HARRELL & HANCOCK-HARRELL
[2016] FamCA 831
•29 September 2016
FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK-HARRELL | [2016] FamCA 831 |
| FAMILY LAW – CHILDREN – Parenting orders – Unacceptable risk – where absent supervision father presents unacceptable risk of harm – where father has had previous outbursts of violence – where father presents a low risk of physical harm to the child – where father’s OCD causes him to obsessively ruminate matters – where father has a lack of insight and judgement of his behaviours – where father genuinely believes his condition is being well managed – where the father does not perceive any need to change his treatment – where father presents a risk of emotional harm to the child given his OCD symptoms – where this risk can be mitigated by a contact centre – where unsupervised time would be a real and substantial risk – where unsupervised would pose an unacceptable risk of harm to the child – where father alleges mother posed risk of child abuse – where the mother does not pose an unacceptable risk. FAMILY LAW – CHILDREN – Parenting orders - No contact order – where mother seeks no contact order – where father seeks child lives with him – where no contact would risk long-term emotional effects on the child. FAMILY LAW – CHILDREN – Parenting orders – where parties’ communication could not support equal shared parental responsibility – where presumption does not apply – where equal shared parental responsibility is not in the best interests of the child. FAMILY LAW – CHILDREN – Parenting orders – where mother has sole parental responsibility – where father is to discuss with medical practitioners review of his medication and treatment plan – where father is to provide written confirmation of his attendance with medical practitioners – where father shall spend supervised time with child once his mental health condition is stable – where father’s time with child increases in the event the father regularly attends the contact centre and medical professionals – where after 12 months the father has liberty to apply to dispense with the supervised requirement – where child is to attend a programme to support and educate the child with regard to the fathers mental health. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC |
| Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569. |
| APPLICANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock-Harrell |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Stewart |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| DATE DELIVERED: | 29 September 2016 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 16, 17, 18, 19 and 22 August 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Galbraith |
| SOLICITORS FOR THE RESPONDENT: | Slater & Gordon - Kendron |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Dart |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Stewart Family Law |
Orders
That all previous orders and parenting plans be discharged.
Where the child shall live & parental responsibility
That the child, C born … 2011 (“the child”), live with the Mother.
That the Mother is to have sole parental responsibility for the major long term issues of the child.
That the Mother inform the Father of any decision she has made pursuant to her sole parental responsibility as soon as practicable after the decision has been made.
Father’s Health
That the Independent Children’s Lawyer be granted leave to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to Dr N, Dr U, and MM Organisation.
That within 28 days of the date the Independent Children’s Lawyer provides confirmation that she has sent the material as provided for in Order 4, that the Father arrange and attend an appointment with Dr N and with Dr U to discuss the recommendations in Dr F’s report and to speak to his treating professionals about reviewing his medication and current treatment plan.
That the Father continue treatment with Dr N and Dr U and any other mental health professional attended by him as directed by them and follow all of their recommendations including referrals to other treating practitioners and medication.
That the Father be granted leave to provide and is to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to any new treating mental health professionals in the future.
That the Father authorise and this Order acts as such authority to Dr N, Dr U and MM Organisation and any other mental health care treating professionals he attends, to communicate with the Mother about his mental health, including but not limited to providing information about:
a.attendance upon such professional;
b.compliance with medication; and
c.whether he poses a risk to the mother and/or the child.
Time with the father
10.That upon the father providing written confirmation from both Dr N and Dr U of his attendance upon them pursuant to Order 6 and their confirmation that the father is compliant with any treatment recommended by them and his mental health condition is stable:
a.Each party shall:
i.Contact the D Contact Centre at Town E (“the contact centre”) within 7 days; and
ii.Arrange an appointment for assessment for suitability for supervised time if required;
iii.Attend the assessment (if required);
iv.Comply with any appointments made by the contact centre for supervised time;
v.Comply with all reasonable rules of the contact centre; and
vi.Comply with all reasonable requests or directions of the staff of the contact centre.
b.If after assessment the parties are accepted by the contact centre as suitable for supervised time, the Father is to spend time with the child:
i.each alternate week at times nominated by the contact centre.
ii.As close to Christmas, Easter, the child’s birthday and Father’s day, if the centre is able to accommodate those additional times.
c.In the event that the contact centre offers supervised time only at times which are less regular than specified in order (b) then time will be spent at the times which are offered by the contact centre.
Time under order 10(b) is to be supervised by the contact centre and the parties shall pay the fees for the supervision on each occasion in equal shares.
The father shall not attend the contact centre or its vicinity before the time with the child is to start and shall promptly leave the contact centre and the vicinity when the time with the child is ended.
The period of time to be spent provided for in these orders may vary by reason of the closure of the contact centre’s services during school and public holiday periods, and in such event, time will be spent at times when the services can be provided by the contact centre.
That in the event the father fails to take up the opportunity of spending time with the child at the Contact Centre and/or fails to attend the Contact Centre regularly within 12 months of the date of these orders, then Orders 10 to 13 are discharged 12 months from the date hereof.
That in the event:
a.The Father has been regularly attending the Contact Centre and the reports of the child’s time with him from the Contact Centre are that time has been progressing well over the previous 12 months; and
b.The Father’s treating psychiatrist and general medical practitioner confirm in writing that:
i.The Father has been regularly attending upon such professional;
ii.The Father is compliant with medication;
iii.His mental health condition is stable; and
iv.The Father does not pose a risk to the mother and/or the child;
then the child shall spend time with his Father each alternate Sunday from 9am until 4pm with such time from collection of the child until his return, and for the period between to be supervised by an adult agreed between the parties in writing and, in default of agreement, either of the Father’s sisters.
That after 12 months of the father spending time with the child pursuant to order 15 hereof, that he have liberty to apply to dispense with the requirement for supervision.
That changeovers for the Father’s time under order 15 is to occur at the Town E Contact Centre.
Communication & Information sharing
Each party be restrained from communicating with the other party, save and except for the sole purpose of communication regarding parental responsibility and informing each other in the event of an emergency involving the child.
That the Mother and the Father inform the other as soon as practicable should the child suffer any illness, other than minor childhood ailments, or should any major injury occur whilst the child is in their care.
That the Mother and the Father inform the other of any professional or other qualified person they consult in relation to the child and authorise such professional or qualified person to release information to the other parent.
That the Mother and the Father are authorised to obtain school reports, photographs and information relating to the child’s education and extracurricular activities.
That the Mother and the Father inform each other of a contact address, email address, mobile telephone number and notify each other of any change to same as soon as practicable and in any event within 48 hours of any change.
That the Father forthwith enrol in, and successfully complete, a Post-separation parenting orders programme with an appropriate service provider and shall provide a copy of the completion certificate to the Mother.
That the Mother be granted leave to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them to any treating mental health professional she may attend.
That the parents will not denigrate each other or their family members in the presence of hearing of the child.
Other
That the parents do all acts and things necessary to arrange for the child’s attendance at the SS Support programme or another similar programme to support and educate the child with regard to the father’s mental health.
That neither party be under the influence of alcohol above the legal driving limit when the child is in their care.
That the Independent Children’s Lawyer is discharged forthwith upon her providing copies of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to Dr N, Dr U and MM Organisation.
And it is noted:
A.Dr F and Ms G have both recommended that the Mother attend upon a mental health practitioner to assist her in managing the complexities of an ongoing co-parenting relationship with the father. The Independent Children’s Lawyer is supportive of such recommendation.
B.Dr F and Ms G have recommended that the parties attend a Triple P parenting course or a similar course. The Independent Children’s Lawyer is supportive of such recommendation.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC1164/2014
| Mr Harrell |
Applicant
And
| Ms Hancock-Harrell |
Respondent
REASONS FOR JUDGMENT
introduction
This judgment arises out of proceedings concerning the appropriate parenting arrangements for C, born in 2011 and hence presently five years of age (“the child”). Although as recently as in his Amended Initiating Application filed 28 June 2016, Mr Harrell (“the father”) sought orders that he have sole parental responsibility for the child, who would live with him and spend only supervised time with Ms Hancock-Harrell (“the mother”) in his final submissions he primarily advocated for an equal shared care arrangement, seemingly on a week about basis. In the alternative, he sought orders for equal shared parental responsibility and, whilst living primarily with the mother, that the child “at least” spend unsupervised weekend time with him.
For her part, the mother primarily advocated for orders which gave her sole parental responsibility for the child, who would live with her, but apart from cards, gifts and letters, neither spend time nor communicate with the father. The mother justified those orders on the basis that the father presented an unacceptable risk of emotional harm to the child. However in the course of final submissions, the mother indicated that she did not oppose the Independent Children's Lawyer’s proposal insofar as it permitted the father to spend time with the child supervised at a Contact Centre.
For her part, the Independent Children's Lawyer sought orders that, upon certain conditions being met, the father spend at least 12 months of supervised time with the child at a Contact Centre, but thereafter, upon further specific matters also being established, that time would increase to day visits each alternate weekend in the father’s home, in the presence, of an agreed supervisor, with one of the father’s sisters supervising in default of agreement. Again the Independent Children's Lawyer justified those orders on the basis that absent supervision, the father presently is an unacceptable risk of emotional harm to the child. However during the course of final submissions, the Independent Children's Lawyer indicated that she would not oppose a further order that, after 12 months of that home-based supervised time, the father have liberty to apply to dispense with the requirement for supervision.
BACKGROUND FACTS
The father
The father was born in New South Wales in 1965, and hence is presently 51 years of age. He told Dr F, a consultant psychiatrist who assessed him for the purposes of these proceedings, that he had a good childhood and performed at an above average level at school, before leaving half way through year 11 to commence an apprenticeship. He then moved employment between several companies, in a variety of roles, before focusing upon workplace issues resolution, where he has a long history of employment with a number of companies.
