HOLMEN & FARLEY

[2010] FamCA 813

FAMILY COURT OF AUSTRALIA

HOLMEN & FARLEY [2010] FamCA 813

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Holmen

RESPONDENT: Ms Farley

FILE NUMBER: DGC 3912 of 2009

DATE DELIVERED: 15 SEPTEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: DESSAU J

HEARING DATE: 30, 31 AUGUST & 3 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR A COMBES

SOLICITOR FOR THE RESPONDENT: MCGINDLE DALGLEISH

Orders

1. That the father’s application filed 19 November 2009 is dismissed.

2. That the father is restrained from filing or serving any further parenting application without first obtaining the leave of a court having jurisdiction under the Family Law Act 1975.

3. That the question of the mother’s costs of this application shall be reserved for 14 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3912  of 2009

MR HOLMEN

Applicant

And

MS FARLEY

Respondent

REASONS FOR JUDGMENT

The Application

1. Mr Holmen (“the father”) wants to resume seeing his 7-year-old son J, after nearly 3½ years. 

2. Brown J made final parenting orders in March 2008.  Apart from being allowed to send cards or gifts for Christmas and for the child’s birthday, (passed on to the child at the mother’s discretion), the father was not to have any contact with the child, and was restrained from being within 100 metres of him or the mother.

3. Those orders followed an eight day hearing.  Brown J concluded that face-to-face contact between the father and the child would pose “an unacceptable risk to [the child’s] emotional and psychological development and physical safety”, as a consequence of the father’s “anger, aggression and poor impulse control.”  (See para 370). 

4. Brown J noted (at para 372):

   Were the father to undergo psychiatric assessment and treatment, to good effect, he may be able to play a meaningful role in his son’s life. ...

5. The father now seeks to persuade the Court that he has undertaken such treatment “to good effect”, sufficient to constitute a changed circumstance, so that the Court should consider afresh the child’s best interests.

6. The father is 39 and unemployed.  He and the mother, also 39, lived together briefly before the child was born in July 2003.  The child lives with his mother who has sole parental responsibility for him. 

7. The father’s Initiating Application in this case was filed in the Federal Magistrates’ Court on 19 November 2009.  He seeks orders, amongst others, for the discharge of Brown J’s orders of 28 March 2008.  He seeks equal shared parental responsibility, that the child live with the mother, and that he spend time with the father as agreed or as ordered by the Court.  This is the hearing on the preliminary question of whether or not the Court should entertain an application to change Brown J’s orders.

8. His application is supported by his affidavit filed the same day, and two affidavits of a psychiatrist Dr U, filed 23 March and 29 April 2010. 

9. He and Dr U gave evidence and were cross-examined.   

10. The mother filed a Response on 21 January 2010 seeking that the father’s application be dismissed.  It is supported by her affidavit filed the same day.  Most of her affidavit is irrelevant in that she recites matters historical to Brown J’s judgment, or offers arguments rather than evidence.  She does swear that she has felt safer, more settled, and a better parent without the father in her life.  They are important factors in deciding parenting orders, but not strictly pertinent to the limited issue before me as to whether the father has changed sufficiently to even warrant re-considering the orders.  That issue requires only his evidence and the evidence of any expert upon which he relied.  Accordingly, the mother was represented by counsel in the course of the hearing, but she was excused from attending Court. 

11. The father represented himself and did so with what appeared to be a reasonable understanding of the process.  He had not fully understood when or how to tender some documents, but a reasonable concession by Counsel for the mother nevertheless enabled that material to come into evidence.

12. The case had started before me on 29 March 2010.  Having become aware that the father’s treating psychiatrist, Dr U, had never seen a copy of Brown J’s Reasons for Judgment, I ordered that a copy be sent to him, with a request for a written report updating his opinion.  That occurred, and the matter was listed for this two-day preliminary hearing. 

The Principle

1. The principle for the Court to apply in this case is well established.  In Rice and Asplund (1979) FLC 90-725 the Full Court referred to the basic principle that a court should not lightly entertain an application to re-open an earlier parenting decision: to do so would invite “endless litigation”. Accordingly, the Court would need to be satisfied by the applicant of “some changed circumstance” to “justify such a serious step”. A finding would need to be made of:

   “…circumstances which require the Court to consider afresh how the welfare of the child should best be served. …”

The father’s Affidavit

1. Although the father was unrepresented in the course of this preliminary hearing, he was represented at the time of the first appearance before me, and lawyers had drafted the application and affidavits on his behalf. 

