Heine and Heine
[2014] FCCA 932
•8 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEINE & HEINE | [2014] FCCA 932 |
| Catchwords: FAMILY LAW – Parenting – Children aged 10, 8 and 5 years – impact of Father’s mental health and personality issues on Father’s capacity to parent – indefinite period of supervised time ordered with the Father. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Champness & Hanson [2009] FamCAFC 96 H v W (1995) FLC 92-598 Moose & Moose [2008] FamCAFC 108 Malburon & Waldlow [2013] FamCAFC 191 R and R: Children’s Wishes (2000) FLC 93-000 RG & JR [2006] FamCA 293 Slater & Light [2013] FamCAFC 4 Taylor & Barker [2007] FamCA 1246 |
| Applicant: | MS HEINE |
| Respondent: | MR HEINE |
| File Number: | SYC 6455 of 2012 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 10, 11 and 12 February 2014 |
| Date of Last Submission: | 12 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Levy |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr R. Bell |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer Solicitors for the Independent Children’s Lawyer | Willis & Bowring Solicitors Ms G. Eldershaw Legal Aid Commission NSW |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The Children [X] born [in] 2003, [Y] born [in] 2005 and [Z] born [in] 2008 live with the Mother.
Except as otherwise provided, the Children spend supervised time with the Father for two hours every three weeks at Interrelate Contact Centre in [C].
The Children spend time with the Father on or within 7 days of the following special days in accordance with Order (3):
(a)each Child’s birthday;
(b)the Father’s birthday;
(c)Father’s Day;
(d)Christmas Day;
(e)Easter Day.
on condition that the Interrelate Contact Centre can accommodate any such additional time or the Father complies with Orders (6) and (7).
In the event that the Interrelate Contact Centre at [C] is unavailable for any reason to supervise the Children’s time with the Father in accordance with Order (3), or the Mother agrees to the time occurring outside the Contact Centre, the Children’s time in accordance with Order (3) shall be supervised by [P], an alternative supervising agency nominated by the Mother, or by a private supervisor nominated by the Mother.
In the event that the Interrelate Contact Centre at [C] is unavailable for any reason to supervise the Children’s time with the Father in accordance with Order (4), or the Mother agrees to the time occurring outside the Contact Centre, the Children’s time in accordance with Order (4) shall be supervised by [P], or by an alternative supervising agency nominated by the Mother, or by a private supervisor nominated by the Mother.
All fees payable to Interrelate Contact Centre, [P], an alternative supervising agency or a private supervisor be met by the Father provided that any fees charged by a private adult supervisor do not exceed the fees payable to [P] or an alternative supervising agency for the same period.
For the purpose of implementing the Children’s time with the Father outside the Interrelate Contact Centre:
(a)Each party, within 14 days of the date of these Orders, contact [P] to arrange an assessment for supervised contact between the Children and the Father;
(b)Each party attend any intake assessment procedure required by [P];
(c)Each party comply with all reasonable rules of [P] and directions or requests of its staff in relation to all aspects of the engagement of the service, including the intake assessment and ongoing contact;
(d)The Father meet the costs of any intake assessment and report writing;
(e)In the event that the Mother, at any time, nominates an alternative supervision agency to supervise the Children’s time with the Father, the Mother notify the Father in writing of the name and contact details of that alternative Agency, and the parties within 14 days of the Mother’s notification, arrange an assessment for supervised contact between the Children and the Father and the provisions of (b) – (d) of this Order apply in the same way as those Orders apply to time supervised by [P].
For the purpose of assisting the intake assessment for [P] or any other supervising Agency nominated by the Mother in accordance with these Orders, the Mother be at liberty to provide to the Director of the Agency:
(a)A copy of the expert report prepared by Dr R in these proceedings dated 28 March 2013; and
(b)A sealed copy of these Orders.
The Father comply at all times with the reasonable directions of all supervisors engaged to supervise the Children’s time with him.
Unless impracticable, the Children communicate with the Father by Skype or by other audio-visual electronic means as follows:
(a)On Wednesday each week between 6.00p.m. and 6.30p.m. unless an alternative night is agreed, such that the communication occurs on one occasion each week when the Mother will initiate the call;
(b)The duration of the call shall not exceed 15 minutes and shall be on loud speaker;
(c)The Mother be at liberty to be present during the call; and
(d)For the purpose of this order, the Father provide the Mother with his Skype address within 3 days.
If communication by audio-visual electronic means is impracticable, the Children communicate with the Father by telephone in accordance with Order (11) when the Mother will initiate the call.
The Father be restrained from:
(a)Whispering to the Children, or any of them;
(b)Making plans with the Children for activities outside the Children’s times with the Father pursuant to these Orders;
(c)Discussing adult issues in the presence or hearing of any of the Children;
(d)Preventing the supervisor from listening to his conversations with any of the Children.
The Mother be at liberty to suspend the Children’s face to face time and telephone communication with the Father on one occasion in each calendar year including on one occasion in the 2014 calendar year, on condition that the Mother gives the Father and the Interrelate Contact Centre/supervising agency/supervisor not less than 28 days’ written notice of the date of suspension.
In the event the Father wishes to give the Children, or any of them, any written material including but not limited to cards, letters, emails and the like, the following conditions will apply:
(a)The material shall first be provided to the Mother and the Mother be at liberty to withhold, excise and/or redact any part of the written material that she does not believe to be appropriate for the Children;
(b)The Mother provide the Father with a current postal address for the Children and advise the Father within 7 days of any change of that address; and
(c)The Father be restricted to forwarding such materials on no more than one occasion each week.
The Father be restrained from attending at or being in the vicinity of:
(a)Any school at which the Children attend from time to time attend;
(b)Any medical facility at which the Children or any of them attend to undergo a medical procedure, test and/or examination;
(c)Any location at which the Children’s extra-curricular activities occur, including but not limited to, gymnastics, band practice/performances, award ceremonies, excursions, camps, school sport (whether conducted on the school grounds or at an offsite location);
unless otherwise expressly agreed to in writing by the Mother prior to such event.
The Father be restrained from:
(a)Contacting or attempting to contact the Children or any of them by any direct or indirect means save and except as provided for in these Orders;
(b)Entering the boundaries of the property at which the Mother and the Children live at any time;
(c)Denigrating the Mother or any member of the Mother’s family in the presence or hearing of the Children or any of them;
(d)Discussing adult issues with the Children, or any of them, including but not limited to the Court proceedings and/or child support matters.
The Mother have sole parental responsibility for making major long term and day to day decisions in respect of the Children.
The Mother advise the Father in writing of any major long term decision regarding schooling or major medical treatment made by her within 7 days of the making of that decision.
Pursuant to s.65Y(2)(b) of the Family Law Act 1975, the Mother be authorised to travel with the Children (or any of them) outside the Commonwealth of Australia, or to give her consent for the Children (or any of them) to travel, without the Father’s consent.
The Children are permitted to travel internationally with the Mother, or with the Mother’s consent, as provided for by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Mother is permitted to apply for the issue and renewal of an Australian passport for any of the Children under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005, without the Father’s consent.
The Mother provide a sealed copy of these Orders to the Principal of any school attended by any of the Children, and to the Director of Interrelate Contact Centre at [C].
The Mother be at liberty to provide a copy of Dr R’s report, and/or a copy of these Orders and Reasons for Judgment to her own counsellor or any counsellor engaged for any of the Children.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Heine & Heine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6455 of 2012
| MS HEINE |
Applicant
And
| MR HEINE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a complex parenting case involving the parties’ three children, [X] aged 10 years, [Y] aged 8 years and [Z] aged 5 years.
After a 12 year marriage, the parties separated in October 2011 when the Mother moved with the Children from the former matrimonial home to her parents' home while the Father was an in-patient at [S] Hospital.
The central issue in this case concerns the Father’s capacity to parent.
The parties and the Independent Children's Lawyer were represented by counsel at the hearing. Mr John Levy appeared for the Mother, Mr Richard Bell for the Father, and Ms Gillian Eldershaw for the Independent Children’s Lawyer.
Background facts
The parties were married on [date omitted] 1999 and separated on 14 October 2011. Their divorce was made final on 5 May 2013. [X] was born on [omitted] 2003, [Y] on [omitted] 2005 and [Z] on [omitted] 2008.
Neither party has any other children and neither has re-partnered since separation.
The Mother, aged 38 years, lives with the Children and her parents at her parents’ large home in [suburb omitted] (in a separate fully equipped area). She says she is able to stay there long term. She works casually as a [omitted], although, as the result of no casual work being offered to her this [time period omitted], is presently financially dependent on Centrelink payments and child support from the Father. According to the current Child Support Assessment dated 1 September 2013, the Mother has an annual taxable income of almost $51,000.[1]
[1] Annexure U to Mother’s affidavit sworn on 23 January 2014
The Father, aged 45 years, lives alone in rented 3 bedroom accommodation in [suburb omitted]. The former matrimonial home has been sold. The Father has been employed by [Q] for 28 years. He is a [occupation omitted], currently working 12 hour shifts, 4 days on, 4 days off (2 days on night shift followed by 2 days on day shift), sometimes including weekends. He has requested a transfer to a 9-5 position, 5 days a week, from Easter 2014, though says he cannot guarantee this change will be approved. The current Child Support Assessment identifies the Father’s annual taxable income at $161,000 as at 1 September 2013.[2]
[2] Ibid
Children’s arrangements since separation
After separation in October 2011, the Mother facilitated [X] and [Y] spending 2 nights in every 8 nights with the Father, and [Z] spending regular day time with him until January 2012, when she also joined her brothers for overnight time. Due to changes in the Father’s work roster, the Children’s time with him was reduced to 1 night in 8 in May/June 2012 with the Father’s consent. The Children also spent time with the Father in the April and July school holidays 2012. In cross-examination, the Father acknowledges that after separation the Children were spending as much time with him as he could manage, given his work commitments.
Since the Mother’s Application was first before the Court on 5 December 2012, the Children’s time with the Father has been restricted to day time only, under supervision. On 5 December 2012, the Court ordered the parties to complete the intake procedures at the Interrelate Contact Centre at [C]. From December 2012 until June 2013 the supervised time usually occurred weekly. From June 2013, the supervised time usually occurred fortnightly. The Father delayed completing the intake process at the Contact Centre until April/May 2013. As a result, and given the delay in a place becoming available until November 2013, the Children’s time with the Father was supervised by adults privately arranged. Since then, the Children have spent 2 hours each alternate Saturday with the Father under the supervision of Interrelate Contact Centre in [C].