He told Dr F that in consequence of “an episode in 1993,” that he saw a psychiatrist and was diagnosed with Obsessive Compulsive Disorder (“OCD”). He would have then been about 28 years old. After a reasonably long relationship, he married his first wife when he was 36 years of age, and it seems as though that marriage lasted for about four years.
He was still living in New South Wales when, aged 42 years, in April 2007 he met the mother.
The mother
The mother was born in Brisbane in 1969 and hence is presently 47 years of age. She grew upon on a rural property in South West Queensland, and reported to Dr F that she had the happy and healthy childhood of a “free-range bush kid” before going to boarding school aged 12. After completing year 12 she qualified as a travel agent, initially working in a rural town and then Brisbane, before travelling overseas. Upon her return she commenced a business which was not a success, and then worked as a personal assistant before moving into work in sales and event management in New South Wales. It was at that stage of her life when, aged 37, she met the father.
The relationship
The parties commenced cohabitation in 2008. The father’s evidence is that in the following month he had a breakdown, in consequence of which he again saw a psychiatrist and was prescribed medication to deal with his OCD. The father identifies that the trigger for his breakdown was a dispute with some former neighbours which he says involved them falsely accusing him of certain things.
The parties married in 2008 and thereafter tried to conceive a child. They later commenced upon IVF treatment and whilst doing so, in September 2010 moved to Queensland. By then the mother had reduced her work to part time, but upon the move to Queensland she gave up work altogether, and did not work again during the course of the relationship. It appears they were able to quickly conceive in Queensland, ultimately culminating in the birth of the child in 2011.
One of the consequences of the father’s medication for his OCD was weight gain. Whilst there is no controversy that the parties had a discussion around December 2011 about that, for his part the father asserts that the mother told him that if she met him then, she would not choose to be with him because he was too overweight. The mother denies that the content of the conversation was along those lines, but rather says “she had told the father that she would not choose to date someone who was 140kg, but added that she had reassured him that she loved him and was concerned for him.”[1]
[1]Family Report of Ms G filed 28 January 2015 paragraph 65.
It is unnecessary to resolve that conflict between the parties, because whatever be the content of the conversation, plainly the father did take the criticism seriously, and it appears to have triggered an obsessional response in him which led to him continually comparing himself with other men to assess whether or not they were the kind of person that the mother would be prepared to have a relationship with. In cross-examination, the father identified that this was a kind of tallying obsession which he had, and which he was conscious was a symptom of his OCD.
Now is probably an appropriate time to identify that the father also concedes that when he is under stress, his OCD particularly manifests itself by obsessive questioning of persons in relation to their sexual activities. The persons whom he interrogates do not need to be his relationship partner at the time, and apparently on one occasion was a complete stranger. The mother says, and was not seriously challenged, that during the course of the relationship, she had on occasion been subjected to intense and unremitting questioning in relation to sexual activities with past partners. As shall be seen, this ultimately was a major cause of the relationship failing.
At some stage during the course of the relationship the father commenced to study a Bachelor of Laws degree, and ultimately graduated. It also appears as though he undertook some post-graduate qualifications in relation to workplace issues resolution.
In September 2013 the mother was proposing to attend a barbeque at which an ex-boyfriend of hers, whom she had dated for about six months when she was 17, was attending. She invited the father to also attend, but he declined. It seems clear that this triggered a further “breakdown.” The mother recalls that the father commenced upon a “revolting” episode of questioning, which thereafter worsened in the following months.[2]
[2]Family Report paragraph 67.
A particularly unpleasant episode occurred on 19 October 2013. By then the father was seeking further assistance for his OCD, including commencing to see his current psychiatrist, Dr N. He also attended at the X Hospital seeking assistance, but it does not appear as though these various interventions achieved any marked success. At paragraphs 99 to 105 of the mother’s affidavit filed 25 August 2015 she recounted the events as follows:
99. On 19 October 2013, [the father] was still not doing well mentally. A fight erupted and [the father] launched into a tirade of verbal abuse in front of [the child]. He followed me around the house making abusive comments and asking me intrusive and disgusting questions, which I attempted to ignore.
100. It became so stressful that I sat with [the child] in the doorway with my hands over [the child’s] ears while [the father] yelled at me and made disgusting filthy sexual comments.
101. I begged [the father] to stop and reminded him of [the child’s] presence but he would not.
102. He said:
a. I had ruined his life
b. I had no right to bring my boyfriends into our life/his life;
c. I wanted to see my ex-boyfriend;
d.He wanted to know how many I had given blow jobs to because I don’t give him blow jobs;
e.He wanted to know how many of my ex boyfriends had stuck their cock in my arse because I don’t do it for him;
f.He said he felt like a piece of shit;
g.He said he was going to have the worst weekend of his life;
h.He kept asking how I ever though it was acceptable to ask him about ‘[XXX]’ – I told him I had made a huge error and told him I was wrong;
i.He said I needed to ‘fix this’ – at this time I told him he needed help but he became increasingly angry, gritting his teeth, holding fists and slamming walls. I suggested he call Lifeline to talk to them;
j.He said it wasn’t his fault;
k.He shouldn’t have to do anything;
l.He said I was a fucking idiot and stupid and once again how I made everything shit;
m.I turned his life to shit.
103. I went inside and started to pack as I had a pre-arranged function to go to for my grandmother’s 91st birthday.
104. As I was packing up the car he was helping me he said he wouldn’t be alone on the weekend and he had fifteen blokes in his head with him and they would all hang out.
105. He told me I was running away and I should be staying with him to help him.
Then in November 2013 the father had another episode which caused the mother to become terrified and feel unsafe to stay at the home. She went into the bedroom and started to pack a suitcase but the father came into the room and physically stopped her from leaving by blocking the doorway. The mother felt pressured to stay and did so.
The final straw came on 5 December 2013. On that occasion the mother’s brother, Mr W, came to visit and inquired about the father’s health. The father responded to him that he was “fucked actually, but all the better for you asking, but its nothing being a fat cunt can’t fix.” Thereafter the father’s behaviours escalated to the point where, when backing his car, it collided with a fence because he was obsessively ruminating about the mother’s previous sexual relationships. The mother says[3] that the father “was not able to control his anger as he was so enraged. He verbally abused me in front of [the child] and [my brother] and even ranted directly at [the child] stating to him that it was “all your mother’s fault.””
[3]Trial affidavit paragraph 112.
The mother’s brother assisted the mother to leave the house with some personal possessions, and she went to stay at her parents’ house where, as it transpired, she then lived for some years with the child.
The father then set about writing the mother no less than 54 text messages that night, ultimately only ceasing at 1:31am. Those messages are detailed at paragraph 140 of the mother’s trial affidavit and plainly involve him obsessing about the mother’s ex-partner, whom the father had declined to meet at the barbeque. The father does not dispute that he sent those text messages, or that they were completely inappropriate, but does point to the fact that he was then suffering from a further breakdown, and in part attributes it to a change in OCD medication that he was then undertaking. Whatever be the cause, plainly the messages were inappropriate, harassing and to a degree, intimidating. Unfortunately this has remained a regular hallmark of the father’s communications thereafter, whether to the mother or to others.
Post-separation
Given the circumstances which had led to her leaving the home with the child, the mother was concerned about the father spending unsupervised time with him. On 21 December 2013 however, she offered the father the opportunity to see the child at a local park in Brisbane, but he declined. She next invited him to spend time with her family on Christmas Day, but again the father declined.
On either New Year’s Eve, 2013, or New Year’s Day, 2014, the father saw a story about a dead child. At paragraph 93 of the father’s affidavit filed 29 July 2014, he said he became “worried about [the child the subject of these proceedings] and desperately [tried] to get assurance he is ok.”
Then on 2 January the father responded to an offer from the mother for him to meet the child at McDonald’s for an hour, with an email declining her offer but saying “not only will it be upsetting but I am scared what I would do and maybe snatch him.” The mother says that that threat horrified her.[4] This caused her to seek to initiate Contact Centre supervised time.
[4]Mother’s trial affidavit paragraph 131.
On 7 January 2014 the mother, whilst the father was absent, attended the former matrimonial home and removed many of the parties’ possessions. Up until then it appears as though the father may have been optimistic of the prospect of reconciliation between the parties, and certainly that appears to have been his goal, but thereafter that progressively ebbed away as the realisation of separation hit home.
On 20 January 2014 the mother’s then solicitor wrote to the father proposing that he spend time with the child supervised at a Contact Centre. The father reported to Ms G, the Family Report writer, that he was “pissed off” with that suggestion.
The father’s unchallenged evidence was that in February 2014 he began to first raise concerns about the child’s safety when in the mother’s care, because of unsecured, and perhaps unlicensed, firearms owned by the maternal grandparents, and kept on the property where the mother and the child were living. However in his Initiating Application, Notice of Child Abuse or Family Violence and affidavit, all filed 11 February 2014, there is no mention of that concern, although there are allegations of physical abuse of the child by the mother, comprising screaming in his face, hitting him, holding his arms and squeezing, shaking him, hitting or banging items, and waving her arms in a threatening manner.
On 20 February 2014 the mother filed an application for a Domestic Violence Order against the father. Whether directly responsive to that or otherwise, on 28 February 2014 the father contacted the Department of Communities, Child Safety & Disability Services (“DoCS”) in relation to the mother’s alleged abuse of the child as set out in his Notice of Child Abuse. Indeed on 28 February 2014 he forwarded to the mother the email response which he received from DoCS, in effect threatening to make a notification, and by email of 3 March confirmed that he had done so.[5] On 4 March, seemingly not having received a response from the mother to his emails of 28 February or 3 March, he wrote to her again as follows:
I have also advised them [ie DoCS] that I believe you told me your parents had guns not properly kept and that they were improperly discharged.
Please start communicating with me about these important issues related to [the child].
