls. I do however note the difficulty of maintaining children’s attention on a telephone, particularly at J and K’s ages, and that the allocated time for a phone call is at a busy time of the evening. I accept the Gifford’s evidence that they have done everything possible to try and encourage the children to speak. This is consistent with the family consultant’s impression. If phone calls were to continue, the mother states the best time was when there was a calm period of about 10 – 15 minutes between 8:00am and 8.15am prior to the time the children normally leave to go to school.
Prior to her report, the family consultant had read the transcripts of telephone conversations that were annexed to the mother’s affidavit material, which are less extensive to those included in exhibit 12. The family consultant said that it was the reading the transcripts of the telephone calls that led her to change her views about whether or not the mother should facilitate, on a weekly basis, telephone time between the children and the father. The family consultant was of the view that the father had not been sensitive to how the children have on occasions shown waning interest in the telephone conversations. She did not think that every phone call was child focused (on her estimate only 1 in 5 was). She said that many of the children’s comments were turned around so that the conversation focused back on what was happening for the father.
The family consultant said that the father passed adult content through the children and a lot of what the father was doing in the telephone conversations could easily be interpreted as the father attempting to exert control on the children’s behaviour.
The family consultant recommended against the continuation of telephone conversations and was supportive of the notion that they cease immediately.
The father was concerned as to the accuracy and completeness of the transcriptions provided by the mother. He provided a CD/DVD of taped telephone calls which I had transcribed by Auscript. The CD and the transcript were provided to the family consultant, who prepared a further report. Her affidavit sets out that she both listened to the CD and perused the transcripts. She has provided her opinion, having studied those documents as to the appropriateness or otherwise of the father’s interaction with the children and the appropriateness or otherwise of the mother and the Gifford’s involvement in those tapes. The tapes do not demonstrate what the father initially asserted – that “the children have been used against [him], as weapons” or Ms Gifford’s “excessive noise”, manipulation or interference.
In her supplementary report the family consultant noted that the children wished to speak to the father and Mr A, but found their capacity to remain focused was brief, consistent with their level of development. She noted this to be a common difficulty but suggested 30 minutes was too long. She noted the difficulty of maintaining both children’s engagement when they had different interests. She raises the following concerns:
121.1.the children are exposed to inappropriate exchanges between the father and the adult facilitator (normally Ms Gifford) either directly or through the façade of speaking to the children;
121.2.the father is self centred during telephone calls;
121.3.inappropriate focus on the visitor whom had been reunited with her father;
121.4.talking with the children about matters to do with the parental conflict, using J as a go between;
121.5.that the children are distracted during telephone conversations; and
121.6.that Christmas presents suggested by the father were given to the children by the maternal family, and the father’s reaction of telling the children he would take them back to the shop.
The family consultant said she continued to have concerns about the father’s capacity to be child focussed and about his insight. She thought the father was insensitive to the emotional needs of the children.
When cross-examined further on the final day of the hearing, the family consultant said it was difficult to analyse the effect of the telephone calls and candidly admitted she did not know what the best outcome would be. She said that the short term benefit of the calls for the children was to give them an opportunity to have some knowledge of their father. She however was concerned about the long term effects of having the children being exposed to such hostility.
Sexual Abuse Perpetrated by B
The mother wants to be able to reintroduce B into her household on a supervised basis, for two weeks during school holidays. B currently lives with his father (Mr T) full time. Currently the mother regularly leaves the home to spend time with B.
When J was about three years of age and B ten, B inappropriately sexually interfered with J. Later, J made the disclosure that “[B] sucked my wiener”. Mr A confirmed this statement but in different words, “[B] was sucking my doodle”, similar to the words in the police statement that “[B] sucked my doodle”. B was at the dinner table when the disclosure was made and hung his head. He admitted the act and accepted it was wrong. B’s visits to the parents’ home ceased in 2007. In 2008 B began visiting again. He was later reinvited into the home on a full time basis in 2009. In 2010 B was again made unwelcome in the home.
The mother said that Child Services, after interviewing J on the most recent occasion, said that he had no recollection of the incident (he was 3 years old at the time), speaks highly of B and misses him. The mother says she is willing to protect the children from B should that be necessary, but believes it was a one-off incident.