Dr R, Child and Family Psychiatrist, prepared an expert report for the Court in early 2013, released approximately 12 months before hearing.[3]
[3] Exhibit 1
Brief litigation history
The Mother initiated these proceedings in October 2012. On the first return date, 5 December 2012, Dr R was appointed to prepare a report. The Father was unrepresented and was assisted by the Duty Solicitor. Interim orders were made by consent providing for the Children to live with the Mother and to spend two hours each week with the Father, under the supervision of a number of alternative privately arranged supervisors, with flexibility as to precise time and location. The orders also provided for the Children to communicate with the Father twice a week by phone. The orders permitted the Mother to facilitate the Children's attendance on their counsellor, Mr F, and/or a counsellor from an organisation known as Children of Parents with a Mental Illness (COPMI). The Mother was permitted to communicate with the Father's General Practitioner, Dr D. The orders provided for the Father to consult his then treating psychiatrist, Dr M, and restrained the Father from entering the Mother's property, from denigrating the Mother or from consuming alcohol. The Court noted the Father’s advice to the Court that he had been given the choice by his treating doctor as to whether to take medication, and he had decided not to do so. The Father also told the Court that he would not take medication, even if it was against medical advice.
On 17 April 2013, Dr R's expert report, dated 28 March 2013, was released to the parties' legal representatives. On 22 April 2013, the report was released to the parties themselves and the Father was specifically ordered to complete the intake procedures at the Interrelate Contact Centre at [C]. The Court ordered the appointment of an Independent Children's Lawyer.
On 14 June 2013, further interim orders were made providing for the Children to spend 2 hours each alternate week with the Father at the Interrelate Contact Centre in [C], and until a place became available, under the supervision of one of a number of privately arranged supervisors. As a result of the contents of Dr R's report, the supervisor was required to suspend time if the Father whispered to the Children, failed to remain within hearing distance of the supervisor, discussed the proceedings with them, made plans with the Children for time outside the specified contact periods or discussed adult issues in the presence or hearing of the Children. The orders provided for the Children to have weekly telephone communication with the Father for up to 15 minutes, but restrained the Father from contact at other times. The Father was permitted to attend events involving the Children but was restricted to brief communication with the Children at the conclusion of any such event. The orders provided for the Father to give the Independent Children’s Lawyer the name of his treating psychologist and to provide the psychologist with an irrevocable authority to confirm that the Father is attending appointments and compliant with any recommended treatment regime.
On 16 October 2013, the Court was advised that supervised time at the Contact Centre would commence on 2 November 2013.
In late December 2013, the Father filed an Application in a Case seeking to adduce evidence from an adversarial expert. He filed an amended Application in a Case in January 2014. On 29 January 2014, the Father's application to adduce evidence from Dr U, psychiatrist, as an adversarial expert, was heard and the application was dismissed for reasons given on that day.
On the first day of this hearing, the Father sought leave to rely on an Affidavit of the same Dr U, not as an adversarial expert, but as the Father’s future treating psychiatrist. Over the objection of the Mother’s counsel and counsel for the Independent Children’s Lawyer, the Court granted the leave sought by the Father on the second day of the hearing.
Current parenting arrangements
The Children live with the Mother and in accordance with Orders made on 13 June 2013, currently spend 2 hours each alternate weekend with the Father at the Interrelate Contact Centre in [C] and have telephone communication with the Father each week for no longer than 15 minutes.
Orders sought by the Mother
In her initiating Application, the Mother did not seek orders for the Children’s time with the Father to be supervised. As already noted, the Children had been spending unsupervised time with the Father from shortly after separation. The Mother says she believed the Father was taking his medication, and she wanted to facilitate the Children’s relationship with the Father. However, on 5 December 2012, the Mother learned that the Father was not on medication, nor under the care of the [S] Mental Health Team. The Mother was also concerned that since the filing of her Application in October 2012, the Father had kept [Y] for a few days without her consent, resulting in his absence from school. She therefore changed her position set out in her Initiating Application, and sought an order for the Children’s time with the Father to be supervised.
At hearing, the Mother seeks an order for sole parental responsibility, for the Children to live with her and for the Children’s time with the Father to be supervised at a Contact Centre every third weekend, indefinitely. The Mother proposes that the Father bear the costs of the supervised contact centre given he is in arrears of child support and the Mother is largely responsible for the children financially. The Mother seeks orders providing for her to be in a position to take the children away for a period of four weeks each year for a holiday. She would like the option to take the children overseas in the future for a holiday without the need for the Father’s consent or authorisation. The Mother proposes an order for weekly telephone communication between the Children and the Father on condition that the call does not exceed 15 minutes and the Mother is at liberty to listen to the call and terminate the call if she considers the content of the Father’s conversation to be inappropriate. The Mother seeks an order that the Father not provide written letters or cards directly to the Children during supervised visits but that letters and other written materials be provided to her first, so that she can check that there is nothing inappropriate in the content. The Mother is concerned that the Father will pass letters to the Children which undermine her, which refer to adult issues and which refer to the Father’s religious beliefs. She seeks an order that the Father be restrained from contacting the Children except as specifically provided for in the orders.[4] She deposes to her intention to make arrangements for the Children to spend time with the Father around the time of their birthdays and Christmas, subject to being able to organise appropriate supervision.
[4] Exhibit 10 – Mother’s Minute of Orders sought
Orders sought by the Father
The Father seeks orders providing for the parties to have equal shared parental responsibility, for the Children to live with the Mother and for the Children to spend time with him unsupervised on a graduated increasing basis, starting with two hours each week and gradually increasing over a period of 20 weeks to each alternate weekend from Friday after school until Monday before school. The Father seeks orders providing for the Children to spend one week with him in each short school holiday period and two weeks in the Christmas school holiday period, as well as time on special days.[5]
[5] Annexure A to Father’s Case Outline
The Father’s counsel advised the Court at hearing that the Father would also agree to an order, without admissions, that he consult a treating psychiatrist, in particular Dr U, and comply with his treatment recommendations.
Orders sought by the Independent Children’s Lawyer
At the commencement of the hearing, the Independent Children’s Lawyer sought orders providing for the Mother to have sole parental responsibility, for the Children to live with the Mother and to spend 2 hours every 3 weeks with the Father under the supervision of [P], a private agency which provides supervisory services. At the end of the hearing, because of the high costs of using [P], and because the Contact Centre at [C] confirmed its availability in the long term, the Independent Children’s Lawyer supported the Mother’s application for the Children’s time with the Father to be supervised by the Interrelate Contact Centre for an indefinite period.[6]
[6] At page 2 of the transcript of submissions -12 February 2014
Recommendations of the expert
Dr R interviewed the parties, the maternal grandparents and the Children in February 2013 for the purpose of preparing the expert report for the Court. In her report dated 28 March 2013, Dr R said that given the extent of the Children’s emotional distress at that time, their time with the Father should be reduced. In her opinion, the Father was unable to respond appropriately to their attachment needs and therefore the Children should not have the frequency of contact which promotes an expectation in them that he will available to meet their needs for comfort.
She recommended that the Children live with the Mother and spend time with the Father for 2 hours every 3 weeks under supervision. In cross-examination, she said that, ideally, supervised time would occur outside a Contact Centre in a more natural environment for the Children. She recommended that the Mother have sole parental responsibility for decisions concerning the Children. She recommended that the Father continue to take medication and attend appointments as recommended by his treating psychiatrist. She recommended the Father attend parenting after separation courses and discuss with health professionals how to manage the children’s anxieties and how he contributes to their anxieties. Dr R recommended that the Children and the Mother continue to see their treating clinicians.
Dr R recommended, that if, after six months:
a)the Children’s anxieties have settled; and
b)the Father has been compliant with medication; and
c)the Father has had no relapses in his mental health, as reported by his treating psychiatrist, Dr B; and
d)the Contact Centre have had no concerns about the Father’s interactions with the Children; and
e)the Father has not inappropriately communicated with the Mother,
the time then increase to fortnightly.
Dr R recommended that if, after a further six months the above conditions have persisted, then the family could again be assessed to ascertain if unsupervised time between the Father and the Children is appropriate.
Dr R was cross-examined at hearing. She had read all the documents produced on subpoena in relation to the Father’s medical history, the notes from the Interrelate Contact Centre and the Children’s school records. She had also read the Affidavit of Dr U, psychiatrist, and the affidavits relied on by each party at hearing.
After extensive cross examination, Dr R did not change her recommendation that the Children spend 2 hours with the Father every 3 weeks under supervision.
Legal principles
These proceedings were commenced after 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the Children as the paramount consideration. To determine the Children’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.
Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children. An additional object has been included to give effect to the Convention on the Rights of the Child.
Issues arising from the Father’s mental health state
The central issue in this case is whether the Father’s mental health condition and/or personality characteristics so limit his capacity to parent that, for an indefinite period, the Children should be supervised when in his care and should spend only limited time with him.
The Mother adduces a large volume of detailed evidence as to her own and others’ observations of the Father’s behaviours both during the marriage and after separation, and the Children’s responses to those behaviours. I accept the Mother’s evidence as truthful. I find she has demonstrated an intelligent understanding of the complex issues involved and I find her insightful and child-focussed. The Mother’s evidence discloses that the Father has caused the Children emotional disturbance by undermining the Mother to them or in front of them, involving them inappropriately in adult issues, including these proceedings, and burdening them with his extreme religious beliefs. The maternal grandfather, Mr B, was also an impressive witness. He said that he loved the Father. He gave evidence about his deep religious beliefs, including his belief in faith healing. He gave evidence of some of his observations of the Father both during the marriage and after the parties’ separation. I accept the truth of the entirety of his evidence.
Dr R interviewed the parties and the Children 12 months before hearing. As already noted, at that time, the Children’s time with the Father had been supervised and of reduced frequency for a period of 2 months. Prior to those arrangements being introduced in December 2012, the Children were spending regular unsupervised time with the Father including overnight time. In her report of March 2013, Dr R recommended that the Children’s time with the Father remain supervised, but that the frequency of time be reduced from two hours every week to two hours every three weeks. She made a number of recommendations which, if followed by the Father, left open the possibility of the Children ultimately spending unsupervised time with him. It is common ground that the Father did not follow Dr R’s recommendations.
At hearing, Dr R expressed her view that the Father is so lacking in insight as to the negative impact of his interactions on the Children (and on the Mother), whether because of a mental illness or personality traits or both, that he has not changed the way he interacts with either the Children or the Mother since her report was released. In Dr R’s opinion, he will not change his approach in the future unless he accepts and follows through on his need for long term psychiatric assistance to enable him to reflect on the impact of his behaviours on the Children and demonstrates a capacity for never repeating such behaviour. Dr R recommends that the Children spend 2 hours with the Father every 3 weeks, under supervision, so that the Children will have the opportunity for a healthy relationship with the Father, should the Father develop the necessary insight and skills to interact appropriately in the future.
Despite the extent of the material adduced in evidence relating to the Father’s medical history, on the basis of Dr R’s and Dr U’s evidence I do not find it necessary for this Court to make a finding as to whether or not the Father currently suffers from a particular mental illness or has particular personality traits or a particular personality disorder. While a specific mental health diagnosis may be relevant to the Father’s treatment and/or prognosis, I am not satisfied it will, in itself, answer the critical question of whether the Father has sufficient parental capacity for the Children to benefit from unsupervised regular time with him, as he proposes, or what parenting arrangements would best promote the Children's welfare.