[5]Exhibit 9 to father’s affidavit filed 13 March 2014.
That email was sent at 4:50 pm but only shortly later, at 5:16 pm, he wrote again:
I will need to add this to my amended orders for sole custody I am putting in next Thursday unless you can ensure that either I am wrong about you telling me or it has been fixed up and when it was fixed up.
Then the following morning he wrote again:
please confirm that the guns at [Q] Road are registered and stored correctly and have not been discharged contrary to laws and that what you told me has no impact on [the child’s] safety because all is in order.
If you do not do so I will refer the matter to QPS first thing Thursday 6 March.
The reference to the alleged conversation in which the mother had told the father that her parents had guns, not properly kept and improperly discharged, is a contentious matter. The mother says that there was no such conversation. The father asserts that the conversation occurred during the latter stages of the relationship. Whatever be the case, it is plain that in fact at that time there were five weapons stored at the maternal grandparents’ property in a gun safe.
Further, it is not controversial that the father has thereafter embarked upon a quite remarkable crusade in relation to those weapons and their storage, which has even led to his incarceration for periods of time. Indeed it may be fairly said that the firearms issue was, until the fourth day of trial, the father’s primary focus and preoccupation in this litigation.
The crusade commenced when, true to his word, on 6 March 2014 the father appears to have made a report to Crime Stoppers. He advised the mother of having done so. It does not appear as though the mother, or any members of her family, ever responded to these allegations directly to the father, their evidence being that they thought that any response they made would not be accepted by the father, and that their advice was that to engage further with him would only precipitate further abusive emails. Notwithstanding the absence of any response, the father continued to send interrogatory emails to the mother, pressing for greater and greater detail.
On 13 March 2014 the father filed a further affidavit in support of an accompanying Amended Initiating Application, seeking sole parental responsibility and that the child live with him. At paragraphs 48 and 49 of that affidavit he referred to the firearms issue and annexed relevant email correspondence.
On 16 March 2014, in response to the father’s notification to Crime Stoppers, three police officers, all armed and wearing flak jackets[6] arrived in two vehicles at the maternal grandparents’ home. This was to be the first of six such visits by police, albeit apparently the most dramatic of them. The subsequent search did not disclose any breaches of relevant legislation, but it is not in dispute that it was a confronting and distressing experience for both the maternal grandparents and the mother, who was at home with the child at the time of the police visit.
[6]Family Report paragraph 94.
On 18 March 2014 a temporary protection order was made at the J Magistrates Court in which the mother was the aggrieved, the father the respondent, and the child and the maternal grandparents named as persons protected. The order restrained the father from making telephone calls or sending text messages to any of those persons, or from contacting or attempting to contact or asking someone else to contact the maternal grandparents or the child. A similar prohibition was made in relation to the mother, save that there was an exception “to the extent that it is necessary for the respondent to appear personally before a court or tribunal.. [or] to attend an agreed conference counselling mediation session or when having contact with a child…”
Whilst the mother’s affidavit in support of the domestic violence application was not in evidence before me, I infer that she relied upon the father’s, by then, excessive email and text message communications to her and her parents as justifying the orders.
However despite the protection order, the father’s emails neither stopped nor reduced.
On 28 March 2014 Judge Baumann made interim orders for the child to spend day time with the father, such time to be supervised by named paternal family members.
On 16 April 2014 the mother and maternal grandfather attended J Police to report breaches of the interim domestic violence order. The relevant police records[7] note that:
They presented approximately 31 separate documents which detail sent by the respondent to the aggrieved and the named person by the court date. Police reviewed the documents and believed that the respondent has violated the order in that he regularly communicates to the aggrieved and the named person about what should be agreed to in the agreed conferences, counselling and mediation and court trials instead of just arranging those sessions which is the only thing that the conditions of the order allows. The aggrieved needs it to stop. She told police that she has been ignoring the emails but they have been relentless.
[7]1 tender bundle 10-11.
It appears as though a number of charges against the father were raised based upon these facts.
On 29 April 2014 the father commenced to send emails to Queensland Police in relation to the outcome of his report about the maternal grandparents’ firearms.[8] However in addition to sending them to Queensland Police, he also copied those emails into the mother. On 5 May Queensland Police responded to the father’s emails, advising that they would not accept any further reports or information about the matter, but also referring to the temporary domestic family violence order, and stating “by including your ex-wife into these emails you are committing further offences of domestic violence and I would suggest that she would bring these to the attention of the Magistrate at the next court date. YOU SHOULD STOP ALL EMAILS TO HER NOW.”
[8]Annexure 19 to the mother’s trial affidavit.
However notwithstanding him by then being charged, it appears as though even this did not deter the father, and indeed further charges were laid in relation to the chain of 29 April emails. However even this second lot of charges did not serve to persuade the father to comply with the interim domestic violence order either, and on 1 June 2014 he wrote a further email to the mother saying “will you advise me what I need to facilitate [the child’s] toilet training. What the fuck is wrong with you? I am his father and care more for him than you and your cunt of a family ever will. It is not about the [Hancocks], its about [the child]. Start showing some responsibility will you.” The father was further charged with a breach of the interim domestic violence order arising from this email.
At paragraph 207 of her trial affidavit, the mother says that on 2 May 2014 the father sent 14 very abusive emails to her “containing explicit language, threats and intimidation directed towards myself, family, friends and my legal representatives…” He also sent abusive emails to the proposed psychiatrist in these proceedings, Dr B, in which, amongst other complaints and threats, he said “don’t fuck with me I am the wrong fucker to fuck with.”[9]
[9]Exhibit 11 to the mother’s trial affidavit.
On 4 May 2014 an incident occurred during the course of a changeover of the child into the father’s care. It will be recalled that his time with the child needed to be supervised by a paternal family member. On that occasion it appears to have been the paternal grandmother. The mother spoke to the paternal grandmother, who assured her that the child would be safe under their supervision. However the father came rushing out onto the front veranda and started yelling at the mother such things as “where is my son” “you are breaking the orders” and “you will go to jail.” When the father saw the maternal grandfather, he began screaming at him “you will go to jail too” and “I will take you for everything you have.” The child was present during this incident, although the father says that he was unaware of that because he was still in the car.
On 17 May 2014 the mother sent an email to the father advising the child had a cold. Whilst the father’s initial response was dismissive, a little later again he emailed “yet again you have proven what I believe a low cunt you are by not informing me my son has been to a doctor. I will do everything I legally can to ensure you and your low cunt mother do not have any care of him. This will be added to my submissions. You have no fucking idea about how to be a responsible parent.”[10]
[10]Exhibit 12 to the mother’s trial affidavit.
Interestingly, on 19 May 2014 the father consulted his then psychologist. In a report to the father’s GP dated 23 May 2014, she said in relation to that consultation that she:
Found him to be displaying a different presentation to normal. His mood appeared to be somewhat elevated, he displayed some psyco-motor agitation, he appeared overly optimistic about his situation, there was some grandiosity in his descriptions and his thoughts which quickly went from one topic to another… His insight appeared to be poorer than previously and the soundness of his judgment appears to be questionable.
She went on to express her concerns that the father may be having a hypo-manic episode.
Against that background, on 25 May 2014 the mother dropped the child off for time with the father. Police officers then arrived and went into the father’s home. The mother in her trial affidavit[11] suggests that the father had contacted DoCS in relation to marks which he had observed on the child on previous visits. Indeed on 25 May the father asserts that he observed an unexplained black eye on the child, and emailed the mother, copied to DoCS:
Advise what the mark under my son’s left eye is from. Are you still abusing him through your corporal punishment of hitting, shaking and screaming at him. I want that behaviour to stop immediately and assurance that you have acknowledged and stopped it.
DCCDS, could you please intervene here to ensure my son’s safety.
[11]Paragraph 223.
On 2 June 2014 the father sent an email to Queensland Police, copied not only to the mother, but to a variety of other persons. One of the recipients recommended that he take legal advice. The father then responded (again copying in a large number of recipients, including the mother, into that response) in very large capital letters:
THIS IS NOT ABOUT FUCKING ACCESS!!!!!!
THIS IS ABOUT MY SON BEING EXPOSED TO ILLEGAL FIREARMS USE THAT HIS MOTHER TOLD ME ABOUT!!!!
WILL SOMEONE GET THEIR HEADS OUT OF THEIR ARSE AND SORT THIS OUT.
MY SON IS EXPOSED TO DANGER KNOWINGLY BY HIS MOTHER.
IT IS FATAL DANGER.
I AM REQUIRED BY LAW TO REPORT THIS AND NOW NOBODY WANTS TO DEAL WITH IT.
On 8 June 2014 a further argumentative episode occurred during a changeover or the child into the father’s care. On this visit the father asserts that the child attended with an unexplained deep cut to his forehead, and, seemingly when the child was going back into the mother’s care, the father began screaming at her whilst the child was in her arms saying “you should expect a call from Child Service, hey [Hancock], I will take him from you..”[12] The mother says that when her father appeared, the father started to rant at him as well. She says “[The child] clung tightly to me and seemed confused at what was happening.”
[12]Mother’s trial affidavit page 243.
At paragraphs 244 to 246 of her trial affidavit the mother reported the child’s subsequent response, which was to be withdrawn, seek comfort from the mother, asking her not to leave him and having some incontinence issues. That persisted for about a week.
The father’s avalanche of emails continued, and he even made posts in relation to the maternal family a newspaper’s Facebook page.
On 11 and 14 June 2014 the father began to send emails to the mother in which he implicitly threatened to withhold the child from returning to the mother’s care, on the basis that doing so exposed him to harm.