2. In his affidavit, he dealt with the relevant findings made against him by Brown J, what her Honour said about the future of any proceedings, and the steps undertaken by him since those orders were made.

3. He noted that her Honour found that he had engaged in violence during his relationship with the mother, and that on numerous occasions he had “acted in an aggressive, abusive and violent way, frequently in [the child’s] presence” (see para 272).

4. He also acknowledged that his history would have reasonably created in the mother’s mind a concern as to her well-being, and the child’s well-being in his company.  He conceded that he had been ignorant of the effect that his behaviour would have or could have on the child.

5. He referred to paragraph 345 of Brown J’s judgment, in which she had paraphrased the expert evidence of psychiatrist, Dr E as follows:

   Dr [E’s] evidence was that the father is unable to accept any conduct towards [the child] with which he does not agree and that it is highly likely he will have conflict with those in authority for this reason.  This has the capacity to significantly impact on [the child’s] sense of settling into school or other situations.

6. The father referred to Brown J’s findings of his inability to solve problems or have strategies in place to deal with questions of frustration and anger, and that he would discredit or blame others to deal with many of those issues.  He quoted Brown J’s finding (at para 349) that:

   The evidence shows that the father has no problem solving strategies, save complaint and abuse.  He has no qualms about discrediting the reputations of those with whom he disagrees, by spreading negative rumours or confronting third parties, close to the person with whom he is in dispute.  He invalidates the feeling and perspectives of others, elevating the importance of his own feelings, perspectives and complaints.

7. The father then set out in his affidavit the understanding that the Court must be satisfied of changed circumstances before there would be any basis to interfere with final parenting orders.  He said he was aware that if unsuccessful, he could also be declared frivolous or vexatious and barred from making further applications to the Court to vary orders unless he first obtained the Court’s permission.  In that respect, he referred to paragraph 360 of Brown J’s judgment where her Honour said:

   On the other hand, were proceedings to be reissued by the father without any evidence of psychiatric assessment and treatment, or evidence of other new facts and circumstances, one could anticipate the dismissal of the application and, potentially, an order pursuant to section 118 of the Family Law Act 1975.

8. He noted that Brown J had said that if he addressed his problems and made genuine headway, it would be in the child’s interests to resume a relationship with him.  

9. The father said that he anticipated pre-conditions such as a psychiatric assessment, a report from his treating psychiatrist, the preparation of a Family Report, or some sort of initial supervision for his time with the child.

10. He swore that he had completed an anger-management course, and had been seeing Dr U since March 2009.  He said Dr U had diagnosed him as having depression and post-traumatic stress disorder and that he was taking medication in the form of anti-depressants.  He said he had attended 40 sessions with a psychologist, Mr S, between May 2008 and when his therapy started with Dr U. 

11. The father finished his affidavit by expressing his strong desire to spend time with his son, by referring to Brown J’s finding that the child loved him, and that there were potentially adverse consequences for the child if his father could not play a meaningful role in his day-to-day life. He also asserted an understanding that Brown J’s judgment was clearly based on the way in which he “presented” during the trial, upon the evidence, and upon his “demeanour”.  However, he swore that he had now addressed those issues and reached a stage where he could offer the child a meaningful relationship.

Dr U’s Affidavits

1. The father’s case was supported by Dr U’s first report, dated 11 March 2010.  Dr U noted that since an initial assessment on 3 November 2008 he had seen the father on 13 occasions.  He noted the father as having attended sessions willingly and regularly and that he had adhered to the treatment recommendations. 

2. Dr U swore that the father was referred to him for “reactive depression with inability to cope”, and that he had reported a history of “low mood, anxiety, irritability and poor sleep since being denied access to his son…”  The father also reported:

   Mild obsessional tendencies (need for orderliness, impulsivity, over-spending) and being suspicious of other people’s intentions which he often regarded as malevolent.

3. Dr U observed:

   …a pattern of attitudes and behaviours which suggest that he does have a difficulty accepting social rules at a face value and he will often challenge these rules if they do not conform to his own belief system.  He admitted to having a tendency to develop relationships with “troubled women”.  Nevertheless he is able to let go of the past relationships and the main reason for his persisting, negative attitude towards [the mother] seems to be his perception of her as someone who deliberately and malevolently prevents him from seeing his son.

4. Dr U noted that there was “no denying” that the father has a “tendency to deal with problems in an aggressive rather than an assertive way” but:

   …there are also signs that his personality is slowly maturing and over the last 18 months he showed an increasing ability to acknowledge his short-comings and work on them.