It is evident that the cause of the Father’s parenting difficulties is a perplexing issue, even for those professionals with expertise in mental health. One of the counsellors from Children of Parents with Mental Illness (COPMI) noted, in general terms, the complexities of assessing what causes certain behaviours: is it the mental illness, the personality issues or the controlling behaviour?[7] In relation to the Father in this case, the medical notes record that “[the Father] exhibited bizarre beliefs and dysfunctional behaviours even when his mood was reported to be stable.”[8]
[7] Exhibit 5 – COPMI notes16 November 2012
[8] Ibid – 5 December 2012
While Dr R proffered a provisional diagnosis of Bipolar Disorder Type 1 with narcissistic personality traits, she also raised the possibility that the Father may suffer from a Schizo-Affective Disorder. Dr R based her opinion and recommendations on the notes in relation to the Father’s medical history, her interviews with the parties, the maternal grandparents and the Children, her observations of the Children with each party, the affidavit material relied on by each party, and the notes produced by the staff of Interrelate Contact Centre who have been supervising the Children’s time with the Father since November 2013.
I refer to the material aspects of the evidence Dr R relied on, from each of the sources I have identified.
Father’s medical history
Dr R noted in her report[9] that the Father had a significant family history of mental disorder – his maternal grandmother, his mother and brother have suffered from serious mental disorders. The Father also told Dr R that his own father became violent when affected by alcohol.
[9] Exhibit 1
The Father denied any mental health issues before his father died in August 2005, when he describes “spiralling into depression”. He sought medical advice and took anti-depressant medication as prescribed. The Father says he also had a “kind of intermittent humming in my ears.”[10] He was later diagnosed with Bipolar Disorder Type 1 by a psychiatrist, although the Father does not accept this diagnosis.
[10] At paragraph 38 of Father’s affidavit sworn 7 February 2014
In March 2011 and again in October 2011, the Father was displaying symptoms of psychosis and was hospitalised in [S] Inpatient Psychiatry Unit for approximately 4 weeks on each occasion, as an involuntary patient. On 1 November 2011, the psychiatric Registrar from that Unit prepared a report for a Mental Health Review Tribunal hearing concerning the Father’s involuntary admission, which provides a useful summary of the medical opinion about the Father at that time. The report states:[11]
He [the Father] has a genetic diathesis for mental illness, his brother has schizophrenia and previous ECT treatment, his mother suffered postnatal psychosis and his father expressed intense religious ideas to him throughout his childhood… [the Father] had an admission… in March 2011 after cutting his wrists. At that time he was experiencing grandiose religious preoccupations and believed he could prevent a star from exploding to fight Lucifer.
In the week preceding this admission there was a marked change in his behaviour. He was hyperaroused with racing thoughts. He would sing and at other times adopt a sinister voice stating he was talking to demons. He was reciting psalms and preached to his children that the end of the world was approaching. These behaviours provoked fear in his wife and she took herself and the children to her parents’ place. He would literally interpret the bible and lit a flare at his home as he was attempting to “light the darkness.”
Over the course of this admission his mood has improved, however, his religiously intense grandiose delusions remain….He misinterprets the experience of his mania on admission as an ecstatic religious experience “a 100% healing” and he expresses delusions pertaining to malicious organisations that have put Satan’s DNA into humans to make “Reptilians”. He states he can detect the Reptilians by their differently shaped pupils. …
There is risk of harm to his relationships….his ideas are frightening to [the Mother] and the children. The exposure of these ideas is damaging to the psychological well-being of his children. ..
…he has poor insight into his family predicament.
[11] Report dated 1 November 2011 – Exhibit 8
On 16 December 2011, Dr B, the consultant psychiatrist who treated the Father in [S] hospital, states that the Father was admitted to the Mental Health Unit of [S] Hospital from October to November 2011 “for treatment of a manic episode of a bipolar mood disorder.” In his opinion, the Father had gained some insight into his condition, and was compliant with taking lithium for maintenance treatment.[12]
[12] Annexure E to Father’s affidavit sworn 7 February 2014
In cross-examination the Father says he ceased taking lithium in May 2012 “because he did not need it anymore” and by August 2012, it was confirmed to him that he had been “healed by the Holy Spirit.” The basis of the confirmation was that “he knew in his heart that he was totally healed.”
On 18 October 2012[13], the Father informed the community mental health worker that he had been “healed by God” and that he was intending to withdraw from lithium (though he says in oral evidence that he had already stopped taking it).
[13] Exhibit 7
In or about December 2012, the Father agreed to resume lithium for a further six months on the advice/encouragement of Dr B whom, the Father says, advised him that being off the medication would jeopardise his court case.[14]
[14] Father’s oral evidence
On 3 December 2012, a letter from Dr D, the Father’s General Practitioner, to Dr M psychiatrist, notes that the Father had severed contact with [S] Hospital community mental health team but was “keen to control the condition through lifestyle modification”.[15]
[15] Exhibit 6
A letter from Dr B dated 8 April 2013[16] states that the Father’s “current diagnosis is bipolar mood disorder, which appears stable at present. His current treatment is lithium 450mg twice daily. He is compliant with medication…[having] followed advice to restart medication at the end of last year [after a break]…. Risk factors for compliance are his insight and understanding of his illness, which is partial. Some proportion of his acute episodes was due to drug and alcohol use…Recently he has come to the conclusion after persuasion from others that taking medication is a reasonable step to reduce his chance of relapse, as well as other lifestyle changes he has put in place.
[16] Exhibit G to Father’s affidavit sworn 7 February 2014
A letter dated June 2013 from Dr B to Dr D, General Practitioner, transferring the Father to the primary care of Dr D, states that the Father’s diagnosis is Bipolar Disorder Type 1 and the letter notes that Dr B has no current concerns.[17]
[17] Exhibit 6 – ICL Tag Number 12
In cross-examination, the Father says "this is about bipolar tendencies". He says he does not accept that he had or has Bipolar Disorder. He said "Dr B is entitled to his opinion …but I disagree with that".
On 20 June 2013, the Father attended on Dr D and the notes reported him telling Dr D that he has been “cured by God”.[18]
[18] Exhibit 6 – ICL Tag Number 14
The Mother annexes emails to her from the Father dated June and July 2013 in which the Father says that he is neither mentally ill, nor mentally unstable. The Father said he has been “healed by the blood of Jesus” from any mental illness and agrees he told the Mother “I’ve spiritually been delivered from it.”[19]
[19] As reported by Dr R in Exhibit 1 at page 14
The Father consulted Ms A, psychologist, for an initial assessment on 27 June 2013, and again on 6 July and 24 July 2013[20]. By the time of this final appointment with Ms A, the Independent Children’s Lawyer had provided Ms A with a copy of Dr R’s report and the Mother’s affidavit of October 2012[21]. Ms A advised the Father that she was not qualified to assist him due to the complexity of the issues and she advised the Father to consult a psychiatrist. The Father did not consult a psychiatrist for treatment/management as advised by Ms A.
[20] Father’s oral evidence
[21] Per orders of 14 June 2013
In August 2013, the Father says he decided to stop taking lithium again. He says he had been “cured permanently by God”, but he was also following a strict health regime to regulate his mental health, including sleep, diet, exercise and avoidance of alcohol. He says he felt much happier and healthier when not suffering from the side-effects of mood stabilising medication.
On 17 October 2013, the Father advised the intake officer at the Interrelate Contact Centre that the Mother had left him due to "”his bipolar". The Father told the Service that he suffered Bipolar due to antidepressants, had suffered a psychotic episode and was in hospital for four weeks. He told the service he had made “a full recovery.”[22]
[22] Exhibit 2
Dr R’s interviews and observations at interview
In summary, the Mother told Dr R in February 2013[23] that the Father was “almost always in conflict with people” and was easily offended. She described living “on eggshells to keep him happy”. She gave numerous examples of paranoid beliefs held by the Father. He would be suspicious that others were watching him and would point out people who had evil spirits in them or were going to hell.
[23] Exhibit 1
The Mother told Dr R that the Father has been encouraging the Children to keep secrets from her, telling the Children that the parties would get back together and that the Mother is lying. She reported that he talks to them about the Court proceedings and about how upset he is, such that the Children feel they must look after him and comfort him. She said the Father’s “bizarre behaviour” has come to be seen by the Children as normal. She worries about what the Father is teaching the Children. [X] has told her that Jesus is coming back in 9 years and that “Christians don’t leave their husbands”. The Mother told Dr R she would like a mechanism whereby the Children could spend time with the Father if he was well and where she could stop time “if he’s being difficult.”[24]
[24] At page 10 of Exhibit 1
The Mother described her concerns about the impact of the Father’s behaviour on the Children as follows:[25]
a)In relation to [X], the Mother said he was “acting like his father – aggressive, demanding, tells her what to do.”. He has pushed her and tells her “to fix things” as he “makes comments it’s all my fault, his dad is well, I need to say I’m sorry and obey him.”
The Father has talked about [X] being the “millennial child” and he has to prepare him for this role. He has called [X] his favourite child and “[X] feels it’s his responsibility to get his parents back together”.
b)[Y] has a lot of anxiety about school, everyday activities, the dark, and sometimes the Mother leaving him. He has said “I want to quit life.” Around November 2012, [Y] had a panic attack, during which he was hyperventilating, felt like vomiting and had diarrhoea. [Y] told the mother he had a secret with the Father but settled down when he told her the Father had told him he has a special ability to see things in his imagination.
At interview in the presence of the Mother, [Y] drew a picture of the Mother being electrocuted and eaten by sharks, telling the Mother she is mean to the Father.
c)In relation to [Z] the Mother said that she follows the Mother around “"like a shadow", will not sleep alone, and needs a lot of emotional support. She said she “talks too often” about why they are not living with their Father and says the Mother “needs to say sorry”. The Mother reported [Z] “stealing, hiding lollies and her brothers’ things.” When presented with the consequences of her actions, [Z] responds excessively, saying she hates herself or why doesn’t anyone love her.
d)When the Children were spending two days and a night at a time, unsupervised with the Father, “they were chaotic”: their school performance deteriorated, they attended school inconsistently, they bombarded her with accusations, knew about financial matters, and were emotional and defiant. She described the Children only being in conflict with her about their Father, but being otherwise very close to her, and to them sharing lovely holidays together with her.[26]
[25] At page 2 of Exhibit 1
[26] At page 11 of Exhibit 1
The maternal grandparents told Dr R at interview in February 2013[27] that the Father:
…cries all the time, over the telephone, in front of them…At handovers the Children would spend 20 minutes in the car holding and hugging him – he could not let them go and they felt he needed them.
[27] At page 2 of Exhibit 1
They reported [X] being rude to the Mother, answering her back, and to [Y] being withdrawn.
They reported the Father buying the Children “expensive, impressive toys” each week, leading to [Y] expecting the Father to buy him anything he wants. For no particular occasion, the Father had given them a motorized scooter, an ipad, a jar each of honey worth $200 a jar, and a 3D DS worth $500.