In light of these matters, and the father’s behaviour generally, the mother began to feel the child was no longer safe with the father, even under family supervision. On 14 June she sought confirmation from some of the father’s family that the child would be kept safe in the future and received a simple response that “[the child] will be returned at the usual time.” However the father then proceeded on that day to make a further implied threat to retain the child to protect him from harm in the mother’s care. That led the mother to advise the paternal grandmother that she would no longer continue to make the child available for visits to the father.
On 24 June 2014 the mother’s protection order was varied to include an order that the father not come within 100 metres of the mother or the maternal grandparents, and further another 22 people were added as protected by the order, including extended family members of the mother and even her lawyers.
The very next day the father filed an Application in a Case seeking to have the child move into his care and only spend supervised time with the mother, amongst a variety of orders. On 27 June he filed a Contravention Application in relation to the mother withholding the child.
Notwithstanding the father’s further efforts to have Queensland Police take greater response to the alleged firearm problems, by now their stance was to refuse to even accept further reports. Unhappy with that, the father began to widen the scope of the people with whom he was communicating, including making complaints to the Crime and Misconduct Commission and relevant Government Ministers, including the Premier. It seems likely that led to the Minister for Police referring the matter to the Queensland Fixated Threat Assessment Centre (“QFTAC”) on 1 July 2014. This led officers from that organisation to make contact with the father. In their progress notes[13] there appears as follows:
·The father reported his communications have been made out of “desperation and distress” and “no one is doing anything about it”;
·Wanted his son removed because of the firearms in the mother’s household;
·Said he was concerned it would be too late if they find his son dead;
·Reiterated his concerns in relation to the mother’s alleged physical abuse of the child;
·Firmly denied he had any thoughts or plans to harm others including himself or take the child away from his ex-wife;
·Volunteered that he has been swearing and using profanities and emails and he was not doing that to “abuse the process” but to “enrage and engage people” towards actions.
[13]Annexure 3 to father’s affidavit 29 July 2014.
The matter was then discussed with two consultant psychiatrists attached to QFTAC with a view to determine whether or not a Justice’s Examination Order should be sought for the father. Ultimately, after contact with the father’s treating psychiatrist Dr N, it was agreed that a JEO would not be initiated.
On 10 July 2014 the father then attended J Police Station. Ostensibly he was there to pick up some paperwork. He says that he was poorly treated by police on that occasion, and when expressing his concern as to his son’s plight and the maternal grandparents’ suspected firearms crimes, claims police scornfully dismissed his concerns. It is plain that he likely began to use some colourful language, and police then caused him to go outside the police station where, according to police, he continued to use profanities. They then arrested him for public nuisance. He said that after his arrest he was then assaulted by a number of officers inside the police station.[14]
[14]Father’s affidavit of 30 July 2014 at paragraphs 6-26.
On 21 July 2014 the final hearing of the mother’s Protection Order Application took place. Although the order was not in evidence, it appears as though orders in terms of the amended interim orders were extended for one year. The mother says that notwithstanding that, the father continued to “send me abusive, offensive, denigrating, harassing and bullying emails in complete disregard to me, the protection order, his bail conditions and everyone and anyone that has asked him to stop contacting me.”[15]
[15]Mother’s trial affidavit paragraph 190.
On 29 July 2014 the father was convicted of committing a public nuisance on 10 July 2014 at the J Police station.
On 19 August 2014 Judge Lapthorne made an order for the child to spend time with his father each alternate weekend from 10:00am Saturday to 4:00pm Sunday, with changeover to occur at a Contact Centre. No requirement of supervision was imposed. That order continued until it was suspended on 12 February 2015. In other words there was a period of approximately six months during which that order applied. However that change does not appear to have significantly motivated the father to better behaviour. For instance on 15 September 2014, the father was arrested yet again for breach of the Domestic Violence Order in relation to the mother, and whilst being processed by officers, threatened all police personnel. The subsequent police report is a little difficult to understand because the identity of the relevant “victim” is unclear, but it appears likely to be one of the police officers involved. The father apparently threatened some form of retaliation upon that person’s grandchildren “especially their financial future.” Later in the course of the evening the father made further contact with that particular officer and in a telephone conversation called him a “corrupt cunt.”
The following day a further incident occurred between the father and that person at a police station which resulted in the father being ejected by another officer. According to the police report the father then shouted “I’m going to take you down, get your recorder out, I am going to take everything your grandkids will ever have.” It does not appear as though the father was charged with any offence arising from that behaviour, although a police report was opened in relation to protracted stalking. The relevant report[16] seems to suggest that record was maintained for a considerable period of time, and includes references to further interactions between the father and the relevant police officer, although no charges were ever laid.
[16]2TB 128 ff.
On 26 October 2014, during a contact visit with the father, it appears as though the child ingested a large amount of swimming pool water. Upon his return to the mother, it was reported that the child was quite distressed and had a temperature, causing the mother to take him to a doctor.
By 21 November 2014 there were a number of outstanding criminal charges against the father. On that date the father’s bail conditions were varied to provide that he was not to have contact with the mother.
On 2 December 2014 the father was again arrested for even more breaches of the Protection Order. However he continued a vigorous email communication with various persons, bodies and entities, all directed towards his allegation that when the child is in the mother’s care, he was exposed to harm due to “fatal danger.” He strongly asserted that by not acting appropriately in response to his concerns, authorities were acting unlawfully. A central focus for his allegations of misconduct extended to the mother’s solicitors, who he accused of not having fulfilled their duties as legal professionals possessed of relevant knowledge, demonstrating the prospect of harm to the child. His concerns extended to making complaints to the Legal Services Commission about not only the mother’s solicitor, but also the Independent Children's Lawyer.
On 3 February 2015 the father was refused bail (it is not clear precisely what the then charge or charges were, but they likely related to a breach of the mother’s domestic violence order) and remanded in custody for a breach of his bail conditions not to have contact with the mother. Then on 11 February 2015 the psychiatric report of Dr F was filed. The following day, whilst the father was incarcerated and unable to attend at court, on application of the mother, Judge Lapthorne suspended his Honour’s previous orders allowing the father unsupervised time with the child, but granted the father liberty to provide Dr F’s report and the Family Report to his therapist. The matter was then transferred to the Family Court.
It is simply unnecessary to recite all of the subsequent litigious history that underpins this case, but suffice to say that there have been a number of appeals both in the State Courts and in the Family Court arising from orders from time to time. Further, the father has been an enthusiastic litigant in relation to other claims; for instance on 26 March 2015 he commenced a defamation claim against the mother and her parents, and he has also conducted proceedings in QCAT. Indeed I was told without contradiction, that in the last year or so, the mother has been in court in relation to some form of litigation with the father about every fortnight.
In April 2015 the child broke his arm. This occasioned the father some distress because he says that he was not told promptly about it.
On 1 May 2015 the father was convicted of five counts of breaching the DVO.
On 29 May 2015 Forrest J heard the parties’ respective interim applications and ordered that the child spend time with the father for two hours each alternate weekend at a Contact Centre. That day the father emailed the court to advise that he would not be arranging or attending contact, and indeed has stayed true to his word in that respect. He has neither seen nor communicated directly with the child since, it would seem, about February 2015. An appeal against the orders of Forrest J was dismissed.
On 15 July 2015 the father was convicted of a further two counts of breaching a Domestic Violence Order. Two days later at the same court house the father attempted to serve documents on the mother in an interview room, and in doing so, is said to have upset and distressed her.
On 29 July 2015 the father attended his treating psychiatrist. According to a letter obtained from that psychiatrist during the course of the trial[17] it was then agreed that, because there was no change to the father’s medication, and due to financial pressures, the father’s follow-up would largely be conducted by a general practitioner. Since then the father has not consulted upon Dr N, or indeed, voluntarily, any other psychiatrist.
[17]Exhibit F5.
On 25 August 2015 the mother sought to extend the Domestic Violence Order against the father. During the course of that hearing the father was charged with contempt of court by the Magistrate and although initially held in custody, was released on bail.[18] Precisely what became of that charge remains unclear.
[18]2 TB 135-6.
On 21 September 2015 the father was incarcerated, although the exact basis for him being so imprisoned is not altogether clear on the evidence. It plainly will have something to do with charges of breach of domestic violence orders, but whether it was by way of punishment upon conviction, or simply refusal of bail, is unclear. Whilst he was in custody, he appeared by video link at a further hearing in the I Magistrates Court on 18 November 2015. A Police Prosecutor was alone in the room as the Clerk of the Court had gone to get the Magistrate. It is said that at that time the father said to the prosecutor “I’m gonna fucking come after you and destroy you, I’m going to take everything from you and there is going to be nothing left for your children and grandchildren.” It is said that at this point the Clerk of the Court returned and the conversation ceased.
Ultimately it does not appear as though any charge was raised in relation to that matter, however interestingly on the following day a police assessment of the father’s conduct was undertaken in which it was noted:
[The father] was adamant that he did not threaten to harm [redacted] and further stated he has never threatened physical harm against anyone. [The father] stated he always threatens legal action to all those who he perceives as not helping to protect his son. A review of the MO in this occurrence shows there are no direct threats to cause physical harm. A review of the Intel Holdings on [the father] also indicate any threats relate to civil action rather than physical harm.
On 20 November 2015 the father was convicted of contravening a domestic violence order between 18 September 2015 and 21 September 2015, and also of using a carriage service to menace, harass or cause offence between those dates. No conviction was recorded and he was placed on probation for 12 months.
On 2 December 2015 the father was due to appear at the Brisbane Magistrates Court. He did not do so and a warrant issued for his arrest. He was subsequently arrested by police and the police notes record as follows:[19]
Upon being arrested the offender has become aggressive towards police, yelling out “fuck off” and calling police cunts. The offender has been placed into the rear of the marked police vehicle and police have begun to transport him to the watch house. The offender has continually yelled oblique abuse at police. The offender has then begun spitting on the rear screen of the police vehicle numerous times. The offender has then begun kicking the rear passenger door and window, in an attempt to kick it out. In the process of doing so the offender has damaged the left arm rest of the rear passenger door. The offender has continued to yell abuse at police until a police van arrived to continue transporting the offender to the … Watch House.