5. Dr U noted that it seems that the father’s impulsivity in interpersonal relationships with women and with figures in a position of authority has been “compensated for by extreme perseverance, persistence and calm as far as his relationship with [the child] is concerned.”

6. Dr U noted that other signs of his “increasing maturity” include long-term abstinence from drugs and alcohol, “the absence of threatening or violent behaviour”, attempts to find employment, and engagement in psychological treatment.

7. Dr U diagnosed the father as satisfying the diagnostic criteria for an Adjustment Disorder with Mixed Disturbance of Emotions or Conduct.  He also exhibited certain personality traits which are “enduring and maladaptive” but did not satisfy the criteria for a personality disorder.  They included:

   …Suspiciousness of the motives of others, a tendency to disregard commonly accepted rules of social conduct, instability in interpersonal relationships, impulsivity and hypersensitivity to negative evaluation.  He also shows a degree of preoccupation with orderliness, perfectionism and control.

8. Dr U also noted that the father exhibits a number of positive personality traits such as “the capacity for caring, persistence and the capacity for expressing remorse.” 

9. Under the heading “Progress”, the psychiatrist noted that the father had experienced mild to moderate symptoms of anxiety and depression, that medication offered little benefit and was eventually discontinued, and that his depressive symptoms stemmed mainly from his frustrating efforts to see the child and from difficulties finding permanent employment.  Dr U wrote:

   To my knowledge [the father] during this period, has not engaged in any anti-social behaviours, has abstained from drugs and alcohol, and has been actively involved in therapy.

10. In Dr U’s conclusions, he observed that although there had been a “pattern of volatile relationships” with women and with people whom he perceives as standing in the way of his having a bond with his son, or who have “persisted and thwarted his attempts to fulfil his role as a father”, there has never been any concerns with his nurturing relationship with the child.

11. Dr U concluded that:

    …[the father’s] anxiety and a sense of frustration is perpetuated by past allegations of violence made by his former partner [the mother].  He feels that his tendency to externalise his anger through aggressive behaviour is at times, a way of defending himself against his former partner’s aggression expressed through emotional blackmail and unsubstantial accusations.  In other words he has found himself in a situation where he is being judged on the basis of his past anti-social acts, which he is not denying, and what he regards as fabrications made by his former partner.  He simply has to prove himself innocent without being found guilty.

12. Dr U said that the father had shown the ability not to allow these negative assumptions and predictions to distract him from pursuing his long-term goal of playing a positive role in his son’s life.  He has shown signs of dealing effectively with his past personality flaws and Dr U said that he was not aware of any reasons, “on psychiatric grounds alone”, why he should not have access to his son. 

13. Dr U was of the opinion that having an on-going and stable relationship with his son would allow the father to further consolidate his personal strengths and “alter his old, maladaptive ways of coping with difficulties in his life.” 

14. I shall return to observe what material Dr U was privy to when he prepared that report.  As noted, he had not read Brown J’s Reasons for Judgment.  I wanted him to have that opportunity.  According to his affidavit filed on 29 April 2010, he did so, and he filed a “supplementary report” dated 20 April 2010. 

15. Dr U’s supplementary report was almost identical to his first.  Most changes related to relatively small details of history.  For example, in the second report, Dr U added under “Medical History” that the father had in the past had a diagnosis of skin cancer.  He amended various other details under “Personal History”.

16. For the purposes of assessing Dr U’s evidence, I shall return to the differences between the two reports, but for current purposes I note that overall Dr U did not analyse or even refer to any aspect of Brown J’s Reasons for Judgment in his second report. 

Cross-examination of the father

1. A number of aspects of the father’s evidence, in the course of cross-examination, raised concern. 

2. First, although the father said he undertook intense counselling with a psychologist, Mr S, seeing him at least 40 times between May 2008 and about March 2009, Mr S was not produced as a witness.  The father’s case was the poorer for that.  The Court could not hear first-hand of that counselling process or why it stopped. 

3. The father’s account was that he became dissatisfied with Mr S’s counselling when he started to use alternative therapies such as astrology.  He said he complained about Mr S to the management at the centre in which he consulted, that Mr S was sacked, that he is no longer registered with the Psychological Board, and could not be located. 

4. The father produced a letter (Ex. F13) from the Counselling Services Centre, dated 21 July 2009.  The letter advised him that Mr S was “no longer working at our practice,” apologised for any resulting disruption, and encouraged him to contact the Centre for any further assistance.  The letter made no reference to any complaint by the father, or any untoward circumstances surrounding Mr S leaving that practice. 