The Father outlined his medical history to Dr R and told her he had been diagnosed with depression after his father’s death and that Bipolar Disorder “was queried”. He denied consuming alcohol to excess as alleged by the Mother. He said he suffered his first psychotic, manic episode with visual hallucinations in March 2011, and a “mild manic episode” in November 2011, when he had not slept for 5 days. He denied psychosis at that time. The Father told Dr R that at Easter 2012, he decided to become healthy, gave up alcohol and lithium, changed his sleeping and eating routine and began to exercise. At that time, the Children were with him two days a week and having “a great time”.[28] He restarted lithium in December 2012 because he understood it would assist him at Court. At the time of interview, the Father was taking lithium and Xanax for anxiety. He told Dr R that he was “healed” having been “spiritually delivered from it.” He denied any possibility of relapse in the future because “God told me I’m healed by the blood of Jesus”.[29]
[28] At page 14 of Exhibit 1
[29] Ibid
At interview with the Father and the Children together, Dr R noted that [X] made it clear to the Father that he had told Dr R that he wanted to live with his Father. The Father commented on [X]’s teeth being “so big”, that he was growing up and he (the Father) was “missing out”. When he asked the Children about a party they had been to, the Father said he was sorry he could not be there. The Father asked [Y] what he would say if God gave him 3 wishes, [Y] replied 3 times “stay with you”, and [X] volunteered what he had wished for in his assessment. When the Father asked [Z] for her wishes, she said “staying with you, wish Mum and Dad to live together.”[30] The Father allowed the Children to draw on his shirt and [Y] was heard to say to [X] “only allowed to draw love things”. The Father told them to write something on the paper and the Children “wrote” about loving him. When [Z] chose to “write” to [X], she was asked by the Father what she wanted to write about him. She obliged by “reading” how she loves the Father.[31] When asked to leave so that [Y] could be seen separately, [Y] cried and clung to the Father. The Father said “please don’t make this hard for me”.[32] The Father made no effort to leave the room, telling [Y] “one day we will be together again, after the Court.”[33] The Father then hovered outside her room. [In cross-examination, Dr R did not accept the Father’s explanation that he waited outside her office door to get a drink from the bubbler, because the bubbler is located some distance away in the waiting room.]
[30] At page 7 of Exhibit 1
[31] At page 8 of Exhibit 1
[32] Ibid
[33] Ibid
[X] told Dr R that the Father had been sick with “bipolar… head goes all funny, sees stars and acts a bit crazy.”[34] [X] also mimed how the Father had been at the computer one day with his eyes closed and [X] had thought the Father “was going into another dimension, into crazy mode” and asked the Father whether he should call the police, an ambulance, or the Mother.
[34] At page 6 of Exhibit 1
Evidence of the Father’s conduct during the marriage
The Mother says that the Father’s behaviour was erratic during the marriage, with intense moods and frequent outbursts of anger.[35] She observed manic behaviours, disordered religious thinking and hallucinations. He frequently suffered from debilitating headaches and threatened many times to self-harm if she left him. She found the Father over-reliant on Biblical passages as a means of communication and justification for his actions. He kept her awake at night to talk[36] about things such as:
…I see numbers and patterns on the ceiling.”… “They are symbolic, God is speaking to me about them. The Hebrew words go into me.
The Father has had a preoccupation with the end of the world ever since the Mother has known him, saying such things as “God has revealed to me dates and times.” The Father used to corner friends, family members and acquaintances for up to an hour at a time to talk about his revelations with comments such as “we are the fourth part of the Trinity and therefore equal to God”. She said he would become more strident if he were challenged.
[35] At paragraph 58 of Mother’s affidavit sworn 23 January 2014
[36] At paragraph 72 of Mother’s affidavit sworn 23 January 2014
The Mother’s close friend and godmother to [Z], Ms D, gave unchallenged evidence as to her observations of the Father during the marriage. She observed the Father’s “terse, demanding and dominating” style of speaking to the Mother. She says the Father spoke almost exclusively about himself or proselytised about his religious beliefs.[37] She gives numbers of examples including the Father saying “I have special gifts given to me which allow me to see so much more than the rest of you.”[38] He spoke of the Holy Spirit healing his sickness so he could drink wine, and claimed the Holy Spirit had commissioned him to heal the Mother’s ailing grandmother.[39] He admitted to removing a large block of stone from the Forbidden City in China and hiding it in his backpack to get through Customs. He said “If the Holy Spirit protected me from getting caught, I’d know I’d done nothing wrong. And I didn’t get caught”.
[37] At paragraphs 6 and 7 of affidavit of Ms D sworn on 24 January 2014
[38] At paragraph 7 of affidavit of Ms D sworn on 24 January 2014
[39] Ibid
According to the Mother, the Father drank alcohol to excess from their early days together. She claims that he was drinking from 10 a.m. each day, and imbibed 20-30 shots of wine and spirits throughout a day. While he used to reduce his intake or stop drinking altogether at times, when he did drink, the Mother reported him being “aggressive and abusive”.[40] Until March 2012, the maternal grandfather saw the Father regularly drinking alcohol and being socially withdrawn or verbally aggressive towards the Mother when under the influence, and to the Mother trying to placate him in response.
[40] At page 11 of Exhibit 1
The Mother refers to the Father’s odd beliefs. By way of example:
a)He told the Mother that “black people are cursed, they can’t be saved.”
b)He insisted that [X] should not be medicated when, as a baby, [X] was suffering acute pain from reflux.[41]
c)He told the Mother in 2009 that “I have a special ability to hear noises from one ear at a certain pitch that no one else can hear.” He described hearing a humming noise mostly at night which he said came from a humming machine[42].
d)He would say to the Mother “there are certain frequencies that the transmissions are on to effect the population without their knowledge” and “there is a weather machine in the US, the US is using it to control our weather.”[43]
e)He would say about various people he had met “they are going to hell and can’t be saved, I know because God has told me this.”[44]
[41] At paragraph 17 of Mother’s affidavit sworn on 23 January 2014
[42] At paragraph 72 of Mother’s affidavit sworn on 23 January 2014
[43] Ibid
[44] Ibid
On 19 March 2011, (when the Father suffered a psychotic episode) the Father said to the Mother[45]:
I was in the hut of the airport and the pages of the Bible turned by themselves. I heard God say “put on the mask”. That’s a turning point for me, [Ms Heine]. This is the beginning of my restoration.
On the same night, the Father forced the Mother and Children to sleep together, with the Mother at the bottom of the bed. For about three hours, he sat in a foetal rocking position repeating the words “consider the word”, unable to otherwise communicate. The Mother observed that the Children were scared by the Father’s behaviour so took herself and the Children to her parents’ home where they remained for a week. The maternal grandfather confirmed that when he arrived there was “something seriously wrong with the Father”.
[45] At paragraph 60 of Mother’s affidavit sworn on 23 January 2014
On 20 March 2011[46], the Mother (who returned alone to the home) saw a tall glass of red/brown coloured liquid, and the Father said to her:
…don’t worry, I am being restored and you have no idea what is going on. You have to trust me and come home when all this is finished. If I were to say go, you would press your thumb down and then the planet Betelgeuse will explode and [M] would be instantly healed.” (the Mother explains that [M] is the Mother’s niece, and has a rare genetic disorder).
Frightened, the Mother left the house, to call the Father’s brother [Mr E]. Later that day, [Mr E] reported that he had seen the Father cutting his own wrists and the Father had tried to lock [Mr E] in a room to get his blood “so I can fight the Demons with him.” The Father was admitted to [S] Hospital that day.
[46] At paragraph 62 of Mother’s affidavit sworn on 23 January 2014
On 21 March 2011, the Father left the hospital and was found several hours later in his hospital gown, having taken a train to [suburb omitted]. The Father was scheduled. He was prescribed lithium and an antipsychotic drug. The Mother says whilst in hospital the Father appeared to lose all sense of reality. He said words to this effect “I am Jesus returning to earth. It’s the end of the world, [Ms Heine].”[47]
[47] At paragraph 65 of Mother’s affidavit sworn on 23 January 2014
In late September 2011, after drinking heavily over several days, the Father told the Mother that [X] was a “millennial child” and that he would need to “teach [X] about the role he was to play in the times to come” and that he would “prepare [X] for this special role”. …. The Mother says he also said that “I have power and authority over you. You will get down on your knees and beg forgiveness from me… Oh I see, it’s the Demons making you talk like this and making you want to leave me. Well, it’s not going to work.”[48]
[48] At paragraph 67 of Mother’s affidavit sworn on 23 January 2014
On the night before [X]’s birthday in October 2011, the Father gave [X] a figurine which, to the Father, had special symbolic significance. The Father said to [X] words to the effect “it’s important that you sleep in my bed tonight.” He took [X] to school the following day, and the school later raised concerns with the Mother as to the Father’s behaviour at the school.[49] On many occasions over the last two years the Father has said to [X] “one day you will be playing trumpet with the angels in heaven”.[50]
[49] At paragraph 68 of Mother’s affidavit sworn on 23 January 2014
[50] At paragraph 141 of Mother’s affidavit sworn on 23 January 2014
On 14 October 2011 the Father was in the garden singing loudly and exuberantly[51]. That evening [Z] came running down the stairs and screamed “there is a monster in Daddy’s room”. On investigation, the Mother heard the Father talking in a low growling deep voice saying “I’m using my voice of authority, like the lion of Judah, to scare away the demons. I have the ultimate authority to speak against the demons.” The Father was scheduled to the psychiatric unit of [S] Hospital until mid- November 2011.
[51] At paragraph 70 of Mother’s affidavit sworn on 23 January 2014
Evidence of the Father’s conduct after separation and the Children’s behaviours
The Mother described the Father as less manic when on medication after his October 2011 hospitalisation (the time of separation). However, during 2012, she was again concerned about the Father’s mental health and its impact on his parenting capacity. She did not know whether or not he was taking medication, and sought regular guidance from the Father’s mental health team as to whether the Children were safe in his unsupervised care. The clinical notes of [S] Hospital[52] disclose the Mother’s requests for assistance. By December 2012, the Mother had formed the view that the Children were not safe in the unsupervised care of the Father. At interview with Dr R in February 2013, the Mother said she was “seriously worried about him [the Father] doing something drastic with our children.”[53] She told Dr R that she wanted the Children to be “physically and emotionally and psychologically protected from their Father”.
[52] Exhibit 7
[53] At page 9 of Exhibit 1
From late 2011, [X] was giving the Mother the Father’s version of why their separation occurred and was angry with the Mother for not being there for the Father. [X] has reprimanded [Y] for telling the Mother what the Father has said to them: “[Y], Dad said it was secret and we shouldn’t tell Mum or she will get mad.” [Y] has said to the Mother “why did you tell daddy that you would never go back to live with him again?" [54]
[54] At paragraph 188 of Mother’s affidavit sworn on 23 January 2014
In February 2012, [X] was present when the Father loudly blamed the maternal grandfather for the Mother’s refusal to reconcile. [X] tearfully reported to the Mother that the Father was “so tired all the time” and begged the Mother to go home because “he needs you”.