[19]2 TB 144.
In consequence he was charged with wilful damage, and resist arrest or incite, hinder or obstruct police. It seems as though those charges are yet to be heard.
On 2 January 2016 the father was involved in a motor vehicle collision. In the course of the collision the vehicle he was driving struck two parked cars, before rolling on its side. Bystanders extracted the father from the vehicle. Police attended and a breath test of the father showed a reading of .151% at 10:20pm. His licence was suspended.
The father denies that he was intoxicated but accepts that he had been drinking earlier on the day. His evidence is that he cannot recall the collision because he blacked out. It appears as though he contends that in fact police have fabricated the blood alcohol concentration reading, and intends to defend the charges. He has the view that he has become the victim of unwarranted police attention and violence. He seems to think that he is the subject of some concerted police scrutiny.
The father was taken to the X Hospital in order that a blood test could be undertaken to confirm his alcohol reading. Police records[20] show that when the father:
was being processed through emergency admissions at the … Hospital became agitated and abusive towards police whilst he detained for another matter. [The father] became more verbally abusive and proceeded to issue with threats of physical harm towards security guards employed at the hospital. This escalated which resulted in [the father] being restrained by security and being arrested. [The father] has then spat at a police officer [redacted]. [The father] has then further restrained to prevent the continuation of the assault.
[20]2 TB 155.
Hospital records note something similar.[21] Interesting those notes also record the treatment plan was to “await wakefulness and sobriety” and “ideally would like to see him eat and walk before discharging although I anticipate that once he is sober it will not be possible to force him to do anything.”
[21]2 TB 58.
Perhaps in consequence of no longer having a licence or a motor vehicle, the father then changed general medical practitioners. The notes of his first consultation with his new general practitioner on 9 January 2015 were in evidence.[22] They read relevantly:
Have mental problems, depression, anxiety and OCD.
Had separated from wife, had a 4 year yr old son, and moved to her parents’ home, he worried because they have firearm (sic).
But said have a lot of fear, have to go to jail, had DVO on him, and on 3/1/ had a MVA on alcohol intoxication, and he kicked the police car door.
Said his health, can’t handle anymore, but don’t want to kill himself.
[22]Exhibit F1.
On 3 February 2016 that medical practitioner provided a medical certificate to Centrelink, in which he described the father’s symptoms as “anxiety – moods and attacks, OCD, depression with suicidal thoughts, had alcohol in excessive (sic)” and provided a prognosis that the symptoms are “likely to persist.”[23]
[23]Exhibit F1
During this period the father was regularly corresponding with both the mother’s lawyers and the Independent Children's Lawyer, making various threats in relation to professional discipline and common law actions against them. For instance the father has served the relevant statutory notice required as a prelude to commencing civil proceedings against the mother’s solicitors. He was also making some inflammatory comments to the Associate to Justice Forest, although it is unlikely that they were ever brought to his Honour’s attention.
On 28 April 2016 the father sent an email to a large number of recipients including employees of this court, employees of Queensland Crown Law and the Department of Communities and the Ombudsman. The subject for the email selected by the father was “This is why. Dickheads.” Having initially referred to an alleged conversation with a police officer who advised him (according to the father) that the maternal grandparents “do in fact have unsecured firearms and ammunition” he continued:
And am I supposed to sit by when the Commonwealth, Family Court, Queensland’s Courts, Queensland Police, Premier, AG and Police Minister, as well as other politicians, the Catholic Church and Child Safety Services know that [the child] has been and to the best of my knowledge still can, access unsecured guns and ammunition.
And if I try to get it fixed I get bashed and brutalised by QLD Police and punished for instigating for my little boy’s life’s safety and welfare.
Please if any one can help protect my son from the fatal danger he is in please help us. Does any one know how to make this post go viral, if so please do it, I am distraught and although I am safe and secure I am not sure I can cope much longer.
…
Attached to the email was a link to a news site with a story with a headline “US toddler shoots mother dead from backseat of car.”
On 18 May 2016 the father commenced attending counselling at the MM Organisation (“MM”). He was referred to that organisation by Corrective Services, presumably as part of his parole. The case notes of his initial consultation[24] records that he presented with “mood and effect, edgy, could not make eye contact, fidgety, obvious discomfort, delusional and suicidal ideations.”
[24]Exhibit ICL 2.
Later the MM notes record that the father “exhibits paranoid delusional behaviour, example being keeping a list of people expected to act favourably upon his information, if information is not acted upon, he expects to instigate legal proceedings against said people and organisations.”
It was noted that the course of action was “referral to a psychiatrist as a priority as issues appears more in relation to mental health.”
On 20 May 2016 the father attended the registry of the Magistrates Court in Brisbane. It appears as though he was unhappy that the Chief Magistrate had not responded to email correspondence that the father had sent to him. The Police Occurrence Report[25] notes that when the father attended the registry:
At the time there was approximately five to ten clients at the Registrar (sic). Whilst discussing the matter with a staff member that [the father] has become agitated and began swearing and making verbal threats. During this [the father] spoke with a raised voice and said things like ? I get treated like a cunt ?, ? fucken Magistrate ? and ? fucken Registrar ?...
[25]2 TB 165-167.
In addition to the five to ten clients, there apparently there were numerous staff who could witness the father’s tirade. In consequence of his behaviour the father was charged with public nuisance, and it appears as though that matter remains unresolved. Unusually, the father says that he deliberately orchestrated his arrest, so that he would be charged with offences relating to his conduct in the Registry. He says he did so because he believes that his defence of the charges will entitle him access to some sort of recording of a conversation between him and a police officer (Sergeant O) on another occasion, in which the father claims that the officer admitted that the reason that the maternal grandparents have not been charged with firearms offences was some kind of a police error. The father has previously sought, but been denied, that recording. He sees the recording as a piece of critical evidence, and so, he says, he formulated his plan to be arrested, so as to force the production of the recording.
Whilst the father was in custody (it seems) he was assessed again by a QFTAC psychiatrist, Dr P. Notes of her assessment were in evidence.[26] Relevant extracts include:
[The father] appeared angry and somewhat dishevelled, and immediately demanded to know why we were there. This was a calmer presentation than the last assessment at … Watch House. He remained thoroughly preoccupied with the issues relating to the safety of four yo son [C]. He indicated that if police could properly reassure him that there are no longer unsafely stored guns at his ex-inlaws’ property might see this as a resolution, but then indicated that this would not suffice because they needed to be prosecuted for lying about it in the first case. Also, he admitted that he could not trust the reassurances of the police or his in-laws.
…
.. He could acknowledge that he had suffered substantial loss as a result of his quest, including employment, reputation, finances and his mental well-being, but again blamed everyone else for his situation, including us.
…
.. While he remained obsessed with his notion of injustice he indicated he would continue to seek a resolution through the court system not through any less legitimate channels. He conveyed supreme confidence that he would succeed. He portrayed his ex-wife as a terrible and abusive mother despite the lack of evidence, but did not dispute that perhaps at present she was the lessor of two evils. He then retreated to his mantra that he, essentially, is the victim and that it is everyone else’s fault that he is in this predicament…
[26]ibid.
Dr P’s opinion and recommendations were as follows:
This man is pathologically fixated on a cause. His narcissistic and obsessional personality has predisposed him to this, although there was again no clear evidence today of delusional thinking, he is at risk of developing persecutory delusions as he becomes more and more fixated, more socially isolated (removing corrective influences), more self-referential, more convinced of the significance of his quest and increasingly certain of the malevolence of all opposition. When options dissipate he poses a risk of suicide, or violent actions towards others in the context of suicide.
He requires in the first instance supportive, cognitive based counselling to address his unrealistic expectations, to assist him to accept greater responsibilities for his psycho-social decline and to improve his insight into his self-defeating patterns…
At present, management will predominantly entail behavioural controls through consistent enforcement of illegal sanctions.
…
On 7 June 2016 the father had his second session at MM. His presentation was as before, and relevant observations were made in the notes as follows:
…
.. [The father’s] narcissistic tendencies ensure that he is never accountable for his actions and unable to take any responsibilities for the situation.
.. Is not getting what he wants, so he is constantly feeding his delusions and conspiracy theories, leading him to break the conditions of his bail, escalating his problems further with the police and Family Court.
.. In denial about the effects of his actions. Unable to broaden his view point to accept that the situation may benefit from compromise. Actions are leading to depression and a cycle of anger and frustration, leading to a sense of self-trichinous, an unwavering belief that his side of the story will be validated and that he can move on. Very much stuck in a state of not wanting change. Appears to gain “enjoyment” from being the victim.
The father attended MM again on 21 June 2016. His presentation was as before. Notes relating to his presenting problems read “still fixated on primary issue, somewhat delusional about factors contributing to issue. Still attempting to gain support for his opinions. Tried a different approach to this session attempted garner support by highlighting how bad his life has become. Who he was in the past versus who he is in the present. When questioned around accountability, client became very agitated and cut the session short. States he is now experiencing anxiety attacks, but is unable to describe triggers and effects.”
Current situation
As at the time of trial the father was not in paid employment but was commencing to operate a business providing (it seems) some sort of advice in relation to workplace issues resolution. The father has completed his law degree and Diploma of Legal Practice and is considering whether or not he will seek admission as a solicitor. It appears as though his principal source of income is Social Security benefits. He remains living in the former matrimonial home in the Northern Brisbane suburbs. Plainly a major part of his daily activity revolves around not only this litigation, but the many other related cases and appeals which he has on foot. As I have already noted, he has not seen the child or communicated with him since about February 2015.