There was a significant issue of fact between the parties as to when J made the disclosure about B’s inappropriate sexual contact with him.
The mother’s evidence is that she found out about the incident in mid 2007. She said she was shocked and rang B’s father, to whom B had admitted the act. B was banned from the parent’s home and the mother said that she did not speak to B for about a year. The mother said B was having some problems in 2009 and she was asked to have him back in her home. Later, in June 2010 there was an altercation between the father and B’s father which resulted in the father kicking B out of the house in 2010.
The father’s evidence is that the mother knew what had happened at the time when B was invited back into the home in 2009 but that the father was not informed until April 2010. The father’s statement to the police says that upon J’s disclosure the father confronted the mother who “indicated she knew about the abuse but did not respond verbally to the informant’s questions”. B was kicked out of the home in July 2010 for this reason and for apparently stalking a girl. The report was made to police in December 2010.
I note that independent evidence, being the DoCS notes, explains that on 16 June 2009 there was a “General enquiry in relation to father [Mr T] wanting to send SC [subject child] [B] to mother [Ms Gordon] and step-father. SC stated he is scared of step-father ([Mr Junee]) because he threatened to kill him last year because of what he ([B]) did to his step-brothers (sexual nature). Sc acting out sexually (giving oral sex to younger boys).” It was noted the parents acted protectively, engaging him in counselling and supervising him around younger children. Notes taken in relation to that say that “mother cannot cope with behaviours – scared that she will hurt them.” This indicates the father was in fact aware of the incident prior to 2009.
Mr A had originally sworn an affidavit and also gave oral evidence that he remembers the disclosure at the kitchen table occurring in 2010. His affidavit says April 2010 and in his oral evidence he suggested early 2010. When pressed however, his memory was less certain. In the end, Mr A could not definitely say that the discussion around the table when J disclosed the incident was not in 2007.
The relevance of whether or not the father had knowledge of the incident between J and B at the time when B was being invited back into their household in 2009 is diminished when one takes into account the fact that the father was of the view that B had sexually interfered with other boys in the family (his cousin and his younger brother) and so in the father’s mind his return to the household was conditional upon his supervision in any event. I have no further evidence about this later allegation, despite the report given by the father to the police that these incidents were ‘proven’. I also note that B stayed in the father and mother’s household for three months following the disclosure, if indeed it did occur in April 2010 as the father claims. Overall, I accept the mother’s version as to the timing of the disclosure to the father of B’s sexual interference with J.
The mother recalls the distressing way that the father treated B. She said in 2008, when B began visiting the home again, the father called B a ‘poofter’, ‘white haired little cunt’, and ‘home wrecker’. The mother claimed that in 2009 when he came to live in the home full-time the father started to use B for hard work, from early in the day. He called him a ‘child molester’ and ‘paedophile’.
Things reportedly became worse in 2010 and eventually the father required B to leave the home. The mother’s version of this is that the father accused B of making complaints to the school counsellor about the father and said he could either move schools or move back with his own father. I note N similarly told the police that the father said B was talking about him behind his back.
The mother said on the night B was kicked out the father was threatening him and threw the phone at him. The other children were crying.
In relation to the father’s words to B, the father agreed he held the view that B was a “home wrecker” and a “sex abuser”. During one part of the cross examination of the father, the father started a sentence about B but balked at actually describing B with the word that he had in his mind to use. Eventually after a further discussion he said that B was a “danger”. Subsequently however in a less guarded moment, the father referred to B as a “molester” and proceeded to tell counsel for the mother that she should not have thought that she had tricked him into saying it. On the final day of the hearing he referred to B as a “child molester” on many occasions. He also referred to B as a “sex abuser” during oral evidence. The father denied using the expressions ‘poofter’, ‘white haired little cunt’. Given the admission by the father that he held strong views that B was a ‘sex abuser’ and ‘molester’, I accept that the father used the language generally described by the mother. The father told me during proceedings that he believes B is very strange and that he dresses in women’s clothing. When the parties separated, B reportedly said “I just got the best news of my life, mum has left [the father]”.
The father says that he could not trust the mother to supervise B around J. One of the father’s significant criticisms of the mother is her lack of willingness to protect J from B.