In February 2012, Ms D saw the Father sobbing as the Children left him to return to the Mother, repeatedly saying words to the effect “chin up, be strong, we’ll be together as a family again.” Ms D heard [Z] (aged 4 at the time) trying to console the Father, using a gentle voice and saying repeatedly “don’t worry daddy”. She observed both boys visibly distressed.
Ms D reports [X] saying to her (inter-alia):[55]
Dad told me that God is going to make Mum love him again. It will happen when mum stops being wicked and disobedient and starts listening to God again… and
You can only be on dad’s team or mum’s team. Dad has no one on his team and mum has heaps on her team, so I will stay on dad’s team. Dad said you can’t be on both teams, you have to pick.
[55] At paragraph 12 of affidavit of Ms D sworn on 24 January 2014
On 8 March 2012, the [S] Hospital notes record Dr P from the [S] Mental Health Team visiting the Father at home. His notes state[56]:
…[the Father] appeared alcohol affected…. He said he had drunk “a bottle of stuff” and had been wandering on [omitted] Golf Course yelling and praying loudly…
[56] Exhibit 5
On 21 March 2012, the Father acknowledged to Dr P in conversation that alcohol had been an ongoing problem for him for years and that he intended to stop because of its huge impact on his relationship with the Mother and the Children.
In April 2012, [X] said to the Mother:
…I need to have a talk with you. You have been hiding things from me in making things up. Now you’re in big trouble. You’ve been lying to me. I’m so angry that I could shoot my toy gun at someone….
…there are only two things you need to do to make me love you and hug you. You need to tell daddy you love him and say you’re sorry and go back to him. …
…you know what you have to do if you want me to hug you. You have to stare into dad’s eyes for 60 seconds and tell him that you love him.
On Easter Sunday in April 2012, the Father had two car accidents by lunchtime with the Children in the car. He caused substantial damage to his car, though no-one was physically hurt. He returned the Children to the Mother. [Y] was hysterical as he related what had happened to the Mother and grandfather. “Daddy had his car ran into, they smashed the windows and they were shouting at Daddy. They kept shouting at him….Daddy hit the driveway too… “I don’t want to go in the car, I don’t feel safe”.[57] Mr B (the maternal grandfather) says the Father was speaking slowly with a blank expression on his face and did not look sufficiently alert to drive. [X] would not leave the car. As the Father drove away with [X], the Father said loudly through the open window “she’s the worst wife in the whole world. She’s disobedient.” [X] covered his ears with his hands. A few hours later, the police called the Mother to say the Father and [X] had been in a car accident and were in emergency at [S] Hospital. The police reported the Father, who seemed to them vague and confused, driving into the wrong lane and hitting a car. The events of this day prompted the Mother to arrange a mental health evaluation of the Father by his mental health team. The Father concedes that he spoke to the Mother in the way alleged in front of the Children, but explains that he was suffering a migraine headache.[58]
[57] At paragraph 86 of Mother’s affidavit sworn on 23 January 2014
[58] At paragraphs 112 and 113 of Father’s affidavit sworn on 7 February 2014
After the Easter Sunday 2012 car accidents, the Mother says that [Y] was “completely hysterical” and has since suffered bouts of extreme anxiety. The May 2012 notes of the Child Adolescent Psychology Service (CAPS)[59] record [Y]’s concerns that “Dad misses us” and that he was frightened by the Father’s recent car accident, that his Father let him play with a knife under supervision and that he “generally doesn’t feel safe.”
[59] Exhibit 3
On 9 May 2012[60], the Father wrote the Mother a 5 page email which he says (in the email) took him “7 constant hours” to write. The email contains these passages:
[60] At paragraph 134 and Annexure D of Mother’s affidavit sworn on 23 January 2014
Spirits of suicide have come against me and I have had to rebuke them in the name of Jesus…(Thankfully I have the Holy Ghost protecting me [Ms Heine]. There have been some absolutely frightening and freaky things happen in this house and I was sober and not hallucinating.)
…
You have never ever submitted to me [Ms Heine] like you do to Jesus. This is a clear directive in Ephesians 5:22
For Wives, this means submit to your Husbands as to the Lord. For a husband is the head of his Wife as Christ is the head of the church. He is the saviour of his body, the church. As the church submits to Christ, so your Wife should submit to your husbands in everything….
Colossians 3:18 Wives, submit to your Husbands, as it is fitting for those who belong to the Lord.
If you say that you ….[Ms Heine]…belong to the Lord, then why do you want to divorce me and not wish to submit to me as God requests?
In October 2012, the Father said to the Mother in front of the Children (when the Mother was trying to prevent discussion about the Children in their presence):[61]
…I rebuke you spirit of Jezebel in the name of Yeshua. You will answer to the father Yahweh Elohim now.
In cross-examination, the Father explains that Jezebel is an evil spirit whom he believed was in control of the Mother at that time.
[61] At paragraph 116 of Father’s affidavit sworn 7 February 2014
In November 2012[62], the notes of the Child Adolescent Psychology Service (CAPS) record [Y] experiencing anxieties, especially in relation to the Father telling him about evil spirits and evil things that can happen to him if he thinks certain things.
[62] Exhibit 3
The Father has questioned the Children about their counselling sessions. On 14 December 2012, after speaking with the Father, [X] said to the Mother[63]:
Dad warned me about talking to [first name omitted] (the children’s COPMI counsellor). He said she would ask all sorts of questions and I had to be careful how I answered them. So I’m not going to answer any of them.
[63] At paragraph 175 of Mother’s affidavit sworn on 23 January 2014
On 14 January 2013, the Mother heard the Father say to [X] “[first name omitted] [the counsellor] lied to you.”
On 22 December 2012[64], when the Mother discovered [Z] had been stealing, and asked her why she had stolen chocolate from her grandmother, [Z] responded:
Dad is all by himself and he’s sad. Why can’t we sleep at his place? I’m so sad because Dad is very sad all on his own and he needs his kids and he needs you too mummy. You know Dad told me you are lying to us.
[64] At paragraph 191 of Mother’s affidavit sworn on 23 January 2014
[Z] has said to her grandfather “Will you cry for me when I’m at dad’s?[65] [Z] said, “Dad tells me he cries for me. I see him cry a lot.”
[65] At paragraph 34 of affidavit of Mr B sworn on 27 January 2014
In January 2013, Mr A supervised the Children’s time with the Father. His unchallenged evidence[66] is that he observed the Father crying while embracing the Children at the beginning and end of their time with him.
[66] Affidavit of Mr A sworn on 5 February 2014
Between December 2012 and January 2013, the Mother reports [Y]’s and [X]’s increasing defiance and anger towards her for being separated from the Father, demanding that she apologise and go back to him. Ms D observed [X] frequently disrespectful toward the Mother and in her affidavit refers to specific remarks from [X] including[67]:
[67] At paragraph 34 of affidavit of Ms D sworn on 24 January 2014
…It’s your fault that we don’t live at home. You need to say sorry to dad and we can move back….
…Dad told me not believe any of the lies you tell me…this is all your fault.
The Children’s counsellor’s notes[68] of January 2013 disclose that both [X] and [Y] were upset by the Father’s distress at the change to supervised time, and that the Father has discussed his feelings with them. [X] has said the Mother has lied to him about the Father’s ill health, and that the family breakdown is the Mother’s fault. On 30 January 2013, [Y] reported feeling sad because “Dad misses us very much”. The counsellor believed that [Y] was feeling responsible for his Father’s happiness.
[68] Exhibit 3
During regular telephone calls on speakerphone, the Mother has heard the Father repeatedly complaining about her to the Children, and discussing his difficulties with the Court’s orders and his grief about their separation.
Ms D observed that [X] often became extremely distressed with little or no provocation and would then seek out the Mother to be consoled. [Y] school counsellor recommended that he be assessed for Attention Deficit Hyperactivity Disorder, because of his behaviours at school and the children’s counsellor, Mr F, questioned whether [X]’s behaviour was symptomatic of Oppositional Defiance Disorder.
On 2 January 2013, the Mother heard [X] say[69]:
[69] At paragraph 175 of Mother’s affidavit sworn on 23 January 2014
…yeah Dad, I keep telling Mum to asked the judge for two days a week in April.
On 12 February 2013[70], [X] asked the Mother when the matter was next before the court. He wanted her to ask the Judge for two days rather than two hours with the Father. When the Mother said “it’s up to the Judge”, [X] insisted “it’s up to you. You have to ask the Judge for more time.”
[70] At paragraph 197 of Mother’s affidavit sworn on 23 January 2014
On 1 March 2013[71], the Father said to [Y] on the phone “if you want to see Daddy for more than two hours a week, you can pray to Jesus, and he will answer your prayers and do anything you ask him to do.”
[71] At paragraph 199 of Mother’s affidavit sworn on 23 January 2014
On 29 March 2013, Ms D supervised the Children’s time with the Father at a park. However [Y] did not want to see the Father and refused to leave the Mother’s car. The Father was very upset by [Y]’s attitude. Ms D tried to explain to the Father that the Mother was encouraging [Y] to see him and perhaps [Y] would join them shortly. Ms D described the Father’s angry approach to her, shaking his finger in her face “you shouldn’t have come down without [Y]. I haven’t seen him in three weeks and I need to find out why he is scared of me.” The Father then proceeded to sob. He had limited interaction with [Z] and [X], who were there to spend time with him. Ms D says:[72]
I became fearful because of [Mr Heine’s] aggressive and hostile demeanour, and was concerned that he might hit me.
Ms D called for support. Thereafter the Father did not consent to Ms D supervising.
[72] At paragraph 29 of affidavit of Ms D sworn on 24 January 2014
On 14 April 2013, [X] said to the Mother[73]:
You know dad’s lawyer, Ms C? Ms C gave him a new law saying he can come to any special event, including operations.… You are disobeying the Judge, Mum…
[73] At paragraph 201 and Annexure H of Mother’s affidavit sworn on 23 January 2014
In May 2013, the Father said to [X][74] “God knows the desires of your heart, and he knows that you want to be with your Dad.” The Father reminded [X] of the cat, the trampoline and the barbecue that remained at the former matrimonial home, causing [X] to cry.
[74] At paragraph 175 of Mother’s affidavit sworn on 23 January 2014
In May 2013[75], in a phone call to the Children, the Father read complex passages to the Children from the Bible for over 45 minutes. The Children did not seem to the Mother to understand anything the Father was saying, and [X], in particular, was very upset that there was no time left for him to chat to the Father.