The mother no longer resides with her parents, but has kept her current address withheld because of her concerns in relation to the father. She has two part-time jobs which see her working for a considerable proportion of the week. The child lives with her, but is in care on occasions when her employment precludes her looking after him.
The child appears to be in good health and is otherwise unremarkable. The mother says, and was not challenged, that she has explained to the child the father’s absence from his life on the basis that the father is away, but that he loves the child very much. There is a photograph of the father (and the mother and the child) on his graduation day on the child’s bedroom wall.
For the sake of completeness I should indicate that on the last day of trial, during the course of the father’s oral submissions, he began to appear to be suffering chest pain. When I questioned him about that, he indicated that he believed that it was indigestion, and denied that he was suffering a heart attack. I was troubled about the latter because on occasion, in an effort to alleviate his pain, the father would place both his hands over his sternum and press.
Although not strictly speaking in evidence, it is likely uncontroversial that in fact after the trial had finished and court adjourned with the decision reserved, the father requested court staff to call an ambulance, and was subsequently admitted to hospital, having apparently suffered cardiac arrest in the ambulance en route. He then underwent heart surgery.
It is appropriate however that I record that during the course of trial the father retained a calm demeanour, and although he raised his voice a little and became somewhat animated during the course of some cross-examinations by him, did not present any of the behaviours which have apparently been displayed during the course of his involvement with authorities elsewhere.
THE ISSUES
With the assistance of the parties, during the course of the proceedings, I identified the following as the issues in the litigation:
1.What is the nature of the relationship between the child and each parent.
2.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
3.What, if any, risk does the father pose to the child, and what means is there to mitigate it.
4.What, if any, risk does the mother pose to the child, and what means is there to mitigate it.
5.What would be the likely effect on the child of moving to live primarily with the father and only spending time and communicating with the mother under supervision of a Blue Card holder.
6.What would be the likely effect on the child of:
(a)not spending time or communicating with the father again save for receiving cards, gifts and letters;
(b)only spending time with the father on a strictly supervised basis at a contact centre.
7.Could the parties’ relationship and communication support equal shared parental responsibility.
Once I have discussed relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of any residual s 60CC considerations, and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[27]
[27] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore, consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[28]
[28] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach to risk assessment in Family Court proceedings, albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Rather it seems as though, to the extent that the father presents a credible risk of physical harm, that harm is likely to be him behaving violently, either in the presence of the child (if for instance he were apprehended by police whilst the child was in his care) or by the child later coming to hear of the father’s behaviour. The former might risk the child being in some way physically harmed, whereas the latter is likely to lead only to emotional harm.
There is one further matter to which I should advert, and that is the father’s recent collision. Whilst it appears as though the father was generally uninjured, if the child had been in the car there is no guarantee that he would have had a similar outcome. I am well satisfied that the father was intoxicated at the time, and well satisfied that in fact he has on occasions excessively used alcohol. Indeed it may well be habitual, although the evidence is insufficient to enable me to make that finding.
Even accepting that the magnitude of the harm, if the risk eventuated, could be high to catastrophic, nonetheless, given that I assess the father as being of low risk of in fact physically harming the child, it follows that the overall risk of physical harm which he poses to the child should not be adjudged as an unacceptable one.
Emotional/psychological harm
Turning then to the question of psychological or emotional harm, this is said to spring, albeit ultimately from the father’s OCD, more directly from the fact that that disorder causes him to obsessively ruminate in relation to matters. Those ruminations then lead to him behaving in unusual ways, reflective of a lack of insight into the way in which his condition is then manifesting itself, and perhaps more importantly, a lack of judgement on his part as to what is appropriate behaviour.
There can be no doubt that the father does have obsessive and indeed compulsive behaviours. There can be no doubt that they have historically flared up from time to time, and that even in between flare ups, the behaviours continue, albeit at less extreme levels. There can likewise be little doubt that the father has historically shown markedly poor judgment as to how he behaves both during breakdowns, and in periods between them, and although perhaps having some insight into his condition, the father is unlikely to have complete insight. I say that because even at trial the father was protesting that his condition was then well managed, when plainly his continued obsession with the firearms issues was, at least to my mind, a telling example of his obsessionality, and indeed his compulsivity.
Dr F was critical of the father’s present treatment regime, and thought that a more aggressive approach was necessary in order for it to be properly managed. Indeed he had earlier recommended that his report be made available to Dr N, in order that he could review his treatment regime with the benefit of the additional insights which the forensic assessment which Dr F had undertaken might afford him. Orders were made permitting the father to make that report available to Dr N, but he did not do so. The father rather blames the Independent Children's Lawyer for failing to have done so.
I fear that the fundamental difficulty is that the father genuinely feels that his condition is presently being well managed under his current regime. Not only was that his evidence, but it is consistent with his behaviour, in that he has not sought assistance from Dr N since July 2015. However an analysis of the father’s behaviour in the last 12 months would not support the conclusion that in fact he is managing well. He has been involved in ceaseless litigation. He has acted and communicated in extreme ways, for instance writing inflammatory emails to Government Ministers, and senior public servants and even judges. All of that culminated in his – on his evidence – deliberate strategy of having himself arrested to obtain a recording which was being denied to him. Those are not the actions of a person whose condition is well managed.
Moreover, the father appears to identify that there is some stigma associated with his mental health condition. For instance he often expressed during the trial a desire to not reveal to the child that he suffered from his condition, and expressed a disinclination to be “thrown back” into the mental health system. Perhaps it is that the father deliberately seeks to minimise his concerns about the impact of his condition on his everyday life, because he finds it demeaning to be treated as unwell. If it be the case that he has a narcissistic personality, that behaviour might be consistent with it.
Moreover whilst he has been somewhat proactive in seeking psychological assistance in 2016, it could not be said that he has done so with any real enthusiasm or diligence. Accepting that he did attend MM, it has to be acknowledged that that was in fact at the behest of Correctional Services, rather than being arranged independently by the father.
The sad fact is that the father has a plethora of extant litigation, both criminal and civil, in which he is either the moving party or the defendant. He entertains the belief that he will succeed in his several defences to the criminal proceedings, and apparently in the event that he is not successful, thinks there may be valid appeal points. He appears to use his legal training to try and creatively fashion either criminal defences or novel civil causes of action, which although not explored before me in any detail, to my mind appear to have an air of fancifulness to them.
Inevitably one of the best indicators as to the father’s likely future conduct is his past behaviour. Although he attempted to excuse his behaviour immediately post-separation on the basis that he was having a meltdown and was distressed, the reality is that his extreme behaviours have continued thereafter. One only needs to consider the number of breaches of domestic violence orders for which he has now been convicted, to realise that he had no respect for the authority of those orders, or indeed the perception of personal security of the mother. Even though he would no doubt seek to justify the breaches on the basis that they were only emails, and that they were all directed towards securing the safety of the child, the fact that he appears to think that provides some justification for his conduct is worrying in itself. Those communications have almost invariably been an extremely disproportionate response, both in terms of frequency, content and language, to the risks to the child which the father perceived.
I have little doubt that the father’s obsessive and compulsive behaviours will continue. I am quite satisfied that he will likely continue to underestimate the impact of his mental condition in the future, and will again evidence poor judgment, probably in the same manner that he has done so to date.
Unfortunately I am also well satisfied that the father does not perceive any need to change his treatment because he genuinely believes he is well managed at moment; unfortunately I do not accept that he is. However he is unlikely to feel any impetus to change the status quo unless he perceives there is a benefit in doing so. He is unlikely to independently perceive that need. It therefore follows that the prospect of him having his symptoms better managed by a more aggressive treatment regime are slight.
All of that persuades me, unfortunately, that the father’s behaviour in the future is likely to be much like it has been in the past, even accepting that it may not in the future focus as obsessively on firearms as it has to date.
The difficulty, however, is in attempting to predict how that might evidence itself as a risk of emotional harm to the child. Perhaps of necessity, Ms G’s evidence on this was somewhat general. She said that if the father’s condition was not managed properly, then the child could potentially have difficulties “across the board.” She said he might experience heightened anxiety, which could impact on his relationship with the father. It could also affect issues of his self-concept and self-worth, with an elevated risk of mood disorders. He could become distracted in the school environment and otherwise avoidant of social activity.
As to the magnitude of prospect of the risk eventuating, she said that it was quite likely if unsupervised time was to take place with the father at the present time. Over time, she said the magnitude of the risk would be determined by the child’s emotional resilience, coupled with the father’s management of his condition and the mother’s response to it. When she was asked whether there may come a point where supervision was not required, she said that children with parents with mental conditions can develop quite quickly, although by the same token, there is a risk of the reverse, namely that the child becomes anxious and unable to resolve the situation adequately.
As to what she would want to see for the future management of the father’s condition, Ms G said she would like to see ongoing skilled therapeutic support and intervention. She said that medical management was required and compliance with the treatment regime essential. She indicated that regular monitoring of the medication would be required, she thought initially fortnightly, but spanning out as the condition stabilised. She thought that it may be beneficial for the father to be in support groups with like people.
As to the variable of the mother’s family’s response, she indicated that if they were empathetic, it was a good indicator for likely success. She said that the mother needed psycho education in relation to OCD and she predicted that if the mother was well resourced, then she was in a good position to support the child to maintain a relationship with the father. On the other hand she indicated that if the mother and her family were antipathetic to the father having a relationship with the child, then that was likely to lead to greater problems.
Dr F also gave some evidence dealing with the magnitude of that risk. When asked how the father’s OCD in the future might impact upon the child, he said that history was the best indicator, and if the father’s condition had impacted on the child in the past, he would be concerned for the future. However he made it clear that he could not presently identify that he had put the child at risk, on the history that he had taken, although he acknowledged that the child had likely been exposed to the parental conflict. He further opined that in the future, the father might become preoccupied with issues relating to the child, for instance sexual behaviours, which could become distressing for the child. He identified that if the father could not contain his anger, and in consequence exposed the child to his views in relation to the risk which his mother poses to him, that could also cause harm. He said that if the father was distressed and angry, then that would likely upset the child.