The mother said she is willing to take J to sexual abuse counselling, however feels that more harm is being done to J by the father’s constant reminders that B “hurt him”. In her report, the family consultant recommended that J could benefit from engaging in protective behaviour training and attending with a child sexual assault counsellor. J has been seeing Ms SE for counselling. The mother’s affidavit of 29 July 2010 contains at annexure RG- 2 a report from Ms SE which makes a recommendation that there is an overload of counselling, at this stage J needs a break, and could partake in that through a school-based activity. The family consultant accepted the advice of J’s current counsellor that there was no longer a need for protective behaviour therapy that focused on sexual abuse. The family consultant said that J’s counsellor is an experienced counsellor and has a background in protective behaviour therapies in the context of sexual abuse. The family consultant therefore relied upon the recommendation of Ms SE.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
If I were to otherwise find that it was in the children’s best interests to spend time with their father, the tyranny of distance would have created significant challenges in this case. In his affidavit evidence, the father said he cannot relocate from Brisbane because he cannot leave his son. Mr A has now moved away to live with Ms E. At one point the father indicated that if he needed to do so, he would leave his secure housing commission accommodation in the Brisbane area and move to Town 1. I have some reason to doubt whether or not that was anything other than an emotional response. The father said that his current housing commission accommodation is advantageous because he lives in one of the few housing commission houses left that are not privately owned in the area. If he moved to the Town 1 region and obtained alternate housing commission accommodation, it would be, in the father’s view, within a cluster of other housing commission accommodation. The father’s new relationship would also mitigate against my accepting that he would easily move and settle in the Town 1 area. The father’s final submissions seem to proceed on an assumption that he would remain in Brisbane.
The added difficulty to the father spending time with the children is the inadequacy of resources in the Town 1 area to provide appropriate supervision services. I was told that the previous order for contact at a child contact centre had floundered on the fact that it had taken six months to get an intake interview and then six months to get another appointment. In considering non-professional supervisors, the family consultant effectively vetoed Mr A as a supervisor without specific reference to him. She said that close family members may not be sufficiently attuned to the effect that actions or comments of the father may have on the children and may not see those actions and comments as serious enough to warrant termination of the children’s time with their father. The family consultant said that a supervisor needed to be an experienced psychologist with a strong ability to terminate an interaction between the father and the children which was recognised as being appropriate.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))
I have referred above to both parties’ mental health. The parenting capacity of both parents is compromised but the father’s parenting capacity is compromised far more significantly than the mother’s. Continuing interaction between the parents which exposed the mother further to the father’s behaviour would impair her parenting capacity further.
The mother has had two positions of paid employment, one for 2 months and one for 6 months. She did not return to work after having children. She is reliant on Centrelink payments.
The children talked very positively about their new living environment with the mother. One child reportedly told the family consultant “here there is more fun stuff in my life”. The children shared with the family consultant that since leaving the father the mother is “a lot happier; not as angry…loving and caring” and does not hit them anymore. The mother’s parenting ability then seems to have improved with the father’s absence from her life.
The family consultant reported that the children talked positively about their attendance at counselling. N explained that since moving to the grandmother’s home his sadness had diminished.
The father told Dr M that the mother is not a good mother and has been neglectful, commenting that she has no mother’s instinct. He said she gave her first three children Phenergan (the implication being that the mother was unable to fulfil her role as parent without sedating the children). As already mentioned, the father also insisted that the mother had given Z ‘a flogging’ on the night she died. This is a view the father maintains, even after I discussed with him why it was implausible.
In regards to the subject children, the father reported that he has been told by J over the telephone that he had to be saved from the bottom of the pool, the children knew how to take tablets, he had been on a motorbike, and that N’s grandmother had involved them in religion. I do not discount the fact that J may have said some of these things to the father.
In relation to the swimming pool, J simply told the father that he went on a slide into a 1.4m swimming pool and went into the water but did not go under water very far because he had his floaties on. He also said he went down something [undecipherable], and when in the water the mother asked “this bloke” to get him out, but the mother was standing at the bottom in his reach. The father later apologised for overreacting in a later telephone call. The mother denies having to rescue J from the pool and said the father’s excessive worry on the phone was making it difficult for J who was just becoming comfortable with water.