[75] At paragraph 139 of Mother’s affidavit sworn on 23 January 2014
On 15 June 2013, the Father wrote in an email to the Mother[76]:
…otherwise you will spend a lifetime of regret when this finally catches up with you (and rest assured it will for the Holy Spirit has born witness of all your wickedness, animosity and hatred that you continue to show relentlessly towards your ex-husband…
…May God have mercy on you [Ms Heine] and the Satanic advice you have been receiving from [the Mother’s counsellor]. Remember that an artificial penis or dildo is a “phallic” cult religious emblem which was worshipped and if you are deriving pleasure out of this it is an “IDOL” and an “abomination” in the sight of the Lord. This is written in Scripture. He hates these things as the pleasure obtained from them alienates you from Christ as it is written in Philippines [sic]. … One of these days soon the Holy Spirit has shown me that he himself will deal with the [Mr B’s family name omitted] and the [family name omitted] and the [Ms D’s family name omitted] when he ordained you for judgement to commence which will bring you into repentance and a closer relationship with the Father of Lights. (James 1, 2 , 3).
[76] At Annexure B to Mother’s affidavit sworn on 23 January 2014
On 16 June 2013, two days after appearing at Court, [Y], in tears, said to the Mother[77] “Dad said you are lying to me and that it’s all your fault the judge said he could only see us on supervised visits.”
[77] At paragraph 153 of Mother’s affidavit sworn on 23 January 2014
The Father has told the Children that God has healed him and he is well, completely cured of his illness. In July 2013, he told [X] that he had a report from the doctor to say he had made a full recovery. He then promised [Y] he could stay overnight with him one day soon[78]. The Children were excited by this news.
[78] At paragraph 77 of Mother’s affidavit sworn on 23 January 2014
The Father has said to the Children many times in the Mother’s hearing, particularly in July and August 2013[79]:
…Just keep praying that we won’t be separated anymore…[and] …just keep hoping, just keep praying and we’ll be together again soon. Never stop hoping…
[79] At paragraph 140 of Mother’s affidavit sworn on 23 January 2014
On 26 September 2013, [X] was in [omitted] for a 5 night school camp. Parents were not invited to attend the camp. However, the Father drove to the camp by motor bike at 7.30a.m one morning and was found waiting outside one of the cabins. He did not see [X] but asked staff to give [X] a small booklet and a stone. Staff told the Mother it took them an hour to persuade the Father to leave[80].
[80] At paragraph 158 of Mother’s affidavit sworn on 23 January 2014
On [date omitted] 2013, the Father wrote:
“Hebews [sic] 10:10-31. Please wish my eldest Son [X] a happy 10th birthday. Love from Daddy.”
Hebrews 10:10 – 31 refers to “vengeance” and “judgement”. [81]
[81] At Annexure M to Mother’s affidavit sworn on 23 January 2014
On 18 December 2013, the Father notified [Z]’s preschool that he was coming to see [Z] on her last day of pre-school, not an occasion for parents. The pre-school notified the Mother. She collected [Z] and the boys before the Father’s anticipated arrival time. When the Children were travelling in the car with the Mother, the Father appeared in his car. The Mother says that the Father veered onto her side of the road, put his head out of the window and tried to talk to her. The Mother kept driving but had to stop at a red light. The Father was right behind her. The Mother says that the Father jumped out of his car and ran up to her car angrily. The Mother says, after checking she was safe to do so, she turned left against the lights. The Father followed her back to her residence about 10 minutes away. The Mother describes the Father driving erratically and motioning several times for her to pull over before driving up next to her and waving and smiling at the Children. [Y], hysterical, said “Why is Dad chasing us? Is he trying to kill us?” and “Was dad breaking the Judge’s rules by doing that?” Later that evening the police attended the Mother’s home in response to the Father’s complaint that he had missed speaking to the Children on the phone that evening. The Children were worried the Father would go to gaol. When [Y] asked the Father by phone why he was chasing them in the car, the Father replied “I wanted to tell you that I loved you.”[82]
[82] At paragraph 96 of Mother’s affidavit sworn on 23 January 2014
Ms D deposes to [Y] telling her about this incident. [Y] said to her:
He (the Father) followed us in his car and tried to kill us. After, on the phone, he told me he was very, very sorry and that Mum should have stopped but I was still very scared and I cried lots in the car. Also, Mum couldn’t stop in the middle of the road.
In the same conversation [Y] referred to an earlier car accident telling Ms D[83]:
…last time he had his cold and was weird in the car, he smashed up the side mirrors and some of the glass got on me. I cried and was scared and I wanted my mum.
In the same conversation, [Y] said to Ms D[84]:
I only see my dad at a contact centre now, every two weeks, and every time I see him he asks when we are going to his house. And why don’t we ever come to his house. And I don’t know what to say because I know I will never see his house… Because he has a cold and mum won’t drive me there because of what I just told you. ….. Dad says he doesn’t have bipolar and that lots and lots of doctors and even nurses have written on pieces of paper that dad doesn’t have bipolar. So maybe he doesn’t anymore.
[83] At paragraph 39 of affidavit of Ms D sworn 24 January 2014
[84] Ibid
On 4 February 2014, the Father attended the Children’s school swimming carnival. The Principal of the school complained to the Mother at the end of the school day that the Father purchased food from the canteen and went to see the Children. When the Principal approached the Father and removed him from the Children, the Father replied that he had a right to see the Children and insisted on staying. The Principal referred the Father to a sealed copy of the orders which provided for the Father to have only very brief contact with the Children before he leaves any school event. The Principal said to the Mother “I’m fed up with this”.
On 5 February 2014, the Mother heard the Father tell [Z] on the phone that she would soon be staying at his place and they would have fun together. The Father then told [Y] that he was sorry he did not say goodbye at the swimming carnival but “the principal kicked me out.”
Despite orders restricting the content of his conversations with the Children, the Mother deposes to the Father continuing to make promises to the Children he cannot keep, including telling them to make sure he can come to their birthday parties, promising they can soon come to his place to stay, telling them about the activities he will take them to when he can see them more, telling them to keep praying that they can be together again soon, getting angry when the Children report on something he is not aware of, sobbing over the phone, and demanding the Children take the phone off speaker phone. The Father discusses his personal difficulties since separation, including his sadness at the separation, his loneliness and his financial stress. Both [Y] and [Z] have told the Mother they need to give the Father some of their own money to help him. The Father has become upset with the Children when they don’t pay attention on the phone. The Mother says [Y] and [Z] will often say “I don’t want to talk to dad.”[85]
[85] At paragraph 184 of Mother’s affidavit sworn on 23 January 2014
The Father has also attended school events, birthday parties and other events involving one or more of the Children, in breach of the interim order which permits him to attend events for the Children but only to speak to them briefly before departing at the end of the event. By way of example, on 30 July 2013 the Father spent two hours with [X] at an open day at his school, on 31 July he attended [X]’s athletics Carnival and spent considerable time with [X], and in September 2013 the Father attended [Z]’s preschool and the boys’ school and spent time with the Children, despite the provisions of the Interim Court orders.[86]
[86] At paragraphs 154 and 155 of Mother’s affidavit sworn on 23 January 2014
The Father’s conduct at the Interrelate Contact Centre
The Children started spending time with the Father at the Interrelate Contact Centre in [C] on 2 November 2013. On that first occasion, the Contact Centre notes disclose that the three children were happy and relaxed with the Father. When [X] was observed whispering to the Father, the supervisor intervened and the Father explained to [X] that he would not be going to church with the Children anymore, but when [X] cried, the Father said “it’s not up to me, it’s up to the judge.” The supervisor stopped the conversation at that point. Towards the end of the contact period, the contact Centre notes state that the family began talking about the Mother, about emailing and talking on the phone. The supervisor stopped the conversation but the Father continued to talk about emailing the Children and the Court orders. The case manager heard the conversation and stepped into the contact room to ask the topic to be changed. She said that emailing the Mother and Court orders could not be discussed at the centre. The Father ignored her direction. The case manager and the supervisor had to intervene several times before the conversation came to an end.[87] I find it noteworthy that the Children’s church leader later that day told the Mother that [X] had been crying a lot and [Y] was also upset. The Mother said while they had dinner at the church, [X] continued to cry and could not tell the Mother why he was so distressed.
[87] Exhibit 2 – Notes of 2 November 2013
On 16 November 2013, the notes disclose that the Children were relaxed and happy, that the Father shared time between the Children, and ensured stimulating play with all three of them[88].
[88] Exhibit 2 – Notes of 16 November 2013
On 30 November 2013, the supervisor was concerned about the Father’s comment to the Children “if Mummy is lenient then maybe I can see you Christmas Day”. The supervisor intervened and changed the subject. The notes disclose the supervisor’s concerns about the Father whispering, discussing the Mother, and talking to the Children about them coming to stay at his house. The supervisor intervened to stop the Father taking photos with his phone.[89]
[89] Exhibit 2 – Notes of 30 November 2013
On 14 December 2013, the supervisor intervened when the Father was discussing with the Children that he will be seeing them on Christmas Day, later stating that he was organising a supervisor. The supervisor advised the Father that he must stop talking to the Children about such matters.[90]
[90] Exhibit 2 – Notes of 14 December 2013
On 5 January 2014, the Children were all happy and relaxed. The supervisor intervened when the Father began to give his phone number to the Children and intervened again when [X] and the Father were discussing the December incident involving the Father following their car. [X] said “we weren’t really going anywhere we were just trying to lose you in the car.”[91]
[91] Exhibit 2 – Notes of 5 January 2014
On 11 January 2014 the supervisor spoke to the Father before contact commenced. The supervisor raised specific items in the Court orders that were not to be discussed to ensure the Father was aware of the restrictions. The notes say that the Father said that he understood and would abide by the Court orders.[92]
[92] Exhibit 2 – Notes of 11 January 2014
The Father’s evidence in response
In cross examination, the Father agreed that the Children’s relationship with the Mother is critical to their well-being and that it is critical that the Children have the best possible relationship with their Mother. The Father acknowledged the Mother had looked after the Children well during periods he had been absent. He said he did not think the Mother was being spiteful or malicious in limiting the Children’s time with him. However, he told Dr R that he believes all the Children are missing him terribly and want a lot more time with him.[93]
[93] At page 3 of Exhibit 1
This factor is not applicable.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is not possible in the circumstances of this case to eliminate the risk of future litigation. However, I find it likely that if the Father engages in appropriate therapy to address the issues that brought this matter to the Court, learns to self-reflect so he can see for himself how he should communicate and conduct himself with the Children, the Mother will agree to the Children spending increased time with the Father without the need for further litigation.
Parental Responsibility
Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children. Section 61DA requires the court to 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. 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:
a)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
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility[183].
[183] Section 61DA(4) Family Law Act 1975
The Mother seeks an order for sole parental responsibility, and the Father seeks an order for equal shared parental responsibility. The Independent Children’s Lawyer and Dr R support the Mother’s position.
I am not satisfied that the presumption applies in this case because there has been family violence. In addition, as a result of the findings I have made, I am not satisfied it would be in the Children’s best interests for the Mother and Father to have equal shared parental responsibility. Even though the Father has completed the Building Connections Course run by Interrelate at [C][184], the parties have no direct communication because the Mother feels harassed and intimidated by the Father’s style of communication. The Father acknowledges there is no communication between him and the Mother. The Father’s emails to the Mother were critical and derogatory of the Mother and unrelated to issues relevant to the Children’s welfare. The Father was using scripture and his interpretation of the Bible to coerce the Mother to accept his point of view.[185] The Mother therefore stopped emailing the Father in September/October 2013. Dr R says that the Father is unable to maintain boundaries when communicating with the Mother, and his manner effectively stifles meaningful communication.