5. The father also tendered a short sequence of emails (Ex.F14) to show his former solicitor’s efforts to contact Mr S through the Psychologists’ Registration Board.  The emails showed that the Board sent an address and telephone number to the father’s former solicitors.  The Board indicated that Mr S “may no longer be contactable by phone”, but said that if there were any further difficulties in contacting him, there were other steps that the Board could take.  There was no reference to Mr S having been de-registered.  The father produced no proof as to other steps taken to contact him.  There was no copy letter to Mr S, nor any copy correspondence with the Board, to ascertain further details. 

6. He did produce a document entitled “Psychological horoscope analysis for [the father], born […] 1970” (Ex. F15).  He also tendered a “Short Report” from a website, as part of the same exhibit.  The only reference to Mr S on those two documents was on the second document, dated 19 September 2008, where it noted “Your name: [Mr S] – login/logout”. 

7. Those documents could give some support to the father’s claim that Mr S may have discussed astrology with him.  However, in the absence of hearing from Mr S I can make no finding about that, or whether that – or something else – was the cause of the father’s breakdown in his counselling relationship with Mr S. 

8. It is a gap in the father’s evidence that a counsellor who saw him on so many occasions was not called.  The evidence could not satisfy me that all steps that could have been taken to locate him, had in fact been taken.  That raises the inference that Mr S would be a witness who would not give evidence favourable to the father’s case.  

9. I was concerned that, according to the father, he then saw between six and eight counsellors before striking the appropriate “rapport” with one, being Dr U.  Again, none of the other counsellors was called.  It is a high number of counsellors to see before finding a suitable one.  It raises at least a suspicion that he was “shopping” for a counsellor who would say what he wanted to hear.

10. The father was cross-examined about a number of incidents or tumultuous relationships since the last hearing.  The first related to a former girlfriend, Ms P.  The second related to a neighbour, Mr C.  The third related to a woman he met on the internet, Ms I.  And the fourth related to an incident in a lawyer’s office in June this year.  I need to look at each one of those incidents or relationships separately, and cumulatively. 

11. It seems that at about the time of the last orders, the father was in a relationship with Ms P.  He said it was a short relationship of about one month.   

12. The father described Ms P as a “very troubled” woman, a diagnosed schizophrenic, unstable, on drugs, aggressive at times, and someone for whom he had concerns, given her mental health problems.  He said effectively that although he tried to help her, he had recognised the need to extricate himself from his relationship with her.  He had a history of relationships with “troubled” women, so he regarded this recognition as progress on his part. 

1. What the father’s evidence had not revealed, until he was cross-examined, was that the relationship in one form or another persisted well beyond a month.  Moreover, on 4 April 2008 he was arrested by police in Ms P’s home and charged with burglary.  On 7 April 2008 the police applied for an intervention order on behalf of Ms P, and on 25 June 2008 a two-year intervention order was made in her favour against the father in the State Magistrates’ Court.

2. The father said that on 4 April 2008 he was at Ms P’s home by invitation.  It is fair to observe that it appears the police did not charge him ultimately in relation to burglary.  It is also fair to note from the complaint and summons in relation to the intervention order, that although Ms P had arrived home and found him in her house when she did not want him there, she made no allegation of assault, theft or damage. 

3. In cross-examination, the father agreed that a breach of the intervention order was alleged against him on 27 August 2008.  It seems Ms P alleged that he had committed a robbery on her.  It also seems that the matter either did not proceed, or did not result in any finding of a breach on his part. 

4. Otherwise, the father claimed that he spent considerable time trying to help Ms P, and that he worked with DHS in trying to protect her children.  It was clear from documents he produced that he had given a great deal of information to DHS about Ms P and her behaviour, and as to concerns for the welfare of her children. 

5. He tendered and relied upon a document recording what he told DHS, (Ex. F4) in late 2007 and early 2008, about Ms P.  In addition to many expressed concerns about Ms P’s behaviour, there were several references to Ms P having made complaints against him in early 2008 for “abusing” her.  The notes also recorded that at one point the father stated, “I smashed her windscreen for her own good, it was cracked and she had no plates on the car, I didn’t want her to get into any trouble.”  The date of such an incident was not clear on the face of the material.  The DHS worker was not a witness.  The father was not cross-examined about it because he produced the material at the end of the case. 