J did tell the father that he was now able to take tablets with water, which he took for a fever. J also mentioned to the father that a friend had taught him to ride a small Honda 50 motorbike, and the evidence of religious involvement that I have mentioned earlier.
The father lives in public housing. The father said he has had about 5 jobs before receiving the disability support pension which he has received for 5 years. The father said he currently receives the pension for depression and agoraphobia. He mentioned in his affidavit his goal of getting back to work, perhaps starting a company making craft products. The father and the mother purchased a craft business in 2010. The father believed he could not continue with the craft business because the mother sustained him and because he could feel the mother by his side when he was making the craft products he could no longer carry on doing it. In his oral evidence, the father was far less certain of any ability in the foreseeable future to returning to a remunerative activity and stated “my name is Daddio and I take my job very seriously”.
The father had done some tattooing for a fee. The father however said he had hurt his hand in a martial arts training accident and could no longer hold the tattoo gun.
The father said the children grew up in his house and would have a room each. He said he has plenty of support in Brisbane.
Whilst each parent may have the capacity to attend to the children’s physical needs, the mother has the far superior capacity to deal with their emotional and psychological needs.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
I have already commented upon the age of the children. This consideration has no other particular relevance.
If the children are Aboriginal or Torres Straight Islander (s60CC(3)(h))
The father is of Aboriginal descent. He told Ms PE “I have an aboriginal spirit; so do my children. We are spiritually connected”. He explains what his Aboriginality means to him in his affidavit of 4 April 2011.
In the hearing, the father had the view that he has a sixth sense and said that he believes that is because of his part Aboriginal heritage. The father said that he believed that part of his difficulties had in the past come from the conflict of having “two bloods in my body”.
The father said on the final day that he recognised himself as being Aboriginal out of respect for his grandmother who was part of the Stolen Generation and noted that along with the Aboriginality in their blood, the depression caused by the Stolen Generation ran in their blood.
The father however agreed he never did anything to practice his Aboriginal culture and in fact could not cope with the Aboriginal people in his own area, who he described as “alcohol abusers” and “violent” and unlike the “genuine Aboriginal, without the alcohol and all that” who “is just a beautiful, natural human being”. On the final day of the hearing the father said that he recognised himself as being Aboriginal and “I don’t have to go hang around with Aboriginal groups to do that”. The report writer noted the father does not identify with or partake in Aboriginal cultural practices.
The mother also said she has an Aboriginal background but that she does not identify with it. I note she did not tick the applicable box on her Amended Application. She said the children do not know their ancestry as yet, but she is happy to introduce it to them by way of the Aboriginal Cultural Centre in Town 1 which operates programs, and has taken them on outings such as an indigenous arts festival. The children have not been exposed during the time the parties were together to any Aboriginal connection.
The mother questions the father’s motivations in citing his Aboriginal heritage, noting in her affidavit of 7 April 2011 the many instances where he has made racial slurs against Aboriginal people. The mother gave evidence that during the time they were together the father did not identify with the community and that there was nothing in the former matrimonial home, apart from the father’s “confirmation papers” that would indicate that the father had an Aboriginal connection.
Given the history of the father’s lack of involvement with Aboriginal culture, I do not believe the children will be exposed to that element of their heritage by their father in any significant way. If exposure to Aboriginal culture is at this low level, and the mother is willing to involve the children in Aboriginal events, then neither parent is necessarily more equipped than the other to teach the children about their heritage.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
The father feels strongly about his children and I believe genuinely feels he has their best interests at heart. However at paragraph 111 of the family report the family report writer says that during the interviews and observations the father tended to be self focused and relatively insensitive to the emotional needs of the children, and that is an accurate assessment of the father.
The mother said the father has not been involved in the children’s care without significant help from herself, and it was the mother who undertook all household duties. The father denies this however and said in the proceedings that when the mother took the Ratsak he knew it was time for him to step up to the plate because his children had nearly lost their mother. I note N told DoCS that the father stayed on the lounge and watched TV and the children made their own lunches. He said at dinner time if the children are laughing the father tells them to be quiet. I find the mother was primarily responsible for the day to day care of the children.