[184] Annexure B of Father’s affidavit sworn on 7 February 2014
[185] At paragraph 137 of the Mother’s affidavit sworn on 23 January 2014
The Mother believes it unlikely the parties would agree on any major decision. For example, the Father was not willing to have [Y] screened for ADHD when recommended by the school counsellor, and he did not allow [X] to attend counselling with Children of Parents with a Mental Illness (COPMI). The Father would not support [X] and [Y] obtaining therapeutic assistance through the Child Adolescent Psychology Service (CAPS) when the Mother believed they needed that assistance. Since orders were made to give the Children access to these services, the Father has undermined the therapists to the Children, telling [Y], for example, that his therapist “lied” to him, and demanding that the Children tell him everything said by the counsellor. [X] apparently resolved the problem by deciding not to answer any of the counsellor’s questions. I am not satisfied the Father has the capacity for constructive meaningful communication with the Mother, and an order requiring shared decision making would be impracticable. Any change in this position seems unlikely in the foreseeable future.
The Mother will have sole parental responsibility. I accept the Mother’s evidence that after these proceedings have been finalised, she will inform the Father by post of any significant issues arising in relation to any of the Children. I accept her evidence that if the Father does gain insight and she is able to have a constructive conversation with him, she will communicate with him directly.
As there will not be an order for equal shared parental responsibility, section 65DAA(1) does not apply.
Discussion and Determination
The Father has suffered from a mental illness for at least a number of years, and according to Dr R’s provisional diagnosis, has narcissistic features in his personality. His problems impact on his capacity to relate to others, particularly the Mother. They impact on his parental capacity, on his attitude to his responsibilities as a parent, on his ability to support the Children’s relationships with the Mother, on his ability to respond appropriately to the Children, and on his ability to make child-focussed decisions for the Children. I find that the Father does not accept or understand these difficulties.
I find no evidence to support the Father’s strongly held belief that the Mother is the cause of his problems. I am satisfied that the Mother would love [X], [Y] and [Z] to have healthy relationships with the Father.
I agree with Mr Levy that the Mother has walked a difficult line between meeting the Children’s needs for a relationship with the Father and protecting them from the consequences of his personality and mental illness. I agree that it is testament to her skills as a parent that the Children continue to have a loving, valuable relationship with the Father. Dr R says that the Mother needs Court orders “which support her, to enable her to continue to parent the Children.”[186]
[186] At page 17 of Exhibit 1
Dr R’s expert assessment is that the Father does not have the insight necessary to respond to his Children appropriately. Dr R has concluded that exposure to the Father unsupervised would be highly detrimental to the welfare of the Children, in terms of their development. However, she strongly supports the Children continuing to spend time with him.
I find that the Father has shown poor judgment in his management of his own mental illness and personality difficulties. Despite his strong desire to be more involved with the Children and to spend more time with them, the Father followed none of Dr R’s report recommendations which clearly highlighted the path the Father should take towards achieving that end. Neither did the Father follow his own treating psychiatrist’s advice when, in June 2013, Dr B recommended that the Father remain on his medication and engage in therapy. The Father believes he has been cured of whatever condition he may have suffered, and that as long as he maintains his healthy lifestyle, he needs no medical or therapeutic assistance. He has rejected Dr R’s opinion on the basis that she is biased against him. He says he would agree to see Dr U, but on a "without admissions" basis. The Father has been either unwilling or unable to acknowledge that it is his own behaviours that have caused the need for the Children to be protected when in his presence. In addition, he has been unwilling or unable to take any steps to remedy the situation.
I agree with Dr R that it is far from satisfactory that the only safe way the Children can see their Father is infrequently and under close supervision. However, the responsibility to change this situation lies squarely with the Father. Unless and until the Father’s position and actions genuinely change, I agree with Dr R that the Children must remain supervised when in the Father’s care and spend limited time with him.
I have given consideration as to whether the Children would benefit from the present alternate week time arrangements continuing, or whether time should be reduced to every three weeks as recommended by Dr R and proposed by the Mother and the Independent Children's Lawyer. I raised the question with counsel during submissions. On the side of maintaining the current arrangements, I have regard to the positive changes which have been observed in both the Children and the Mother since the supervised time has been occurring every second week. The Children’s poor behaviours have settled considerably, the boys’ school reports demonstrate their improvement at school and Ms D remarks on the positive change in the Mother’s and the Children’s demeanour and presentation. I have also considered the possible reaction of the Father and the Children to time being reduced in circumstances in which the Father has been anticipating, in the presence of the Children, that time is likely to increase after this hearing. On the side of reducing time to 3 weekly is the Father’s continued failure/inability to adhere to the interim orders about avoiding certain adult topics of conversation, including discussing activities with the Children outside the terms of those orders, blaming the Mother, and the adverse impact of these ongoing interactions on the Children. Mr Levy and counsel for the Independent Children’s Lawyer submit, in accordance with Dr R’s recommendation, that it must be in the Children’s best interests for this emotional harm to be minimised. Dr R’s evidence was unequivocal, and her opinion did not change during cross-examination, despite being aware that the Children had been spending fortnightly time with the Father for many months, that the Children’s time with the Father should not occur as frequently as fortnightly until the Father had taken the steps set out in her report recommendations. Dr R is confident that this regime will maintain the Children’s relationships with the Father and allow the familiarity between them to continue, by them having the opportunity to share interests and activities. She says that this time will ensure a platform remains so that if more time with the Father is appropriate in the future, the relationships can grow from that foundation.
I am persuaded that Dr R's opinion should prevail. I found no sign at hearing of the Father's insight improving and I accept Dr R's view that the further serious damage to the Children likely to be caused by the Father's interactions with them should be minimised. I have decided to reduce the two hourly supervised period to every 3 weeks, until the Father has demonstrated a marked and sustained improvement in his capacity to engage with the Children appropriately.
The Mother asks that she be permitted to suspend the Children’s time with the Father on one occasion each year, to give the family an opportunity for a 4 week holiday. She also asks for the Children to be permitted to travel overseas without the consent of the Father. I find her proposals in this regard to be in the best interests of the Children and have made orders accordingly.
Dr R supports the Children having time with their Father around Christmas, birthdays and other special occasions, arrangements supported by the Mother if supervision can be arranged. I have made orders to enable that additional time to be accommodated either inside or outside the Contact Centre.
Dr R does not recommend that the Children spending time with the Father be conditional on the Father consulting a psychiatrist or complying with any treatment regime. In her opinion, it is unlikely that the Father will engage in the kind of therapy which can help him, so no such condition should be imposed. I accept Dr R’s opinion. Such a condition was not sought by the Mother or by the Independent Children’s Lawyer, and it will not be imposed on the Father.
I have given consideration as to where the Children’s time with the Father should occur. Dr R recommends that time be spent away from a Contact Centre in a more natural environment, so the Children can enjoy rewarding experiences with the Father, out in the community.
I agree with Dr R that the Children would have greater enjoyment with the Father and have a richer experience with him, if time occurred outside a Contact Centre. I agree that, even though the evidence clearly establishes a need for the Father’s verbal interactions to be closely monitored, meeting in a restricted Contact Centre environment with every word of the Father being audible to the supervisor, would be difficult to sustain in the long term. Dr R says it would be “excessively restrictive”[187] for the supervisor to be able to hear every word the Father says.
[187] At page 45 of the transcript of Dr R’s evidence of 12 February 2014
The Mother and the Independent Children’s Lawyer do not propose supervision occurring outside the Interrelate Contact Centre, although in cross-examination the Mother expressed no opposition to using the agency known as [P] to supervise in the future. Unfortunately, there are significant practical issues which limit the options available to the Court in this regard. After many months of arranging private supervision during 2013, the Mother found herself unable to find anyone willing or available to supervise the Children’s time with the Father. On the evidence available, I am not satisfied this situation is likely to change in the foreseeable future. In addition, the evidence of both parties is that neither can afford the services of the supervising Agency, [P], which the Court is told is $240 for a minimum of three hours including transport fees on a Saturday, with additional fees for a feedback report, and an additional cost on a Sunday.
The evidence discloses that time at the Contact Centre has worked reasonably well from the Children’s perspective. However, those arrangements have only been in place since November 2013 and I do not anticipate time in the Contact Centre continuing to work well for the Children indefinitely. Even though the Court was advised that the Interrelate Contact Centre agreed to providing their services on an indefinite basis, I am not satisfied this can be guaranteed. I have therefore made orders allowing for supervised time to occur outside the Contact Centre, but such arrangements will only be practically possible if the Father is able to meet the fees of a supervising agency or the Mother is able to nominate an affordable alternative private supervisor. I have made orders for each party to undertake an assessment at [P] or an alternative supervising agency in the event time is to take place outside the Contact Centre. The Mother will be permitted to provide the Director of the Agency with a copy of Dr R’s report and a sealed copy of these Orders, to assist in the intake process.
In relation to telephone time, Dr R recommends that all three Children engage with the Father together each week by visual electronic means (Skype, or similar), rather than one on one phone time with each Child[188]. She said the Mother should keep an ear out as to what is happening when the Skype call is taking place but she should not be intrusive. Dr R believes it will be easier for the Children if all of them are engaged in the communication together. They can show the Father items from school, or drawings they have done, or anything they want him to see. The Mother will be required to initiate skype/face to face electronic communication between the Children and the Father each week, as Dr R recommends, or a telephone call if skype is impracticable at any time. If the Father raises inappropriate topics with the Children, I find it likely that the Mother will reasonably terminate the call in the interests of the Children. I have limited the length of the call to 15 minutes as the evidence discloses difficulties for the Children when time has been unrestricted.
[188] At page 46 of the transcript of Dr R’s evidence on 12 February 2014
The Father may choose to send letters, cards and gifts to the Children, which he will be free to do, but the Mother will decide whether the content of any such material is appropriate before giving it to the Children.
As already noted, the Mother will have sole parental responsibility for the Children. The parties are unable to communicate in any meaningful way, and direct communication between the parties, has, for the most part, been unhelpful to the children. I have decided the Mother will not be required to communicate directly with the Father, and will not be required to provide him with her residential address or mobile telephone details. The Mother will, however, be required to provide the Father with a postal address, to enable him to send the Children letters or gifts, on no more than a weekly basis.
Given the many examples of the Father’s inappropriate communications with the Children, the Mother and the Independent Children’s Lawyer seek a continuation of the interim orders which prohibit the Father discussing certain kinds of matters with the Children and allowing for a suspension of the Children’s time with the Father if such topics are initiated by the Father. These include discussion of adult issues and making plans with the Children for periods outside the terms of the orders. The Mother and the Independent Children's Lawyer also seek a prohibition on the Father whispering to any of the Children, or speaking in a tone inaudible to the supervisor.