However he did say that, during the parties’ relationship, there was no reason to think that the father’s OCD had impacted adversely upon the child, and he predicted therefore that if the father was well mentally, he would have no significant concern, save perhaps about the father’s conversations with the child.
I have already detailed the occasions when the father has, during the course of changeovers of the child into his care, exposed the child to his aggressive behaviours. Moreover, the father has a somewhat odd habit of writing emails to the mother, and indeed, albeit infrequently, to others, as if the recipient were the child. That does suggest that the father may, at least in his own mind, be having some species of dialogue with the child. However it is quite a long bow to then say that the father is likely to expose the child to adult conversation. Moreover, there is nothing to suggest that, either during the time that the father was seeing the child supervised by family members, or during the six months when he was seeing the child unsupervised, that he did indeed expose the child to such adverse views of the mother, or otherwise emotionally destabilise him.
The question must therefore be posed, if the father has not done it in the past, why would he do it now? The answer may be that the father’s behaviour since separation, and indeed since he has last spent time or communicated with the child, has gotten to the point where, on occasions, it has been quite extreme. For instance there are the occasions when the father has been arrested by police and in resisting that, for so far as I can determine on the evidence, for the first time, been physically violent.
The difficulty really is that Dr F’s evidence remains substantially unchallenged, that the father’s present medication regime is not sufficiently aggressive to combat his condition. Although the father did cross-examine him by reference to the fact that he is doing that which treaters’ were recommending, Dr F’s constant and unanswerable refrain was that the father had not provided his report to his therapists, in consequence of which they were in the usual difficulty for treating psychiatrists and psychologists, namely, that they were dependent solely upon the self-reported history.
Plainly the key to the mitigation of the risk which the father poses to the child is for him to have an appropriate mental health management regime. That regime needs to be based upon something more than self-report, and needs to have a holistic history of the kind that Dr F constructed, and which is in many respects far more reliable than self-report alone.
It is clear that many parents have mental health challenges, yet nonetheless manage to quite adequately parent. That was the unchallenged evidence of Ms G, but it is a matter which probably needs no evidence to be recognised. Mental health issues per se do not disqualify a parent from having a meaningful role in a child’s life; conversely, a parent’s mental health challenges do not disentitle a child from their right to have a relationship with that parent. A court should be slow, on the basis of mental health issues alone, to terminate a relationship between a child and a parent, unless the risk simply cannot be properly managed.
The plain fact here is that the risks have not been properly managed. Forrest J could scarcely have made it clearer to the father, in his reasons of 29 May 2015, that the priority for the father had to be to properly manage his mental health. For instance at paragraph 6 of his reasons[31] his Honour said:
Should the father seek out and obtain continued medical and psycho therapeutic treatment as recommended by Dr [F], it is hoped that his health might improve or be managed to such an extent that the circumstances under which his little boy spends time with him may be able to be changed. That will be further examined at the trial of this matter, whenever that might be.
[31]Harrell & Hancock-Harrell (No2) [2015] FamCA 406.
Later at [51] his Honour opined:
I am also satisfied that it is in the child’s best interests to spend time with his father on a regular ongoing basis. However, just at the moment, the evidence I have seen persuades me that the child’s time with his father should be supervised in a professional setting of a children’s Contact Centre, … until the court can be satisfied that the unacceptable risk currently posed by the father’s state of mental health no longer exists.
Sadly the father has not done that which Forrest J made it plain he needed to in order to go beyond supervised time.
I am persuaded, taking all of the above into account, that in an unsupervised setting, and until his symptoms from his OCD are able to be managed so that they are less of an issue in his day to day life, the father does present a risk of emotional harm to the child, but one which can be adequately mitigated by Contact Centre supervision. In so concluding I do not overlook the fact that up until February 2015 the father’s time with the child did, on the whole, proceed unremarkably, but since then the father’s obsessive and compulsive behaviours have continued at such a level, with such a ferocity and intensity, and now for such a lengthy period of time, that to suddenly reinsert the child into the father’s life in an unsupervised setting carries with it real and substantial risk of harm. I do not doubt that the father loves this child, but his behaviours are very concerning. I am sure that the father would do what he thinks best to protect the child, but unfortunately he lacks insight, and more importantly in this respect, judgment.
However, as Forrest J nearly 18 months made clear, this situation is not static. If the father were to do that which Dr F recommends, namely to provide a more holistic history to his therapist, in consequence of which his symptoms are able to be more closely contained, then the risk which he poses to the child may not be one which needs to be mitigated by supervision. However unfortunately for the father, at present it is of that magnitude.
It is not particularly helpful in this case to describe the risk as unacceptable or otherwise. Really it is a question of gauging the risk and moulding suitable mitigating conditions. However if required of me, I would be prepared to conclude that indeed, in an unsupervised setting, the father presently does pose an unacceptable risk of emotional harm to the child, but one which can be rendered acceptable by supervision.
RISK POSED BY MOTHER
Overview
The father contended that the mother posed two species of risk to the child; the first was a direct safety issue by virtue of the exposure of the child to firearms. The second was a risk of harm from child abuse. The mother and Independent Children's Lawyer denied that she posed a risk in either respect.
Firearms
I have already observed that during the course of the trial, the firearms issue seemed to, if not wholly, then at least substantially, abate. It was not until the father realised that one of the documents with which he had been supplied in relation to the weapons disposal, namely a Notice to Acquire, was in fact provided by the purchaser of the relevant firearms, rather than the mother’s family as vendors, that he said “the penny dropped.” By this he meant that he now for the first time understood that the absence of a date on the document was not some conspiracy on the part of the mother’s family to mislead him, or evidence that in fact the weapons had not been transferred by them. Rather, based upon the fact he thought the grandparents had authored the document, he had mistakenly formed that view. That said, he continued to blame the maternal family for not having pointed out that error to him previously, and was highly critical of the fact that they had never responded to his allegations in relation to the firearms at all.
It might be that this was an epiphany for the father, and that he now genuinely has abandoned any view that the maternal grandparents have retained any firearms. History would tend to suggest that this has been such a preoccupation for the father over such a period of time, that he may not in fact be able to let the notion go, but one can only hope. However what is now plain is that indeed the maternal grandparents have sold the operable firearms which they previously had in their possession, and have put into storage the three weapons which were inoperable in any event. There is no suggestion that they have retained any ammunition, nor indeed would there be any reason for them to.
There is no reason to think that, when the child is in the mother’s care, he is exposed to any risk of harm from firearms.
Child abuse
The father alleges that the mother presents a risk of harm of child abuse to the child. He bases this upon his recollection of allegedly abusive behaviours by her during the course of the relationship. Their aetiology is curious. The father made no such allegation during the course of the relationship, nor did he ever have an argument with the mother in relation to her disciplining of the child. Rather he says that it only became apparent to him that the impugned behaviours were in fact child abuse when he sought to have family dispute resolution prior to the commencement to these proceedings, and was told it was inappropriate because of the child abuse. I have to say that I find that story quite difficult to follow.
The father’s allegations extend to the mother shaking the child, screaming at him, and loudly banging objects close to the child so as to, in effect, frighten him to obedience.
The mother denies she so conducted herself. None of her family members identified any memory of her having done so in their presence. Given that she has, until recently, for some years been living with the maternal grandparents, they have had ample opportunity to observe any such behaviours by her.
On the other hand the mother was able to describe the techniques of discipline which she brings to bear upon the child, and these were substantially supported by her parents in their oral evidence.
Other than the father’s notifications – which have gone nowhere – the mother has had no involvement of DoCS in relation to her disciplining of the child.
I am not persuaded that in fact the mother acted as alleged by the father; it is a serious allegation and I would need to be appropriately persuaded. I am not. Moreover even if one or more of the historical episodes have some factual foundation, I would not prepared to find that the mother presently poses an unacceptable risk of harm to the child. In all respects the child appears to be growing in a healthy and developmentally normal way, and there is nothing to suggest that she is presently inappropriately disciplining the child or otherwise poses a risk of child abuse to him.
Conclusion
I am not satisfied that the mother poses an unacceptable risk of harm to the child of any kind.
EFFECT ON CHILD OF FATHER’S PROPOSED ORDERS
The father seeks orders that the child live with him, and albeit that perhaps his primary position relaxed during the course of submissions, certainly as outlined in his application, sought that initially the child only spend time and communicate with the mother under the supervision of a Blue Card holder.
Ms G gave evidence as to the likely effect on the child of moving to that regime. She said that the child was accustomed to living with the mother and, for all intents and purposes, the child has gone to the mother for his needs to be met. If the child were to be deprived of time with the mother, she opined that he would suffer substantial grief and loss. Even if the time with the mother was supervised, her evidence was that the effect on the child would be dramatic. His primary attachment relationship with the mother would be disrupted, and moreover, the father would now be unfamiliar with the child. She said that that can create uncertainty for the child and impacts upon their capacity to sleep and eat adequately.
When asked as to the likelihood of this risk eventuating, she said that it would be “approaching certainty.”
When asked how these matters might play out in later life, she said that children exposed to that sort of dramatic trauma can struggle with their own mental health. They may develop trust issues and relationship problems with partners, parents and family members. The child could construe the absence of the mother as a rejection of him by her, in which case again the long term impacts on the child could be dramatic. It could affect his academic performance, and again impact upon his capacity to build relationships and trust. The child would have a greater risk of suffering from anxiety and fear and a sense of lack of control. That in turn can manifest itself in a sense of a desire, or need, to control.
As to these outcomes, she assessed the probability of them as quite likely, but it would depend on the skills of the parent with whom the child is living. She had strong concerns that in fact the father did not have the necessary skills to properly deal with the child’s outcomes.