Ms Gifford had had significant involvement in the mother’s parenting since leaving the father. Ms Gifford noted that she had taught the mother some skills and the mother said she often discussed important issues with Ms Gifford. Ms Gifford noted that although the mother had moved into independent accommodation she will continue to monitor the progress of the mother with the children. I am confident that the mother and Ms Gifford are continually in contact on almost a daily basis and the children (N, J and K) see one another almost on a daily basis. Ms Gifford said she does not think for the moment that there will have to be a significant issue where she is required to intervene, but would do so without hesitation if she needed to protect the children.
I accept that during the time the parties were together the father had to have absolute control as to who came to the house and he thought the mother was not competent to make parenting decisions about which of the children’s friends came to the home.
The father said the mother was more interested in socialising and watching television than the children. The father commented during his oral evidence that on “many occasions the mother was a good mother” but then added those occasions were “far and few between”. Dr M believes the mother is child focussed and I accept she is.
One of the father’s strongest complaints relating to the mother’s attitude to parenting was that while he was out he left B and J in the mother’s supervision and came home to find that B had gone into J’s bedroom (although B had been prohibited in doing so) and had locked the door. He said in cross-examination:
“[B] would slide his way in the room as he usually does and lock the door behind him. [The mother] was unaware that this was going on, I hope. Maybe she was aware. And when I come home and find that door closed and my little boy is in there with that guy, that’s an indication of [the mother’s] heart, you know? Well, why doesn’t she care enough about [J] to protect him? Why am I the one to have to protect him all the time?”
I have discussed in some detail above the incident of sexual abuse by B on J when B was 10 and J was 3. I have preferred the mother’s account of facts relating to this issue over that of the father’s account. I have found that there is no unacceptable risk in the proposal put by the mother in relation to B coming into contact with the children on a supervised basis.
The mother concedes that she used a wooden spoon for physical discipline but she no longer does so and now relies on the deprivation of privileges to discipline the children. The mother currently handles any anger problems that J has by calm talk and allowing him to go for a walk in the paddocks. Ms Gifford commented that she had taught the mother a lot, and the mother was utilising her knowledge with regards to the children.
There is a reference to the children’s rough treatment of animals. The mother accepted that on occasions in the past the children had been slightly aggressive to small animals but that problem had been addressed and had abated.
The father tendered an entry from N’s Facebook account. He asked the mother why it was that she allowed N at the age of 11 to have a Facebook account when the site itself prescribes use by people only 13 years and over. The mother said that N knew she was not happy about his Facebook account but she had taken the decision it was best to allow him to have it and take steps to ensure that he was using it appropriately. She said she regularly looked at the account to check who N had as friends and had satisfied herself that all of those persons who could contact N on his Facebook account were appropriate.
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
I have already earlier discussed the significant issue of family violence that is present in this case.
During the hearing the father had to be shown a copy of the current domestic violence order for him to be satisfied that the order not only restrained him from going near the mother but also restraining him from going near the children. He said, and I accept, that he was not aware that the order included the restraint in relation to the children. The current order was effective from 11 August 2010 and expires 11 August 2012.
The father asserted that he agreed to the domestic violence order being made in the context of him being through a highly emotional period (including the day of the execution of the recovery order).
He described how, after a period, he had been cleared by DoCS and that the children and he celebrated that they were going to live with him and then almost immediately after the police turned up to execute the recovery order. The temporary order in place from 5 to 11 August 2010.
The domestic violence order was made without admission and the father said after he had spoken to the legal aid lawyers on the morning of the return date of the domestic violence application.
Likelihood of order leading to further proceedings (s60CC(3)(l))
Eliminating the father’s contact with the children offers a better chance for there to be less litigation between the parents in the future.
Other matters
The father made the point that the mother had breached an undertaking given by the mother to Federal Magistrate Willis on 10 August 2010 that “she will not remove the children from their current address, which has been provided to the Court and will be held on the Court file and not disclosed to the father”. The mother explained that she meant no disrespect to the Court and misunderstood the effect of the undertaking. I accept the mother did not have in her mind that she was breaching an undertaking that had been given to the court in August 2010 when she decided to move from Ms Gifford’s home to her own independent accommodation a relatively short distance away. The undertaking was given to the Federal Magistrate in circumstances where the separation had only recently occurred. The mother did not, by way of the move, sever ties with Ms Gifford. I accept the mother and Ms Gifford have a close ongoing contact with one another. When originally cross examined, Ms Gifford said the mother had no time limit on how long she could stay in her home but hoped that “somewhere in the future she will want to set up a place for herself” and made the comment that “one day, my husband and I would actually like to have our house back to ourselves, absolutely”.