There is a limit to what a Court can do to control the content of conversations between a parent and a child, even in a supervised setting, and difficulties are likely to arise in relation to enforcement of such orders. However, in the circumstances of this case, I am persuaded that the Children are likely to benefit from orders along the lines proposed. There is evidence that when the Children were privately supervised, the Father would remove himself from the supervisor’s hearing, and whisper to the Children; there is evidence that the Contact Centre staff, in very recent times, have found it necessary to put an end to inappropriate conversations initiated by the Father. I find that those interventions have been helpful to the Children. Without restraints on the Father, I am not satisfied that those interventions will necessarily occur. I have made restraints accordingly.
I do not, however, support the supervisor being compelled to suspend the Children’s time with the Father if the Father strays into the wrong subject area, particularly given the limited time the Children will spend with the Father, and their need for regular time with him. The supervisor will need to exercise his/her judgment as to whether the Father is so seriously in breach of the restraints that time should stop altogether. I agree with Dr R that the Children are likely to be distressed and confused if their limited time with the Father is suddenly terminated.[189]
[189] At page 28 of the transcript of Dr R’s evidence of 12 February 2014
I do not agree with the Father’s counsel that it is unrealistic to prohibit the Father from discussing adult issues with the Children because there may come a time when such issues could well be appropriate topics of conversation, particularly with [X]. Unfortunately, the Father is yet to learn/understand what is and what is not appropriate. Once he develops this ability, I am satisfied this problem is unlikely to arise.
I have made orders restraining the Father from approaching the Children outside the times provided in these Orders, and from attempting to contact the Children, except as ordered. The Principal of the Children’s schools will have a copy of these Orders as will the Director of the Contact Centre. I have restrained the Father from denigrating the Mother or her family, from discussing adult issues or from discussing these proceedings with the Children.
Dr R advised that the Children have counselling with the organisation COPMI (Counselling for Children of Parents with a Mental Illness) health, to guard against the risks highlighted by Mr Bell, in relation to resenting their Mother in the future for limiting their time with the Father. Dr R said the Children may also need regular counselling if they exhibit distress, as suggested by the Father’s counsel, so that they can express their feelings and thoughts. If the Children’s counsellor believes at any time that the family would benefit from family therapy, because the Children become symptomatic, then family therapy should occur. Dr R says that the onus will be on the Mother being able to accurately perceive and evaluate whether the Children are progressing satisfactorily or whether they are symptomatic and need some kind of intervention. As the Mother will have sole parental responsibility for the Children, she will be at liberty to make those arrangements. I have included an order to permit the Mother to provide a copy of Dr R’s report and a copy of these Orders and Reasons for Judgment to her own counsellor and any counsellor engaged for any of the Children.
Dr R was unable to predict whether or when supervision might safely be lifted, but said it would be, at least, a number of years, and then only if the Father has addressed the issues which currently necessitate the Children’s time with him being supervised. Dr R made clear that the Father needs to engage in robust, open, frank therapy with a treating psychiatrist who challenges him. The Father needs to be honest “about the processes in his head”. He needs to give his treating psychiatrist an accurate history. Dr R was pessimistic about the Father’s capacity and/or willingness to take those steps. In light of Dr R’s assessment, the Mother and the Independent Children’s Lawyer ask the Court to make a long term supervision order of an indeterminate length, with no specific mechanism for review. The Father’s counsel makes no submission as to how the Court can order a time for review in these circumstances.
I have considered the authorities[190] which caution against a Trial Judge making an indeterminate supervision order, without a fixed time for review, particularly if the supervision is to take place in a Contact Centre, as proposed by the Mother and the Independent Children’s Lawyer.
[190] See for example Malburon & Waldlow [2013] FamCAFC 191; Slater & Light [2013] FamCAFC 4
In Malburon & Waldlow,[191] the Full Court was critical of the Trial Judge for not allowing the Mother liberty to apply for discharge of the supervision requirement and leaving the matter entirely in the discretion of the Father, especially as the Trial Judge in that case had raised the possibility of supervision being lifted when the child was older.
[191] [2013] FamCAFC 191
In Champness & Hanson[192], the Orders of the Trial Judge provided for all the Children’s time with the Father to be supervised, and no provision was made for the Father to make application to vary or discharge the requirement for supervision. The Court expert there said that only supervised time between the Children and the Father could be “supported presently” and the Father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision.”[193] The Full Court said that[194]:
…it is sufficient to say that a number of authorities highlight the difficulties associated with such orders, especially when the supervision is to be provided by a children’s contact service… However, as Fogarty and May JJ said in Re C and J (1996) FLC 92-697, “The Court has the widest discretion to make whatever orders are appropriate in the best interests of the Child by way of access or contact. Supervision is one option…”
We …acknowledge that the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as H v K [2001] FamCA 687, is that the parties are left with “no mechanism for moving forward” and that the parent seeking to remove the supervision requirement will have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979) FLC 90-725.
We do not accept the Rice v Asplund test would prevent the father from seeking to discharge the supervision requirement. The basis of the order was the acceptance by his Honour that the father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision”. Accordingly, should the father bring an application supported by plausible evidence suggesting he had addressed these issues, we have difficulty in seeing how Rice v Asplund could prevent him having his application heard…
…although it would have been open to his Honour to have built in a “review mechanism”, we are not satisfied he erred in failing to do so.
[192] [2009] FamCAFC 96
[193] At paragraph 49
[194] At paragraph 215 to 225
In Moose & Moose,[195] the Full Court allowed an appeal where the Trial Judge had made orders for indefinite supervised contact in a children’s contact centre and no provision was made for when such supervision would end or how the father could ask the court to make different orders. Her Honour May J said[196]:
In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother's emotional reaction to the children seeing their father which was consistent with the evidence (T/s p 135) his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant.
[195] [2008] FamCAFC 108
[196] At paragraph 10
In RG v JR[197], the Full Court dismissed an appeal when the Trial Judge ordered limited indefinite supervised time, having accepted the expert’s opinion that the Father “suffered from a psychotic illness, and his lack of insight into the nature of the illness and the way it has manifested itself.” The Full Court said that[198]:
We accept that in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests. However, in this case, the trial Judge rejected the Child Representative’s proposal for contact to take place in a children’s contact centre but rather made orders for contact to occur in a more natural environment. We accept, in the light of the expert evidence, the trial Judge did not err in the exercise of his discretion in providing for ongoing supervised contact.
[197] [2006] FamCA 293
[198] At paragraph 107
The Court must make orders it determines to be in the best interests of the Children. There is nothing in the law to prevent a Court, in the exercise of its discretion, making a supervised contact order of indeterminate length, despite the practical difficulties of such an arrangement, but the authorities make clear the Court must give clear reasons for doing so, and if possible, allow the supervised time to occur outside a Contact Centre in a more natural environment.
Dr R says that the Children need to maintain the strongest relationships possible with the Father, consistent with their physical and psychological safety. Dr R acknowledged that supervised time is restrictive and carries a number of risks, including that the Children may later blame the Mother for curtailing their time with the Father with consequences for their relationships with the Mother, given the limitations of supervised time. But Dr R emphasised that the focus should not be on the supervision per se, but on the reasons the supervision is needed. She said that:[199]
…the right circumstances have to be present for a good relationship with a parent…
And the right circumstances are the parent being attuned to that child, aware of how his or her behaviour will impact on the child and – and therefore the child’s development is enhanced. When the parent is negligent in those areas... Then it is not a good thing for the child to be spending a lot of time with such a parent.
[199] At page 44 of the transcript of Dr R’s evidence of 12 February 2014
I have given careful consideration as to whether the Father should be given the opportunity by way of a review mechanism for the supervised arrangements to be reconsidered in the future.
The Father’s counsel submitted that it was not in the Children’s best interests for the Court to leave the position of the Children’s time with the Father supervised in an open ended way. Counsel submitted that if the Court did not accept his primary position of unsupervised time, it should make only interim orders. Counsel did not specifically address the Minute of Orders proposed by the Mother and the Independent Children’s Order but in general terms, despite the orders formally sought, sought an outcome different from an arrangement of supervised time on an indefinite basis. Counsel argued strongly for the Court to reduce the stressors on the Father by giving him some hope that he will be able to spend unsupervised time with the Children in the foreseeable future, even if not immediately.
The Mother’s counsel and the Independent Children’s Lawyer opposed the making of interim orders. Mr Levy submitted that, in effect, the Father has already had the benefit of an interim order. Counsel submits that Dr R’s report was released to the Father in April 2013, and since then, the Father has had ample opportunity to comply with the steps she recommended to assist him. Counsel submits that the Father has not chosen to take up that opportunity. Mr Levy argues, supported by Ms Eldershaw for the Independent Children’s Lawyer, that it is not in the Children’s best interests for this litigation to continue.
The Father’s counsel made no submissions as to how the Court could fix a time for review on the basis of the evidence in this case.
I agree with Dr R that it is a test for the Father to prove that he is able to contain himself in his interactions with the Children. I agree that the 3 weekly regime of contact should remain in place for a number of years, to give the Father time to demonstrate his ability to function well enough to parent the children unsupervised. Dr R said it should then be open to the Father to apply to the Court in some years’ time, when there could be a review of the evidence to see whether the Children have flourished, to check whether the Father’s mental health has remained stable and whether the Mother has become less stressed and more trusting. Dr R says that it is important that the Mother can trust the Father to respond and care for the Children in an appropriate way.[200]
[200] At page 45 of the transcript of Dr R’s evidence of 12 February 2014
The Mother says it would give her some reassurance if the Father were regularly consulting a treating psychiatrist, but said she needs to see evidence of the Father’s insight into the impact of his behaviour on the Children. Until then, she will not support the Children spending unsupervised time with him. Neither will she support the Children initiating other forms of communication with the Father unless he is well. She very much wants and hopes the Father’s level of insight will improve.
If the Children's anxieties have settled, and the Father is compliant with medication, has had no relapses in his mental health, has had no inappropriate communications with the Mother, and can then demonstrate an understanding of what he can and cannot appropriately say and do with the Children, (which would mean no concerns from the Contact Centre or other supervisors about the Father's interactions with the Children), and therefore of how it would be a significant change in the circumstances which presently pertain, I find it likely the Mother would support a lifting of supervision. If she did not, however, it would be open to the Father in such circumstances to make an application to the Court for a review of the supervised parenting arrangements[201]. I accept Dr R’s view that it will be years before such an outcome is likely and to fix a particular time frame is not possible at the present time, nor in the best interests of these Children.
[201] See Champness & Hanson [2009] FamCAFC 96 where the Full Court said that “should the Father bring an application supported by plausible evidence suggesting he had addressed these issues, we have difficulty seeing how Rice v Asplund could prevent him having his application heard.”
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X], [Y] and [Z].
I certify that the preceding two hundred and ninety-one (291) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 8 May 2014
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