I accept her evidence in its entirety. I am satisfied that the likely effect of the child moving to live primarily with the father, and only spending time and communicating with the mother under a supervised regime, would be dramatic and likely to effect long standing emotional harm, extending well into his adult life. It may be permanent and considerable.
EFFECT ON CHILD OF MOTHER’S AND INDEPENDENT CHILDREN'S LAWYER’S PROPOSED ORDERS
Effect of no time or communication
Again Ms G’s unchallenged evidence was that the child’s capacity to cope a regime whereby he neither saw nor communicated with the father, would depend on how well it was managed. She said that if the mother was able to reassure the child, then that would be a good start. However she said that the child is still likely to have unanswered questions (for example, who am I?) and will at times miss having a father (for example on Father’s Day, at Christmas or on a day when children at his school are invited to bring their fathers to school). She said that can create anxiety, even if the child is seemingly well supported.
On the other hand if the child was not well supported, she opined that there was a risk to his self-esteem and sense of self-worth. That in later life can play out in difficulty in forming trusting relationships, propensity to anger, and problems at school, including peer group issues.
As to the probability of harm, she assessed it as quite high. She said the probability reduces proportionate to the level of support that the child has access to. However even if there were optimal support provided by the mother, she said that in her view children flourish best when they have access to both parents, and that is the optimal level of support. However she conceded that it could be managed to an adequate, but less than optimal, level.
I am satisfied that the likely effect on the child of the mother’s proposed regime risks long term emotional effects on the child, and the probability of that is quite high.
Long term strict supervision
Again Ms G was asked as to the effects of the Independent Children's Lawyer’s proposals on the child. She said that on an emotional level, it is better if the child has some information derived by direct experience of both parents. She says that if that direct contact is absent, then the unknown itself can either cause the child to think that they are rejected and not valued by the parent, or alternatively to idealise and fantasise about the absent parent, which can in due course lead to other problems. She described it as the dichotomy between fantasising or demonising.
She was also asked about the risks to the child in the event that an order for supervised time was made, but the father did not take it up. She said that the same risks applied, and were perhaps worse, if the father in fact actually rejected the child.
I accept her evidence. I am satisfied that there would be benefits to the child of seeing the father on a strictly supervised basis, even on a long-term basis, and I am unable to identify any risks to the child of so doing. Even if there are risks, I am well satisfied that they are outweighed by the benefits which the child would have from an actual experience of his father.
COULD THE PARTIES’ RELATIONSHIP SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
The mother is justifiably scared of the father. From the moment that they separated he has behaved appallingly to her. Her initial post-separation experience of him was a tirade of obsessive, threatening and personally denigrating emails. That continued despite her protests, and despite domestic violence orders being made. It continued despite the father being charged with numerous breaches of the domestic violence orders. He has litigated against her family and her friends, and has involved them in many aspects of the dispute between the parties. I fully accept that the mother has seen it as an unremitting, terrifying, personalised and overwhelming threat to her security. It matters not that the father has never physically threatened her, or that he has never in fact physically assaulted her. The father’s conduct is nonetheless terrifying domestic violence.
Further, the father has, at every turn when he thought it tactically convenient to do so, sought to involve police and DoCS in the case.
Unsurprisingly therefore the mother says that she is terrified of any communication whatsoever with the father in the future.
I had the opportunity to observe the father cross-examining the mother directly in the witness box. During that cross-examination I did not form the view that the mother was incapable of standing up to the father, but I formed the view that the chances of them ever being able to agree on anything were very slim in the extreme. The father presented as an animated, somewhat loud spoken person, attempting to force the mother to his view. For her part, the mother presented not dissimilarly. Accepting that both of them were trying to give me the best impression that they could of their respective selves, one could only have concerns about how they may otherwise conduct themselves in a less formal environment.
There is no reason to think that these parties would possibly be able to exercise any form of communication sufficient to discharge their obligations that would flow from an order for equal shared parental responsibility. It would be unworkable mayhem.
SECTION 60CC FACTORS
It will be appreciated that in discussing the issues I have already traversed both of the primary considerations, and many of the additional considerations. Nonetheless I make the following further observations.
The child is too young to express any views.
The child has good relations with his maternal grandparents, but has not seen the paternal grandmother for some time. It appears as though she has a terminal illness, and has resigned herself to not re-establishing a relationship with the child.
The father has failed to spend time or communicate with the child as provided for under the orders of Forrest J made 29 May 2015. His explanation is that at such contact, he would become overwhelmed by sadness, which would not be good for the child, and further, that the child would be curious as to why he was seeing the father in a different location other than the home that he has normally seen him in.
That only goes so far. It is plain that the child enjoys the Contact Centre and there is no reason to think that the child would not be able to maintain a reasonable relationship with the father at such a venue. I am not satisfied that the father could not, with sufficient support, assistance and discipline, maintain appropriate composure to interact with the child. I am not satisfied that the father’s reasons for not spending time with the child under the orders of Forest J are adequate.
There was no allegation that the father has failed to maintain the child within the limits of his income.
The parents live sufficiently close to each other that there is no practical difficulty or expense to maintaining the child’s relationship with both parents.
The father’s OCD necessarily casts some doubt upon his capacity to provide for the emotional needs of the child.
Obviously many family violence orders have applied, and have been regularly breached by the father, albeit not of particularly recent time.
Plainly it would be preferable to make orders that would be least likely to lead to the institution of further proceedings, given the plethora of litigation to date.
PARENTAL RESPONSIBILITY
The parties’ communication could not possibly support equal shared parental responsibility. In any event, the presumption does not apply as each party asserts that the other was physically violent during the course of the relationship, and hence there are reasonable grounds to believe that there was family violence. Even if the presumption did apply, the absence of any reasonable prospect for the parties being able to communicate, and hence discharge their obligations under s 65DAC, means that I am well satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Parental responsibility must be given to one parent solely, and it should be to the parent with whom the child primarily resides.
WITH WHOM SHOULD THE CHILD LIVE
At present, the father’s inadequate management of the symptoms associated with his mental health means that the only adequately safe way in which he should spend time with the child is strictly supervised at a Contact Centre. That carries with it the inevitable consequence that the child must primarily live with the mother. However the following points also strongly support that conclusion:
·The child has been living with his mother for all of his life;
·The child has, post-separation, only spent limited time with the father, and has not seen him now for over 18 months.
I am comfortably satisfied that the order that is in the child’s best interests is that he live with the mother.
TIME AND COMMUNICATION WITH FATHER
In reality this was the nub of the case. The mother contends, by her primary position, that the father should neither spend time nor communicate with the child ever again until he is an adult. For his part, whilst primarily asserting that the child should solely live with him, the father’s alternative position started with the proposition that it should “at least” be the unsupervised overnight weekend time established pursuant to the orders of Judge Lapthorne, with a view to the child ultimately spending equal time with both parents.
For her part the Independent Children's Lawyer sought that the father be permitted to spend time and communicate with the child, but initially on a strictly supervised basis, and thereafter on a less strictly supervised basis. Ultimately if the father were able to satisfy the court that it was in the child’s best interests, she did not oppose that the father have liberty to apply for the requirement of supervision to be lifted.
The following points tell in favour of the mother’s proposition, or tell against the others:
·The child has not in fact spent time or communicated with the father since February 2015;
·I have found that the risk the father poses to the child at present can only be adequately mitigated by supervision, and that may never change. The Full Court has said there must be cogent reasons for indefinite supervision orders;[32]
·The father has perpetrated serious protracted domestic violence upon the mother post-separation, and has breached domestic violence orders designed to protect her and others on many occasions;
·The father may never take up the opportunity of supervised time, in which case the child may feel worse rejection than if an order for supervised time was never made.
[32]Moose & Moose (2008) FLC 93-375; Slater & Light (2013) 48 FamLR 573, and most recently in Gorman & Huffman [2016] FamCAFC 174 at [259] per Murphy J at [290]-[304].
On the other hand the following points support the orders contended for by the Independent Children's Lawyer, or do not support the other propositions:
·The child does have a meaningful relationship with the father and would benefit from it if it were to continue;
·If the father is able to more effectively manage the symptoms of his OCD, then the risks which he presently poses to the child may be sufficiently mitigated to consider unsupervised time in the future, which were that to occur, would be of significant benefit to the child, and in all likelihood, probably the father too;
·Even if the father never moves beyond supervised time, at least the child will have some first hand experience of the father;
·The structure of the orders may provide some incentive to the father to finally properly deal with his mental health issues.
Turning finally to the father’s proposed orders, the following is in favour of them, or contrary to the other parties’ positions:
·Unsupervised regular face-to-face time is undoubtedly the best means for the child to experience the father and derive the optimal benefit from the relationship, provided that it is experienced in a safe way.
Weighing all those factors in the balance points strongly in favour of the position contended for by the Independent Children's Lawyer. Particularly it gives the child the opportunity to maintain some relationship with the father, even if it be long-term under strictly supervised environment, which I acknowledge would be less than optimal, but better than no contact at all. Further, it leaves the opportunity open for the father to demonstrate that it is safe to move to less strict supervision, or indeed no supervision at all, which would plainly be the ideal outcome for this child, if the father’s management of his OCD permits that to safely occur.
I acknowledge that this means that the litigation may not be at an end, and that the father has been a far too enthusiastic litigant to date. However he should not be shut out of the opportunity to litigate further if indeed the preconditions necessary for him to establish the right to seek to exercise the liberty to apply can be demonstrated by him.
OTHER ORDERS
Otherwise I am satisfied that the additional orders sought by the Independent Children's Lawyer are in the child’s best interests and will make them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding two hundred & forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 September 2016.
Associate:
Date: 29 September 2016
Key Legal Topics
Areas of Law
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Family Law
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