I will, on my own motion, discharge the mother from the undertaking that she gave Federal Magistrate Willis on 10 August 2010.
EQUAL SHARED PARENTAL RESPONSIBILITY
The father complains the mother has made decisions about the children’s schooling and religion without consultation from him, and that claim is not without some foundation.
Since coming to Town 1 J has changed schools. The mother explained that J had not settled well in the first school but now has settled very well into his new school. His school report is good and the mother referred to a good parent/teacher interview. The father conceded that J had told him that he had got a good report although the father indicated that the mother had not herself passed that document onto him.
The father complained that the mother had not appropriately kept him informed as the recent cyclone that was to hit Town 1 as the beginning of 2011 approached. I accept the mother’s evidence that there was some communication by the mother to the father. I also accept the mother’s explanation that her focus at that time was on making practical preparations to ensure the safety of the property in which she and the children were living, as the storm approached. The storm in fact caused communication outages because of fallen power lines and the mother says that she informed the father as soon as those communication lines were reopened that all was well. I take judicial notice of the fact that the path of the cyclone was widely documented in Australia wide media at the time and it would be difficult for the father not to have known that Town 1 had not been hit by the eye of the storm.
The mother told Dr M that her functioning has improved since leaving the father. Dr M believes the mother is fearful of the father, and contact with him would impair her parenting capabilities. Having watched the dynamics between the parties, I accept that assessment. On various occasions during the final hearing the father’s demeanour was very aggressive.
The father indicated in final submissions that he has “no beef” with the mother because the way she acted was a result of her being “sick”. He said he wanted to be friends with her and will get along with her just fine. I have absolutely no confidence in this outcome. The father’s demeanour when speaking to and about the mother was entirely negative. The father’s attitude towards Ms Gifford (who the mother often consults) was incredibly negative, referring to her as “disgusting” and someone that likes to steal children. I find that the mother finds it psychologically debilitating and emotionally onerous to have to communicate with the father.
The parents have not communicated much since the mother left the father, and prior to that the mother argued that communication was within the context of an abusive relationship. In the case of Marvel (2010) 43 Fam LR 348, the court when discussing equal shared parental responsibility, commented that:
“a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests”
In this case, not only are there extreme difficulties in communication, there is also family violence. I conclude that there is no prospect that the parents could consult and make a genuine effort to come to a joint decision about long term issues. Sole parental responsibility to those decisions should be left to the parent with whom the children are to live.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Given that there is to be no order for equal shared parental responsibility, I am not obliged to consider the children spending equal time or substantial and significant time with their father. In any event, I consider that neither is in the children’s best interests.
CONCLUSION ABOUT BEST INTERESTS
The experts who expressed opinions in this case gave evidence about the minimum requirements if there was to be face to face time between the children and their father.
Dr M said that any time the children spent with the father should be supervised for the following reasons:
235.1.the mother’s apprehension about the father seeing the children alone and the effect that that might have on the children; and
235.2.the fact that the father had had psychosis in the past.
Dr M was of the view that on the information she had, supervised contact was initially indicated but that then there might be a review and a graduation to unsupervised time. A graduation to unsupervised time should only be considered upon the additional advice of the person who is supervising the contact and should be concurrent with the father obtaining therapy.
Dr M recommended some treatment for the father (paragraph 64). She said if the person was not a psychiatrist then it should be a psychologist or a general practitioner that had appropriate qualifications to provide that counselling. However, the father clearly is of the view that he does not require therapy.
The family consultant believes that the father is a flight risk if he were to have the children on an unsupervised basis. The father responds by saying that had he wanted to take the children he could have done so when the family consultant was bringing the children into the court building for the purposes of the interviews and he was sitting on the step outside the court building with a friend who was also a large man who could more than capably physically handle himself.
The family consultant said that on the assumption the father moved to Town 1, then a monthly visit on a supervised basis would be the outer limit of what would be in the best interests of the children.
The Independent Children's Lawyer opposed all contact including recognition contact on the basis that the Town 1 contact centre would not facilitate that arrangement and would not make an arrangement where once every three months the children could spend a couple of hours with their father. I have no evidence apart from the assertion from the bar table by counsel for the Independent Children's Lawyer that Town 1 contact centre would not facilitate such an arrangement and can place little weight on that submission. I am however prepared to accept that because of the nature of the conflict between the parents and the father’s overt aggressiveness, it may be the parents would not satisfy the contact centre’s intake procedures. As the family consultant has said, any supervision needs to be done by somebody with sufficient training to ensure the protection of the children during the time that they are spending with their father. I have no evidence before me that any such acceptable person is available. I also accept the submission by the Independent Children's Lawyer that any order for face to face time carries with it a high probability of further litigation.
I was sufficiently disturbed at times during the hearing by the demeanour, presentation and attitude of the father. I have reached the conclusion that it is in the best interests of the children now and in the foreseeable future, for them not to have any contact with their father, whether face to face or electronically. Accordingly, I will be making an order in accordance with that sought by the mother and the Independent Children's Lawyer.
The family consultant suggested that videos could be sent by the father and also letters with the proviso that they could be vetoed by the mother. She suggested that the children be aware of where the father was so that they could institute contact when they were older.
The recommendation contained in paragraphs 121 and 126 (the mother to send to the father a photograph each 13 weeks) was still suggested by the family consultant.
The mother has proposed that copies of school photographs of the children be provided to the father each twelve months and given the level of animosity between the parties, I find it is unnecessarily onerous on the mother to require her to communicate with the father every three months by way of sending him an updated photograph of the children.
The Independent Children's Lawyer proposes that the mother accept cards from the father for birthdays and Christmases on the basis that the mother veto those cards in case they contain inappropriate material.
In regards to the Independent Children's Lawyer’s proposed order of the mother receiving cards and letters for the children with the right to veto them if they were inappropriate, the mother said she did not want to be put in a position where she had to accept birthday and Christmas cards and make a determination as to whether or not the children saw them. She submitted that that requirement would create a task for her which was emotionally onerous. The father made it very clear that he was not going to be sending Christmas or birthday cards on the basis the mother vetted them.He claims she would simply rip them up and he wouldn’t waste his time doing it. I am not confident that the father was being entirely rational during his final submissions.
Although the mother opposes the order sought by the Independent Children's Lawyer and the father submitted it would be nugatory to make it, I intend to allow the father, if he wishes to in the future, to send gifts and cards for special occasions, including the children’s birthdays and Christmas, to the children via the mother and impose upon the mother a requirement to give them to the children if she assesses that the content of the cards and the nature of the gifts are age appropriate.
When the children are each respectively 14 years of age, the mother is to provide the children with contact details which she has for the father and indicate to each child at that time they are free to make contact with their father if they wish to do so.
In relation to the telephone calls between the father and the children, looking at the entirety of the evidence, it is my view that having that regular phone call, given the current state of the parties’ relationship, is a recipe for the children to being placed regularly in a situation of considerable conflict and as they grow older, becoming more and more aware of that conflict. That in my view is a recipe for long term damage to the children.
I am confident the mother and Ms Gifford would be vigilant if in fact B does come to Ms Gifford’s house and J and K spend time with him. The mother’s position in relation to supervision of B was that no order should be made. That the court should trust the good senses of Ms Gifford and the mother to make sure that the children are properly supervised in B’s presence. I am of the view that it may assist to remind the mother about supervision if an order was made and I will be making such an order.
The mother has sought ten restraining orders against the father. Eight of them (1 to 7 and 10) are predicated on the assumption that the father would have direct contact with the children. That is not an order that will be made and therefore there is no need to further consider making those restraining orders. The remaining two orders seek injunctions against the father from contacting any school or organisation at which the children attend and it is appropriate to make orders of that nature given that the mother has sole parental responsibility and the father is not to have any direct communication with the children. In finding that it is appropriate to make those orders, I take into account that the mother has proposed that an order be made that copies of the children’s school reports be sent to the father twice each year and copies of school photographs be sent to the father once a year.
I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2012.
Legal Associate:
Date: 12 January 2012