6. Although the evidence does not lead me to conclude that the father was charged with burglary or that he was found to have breached the intervention order, it is sufficient to satisfy me that since the last hearing, he was involved in a tumultuous relationship with a troubled woman – for a period well beyond a month – and an intervention order was taken out on her behalf against him. 

7. The father has also been embroiled in an on-going dispute with his neighbour, Mr C.  He said that on Boxing Day 2008 Mr C attacked and damaged his home, bashing it with a baseball bat.  He said that Mr C suffered mental health problems, and “went berserk with the bat on my house” just because he had asked Mr C to turn down some music.  He said that he called the police, although it seems the police did not charge Mr C. 

8. There were intervention order proceedings between the two men.  The Magistrates’ Court records show that on 3 June 2009, the neighbour’s complaint against the father was refused, but the father obtained an intervention order against the neighbour to last for one year. 

9. In their respective complaints, each had complained about the other’s behaviour.  The father set out the verbally aggressive behaviour of his neighbour and the attack on his house.  He referred to threats to kill, and that Mr C was “schizophrenic” and did not take his medication.  For his part, Mr C complained that the father’s behaviour had become “harassing” since he had refused to attend court as a character witness for the father, and since he refused to collect his unregistered car for him while he was in custody.  He referred to an incident when the father “abused him” in front of the real estate agent who acted on behalf of the landlord of the adjoining properties occupied by the two men. 

10. Although clearly the intervention order was ultimately made in the father’s favour and not Mr C’s, I note two things. 

11. First, in his complaint dated 19 January 2009, the father stated:

    I haven’t seen my five y/o son for a couple of months but hope to have him visiting my home again in the near future and I am concerned that the respondent’s attacks on my property are usually around the area of my son’s bedroom.  I need an order for my safety, the safety of my son should he visit in the future and to prevent further damage to my property.

12. That was not a truthful account to the Magistrate.  At the date of that complaint, the father had not seen his son for several years, and was bound by a relatively recent Court order not to see him at all.  The prospect of the child visiting his property “in the near future” at that point was unrealistic, far-fetched, and not something he could have honestly sworn.  Yet he applied for and obtained an intervention order for the child as well as himself.

13. Secondly, early in his evidence before me, the father said that he had “chosen” to move away from Mr C in October 2009, to “remove himself” from those “problems”, and because he “wanted a change of scenery”.  Implicit in that account was that he had demonstrated a capacity to remove himself from an angry and aggressive situation.  However, it was not an accurate reflection of what occurred.

14. When cross-examined about it, it became apparent that after the incident when the real estate agent had attended the premises, she served the father with a Notice to Vacate.  The father then said that he made a complaint to VCAT, and ultimately the case was resolved, with the landlord withdrawing the Notice to Vacate, and paying him three weeks’ “compensation”.

15. Documents then tendered by the father (Ex. F9) showed that although the case was indeed resolved, and although the landlord, via the agent, had withdrawn the Notice to Vacate, a new Notice to Vacate was immediately issued.  In addition, there was what was referred to by the real estate agent as a “three-week rent-free period as a good-will gesture to assist [the father] with his moving costs”, with an indication that if the offer was not acceptable, the landlord would go ahead with the VCAT proceedings.

16. The evidence about the father’s relationship with Mr C leaves me with concerns arising from the father’s failure to be frank in his application to the Magistrates' Court, and his initial failure to be frank with this Court as to the fact that he actually left those premises because the real estate agent asked him to leave, not because he simply wanted “a change of scenery”. 

17. Otherwise, the father admitted that he had drafted a complaint letter against the real estate agent, but he said that ultimately his anxiety was bad, he could not focus on more than getting out of the house, and he did not proceed with that complaint.

18. The father was cross-examined about an internet relationship he formed with a Ms I early this year.  The fact that he tried to form a relationship, or that it was via the internet, was unremarkable. It was potentially relevant to these proceedings only in two respects.

19. The first was that several emails that passed between the father and Ms I were produced by counsel for the mother.  They did not assist me to any great extent.  They were communications between two adults who did not see eye-to-eye, but the messages were not particularly aggressive or acrimonious. 

20. The second area of relevance was that the father had the firm belief that this relationship was “a set-up” on the mother’s part.  He was suspicious because, although Ms I claimed to live two streets from him, she seemed to put off an actual meeting, and he subsequently discovered that the mother was “a friend” on Ms I’s Facebook. 

21. The father’s suspicion about people who do not share his views, was the subject of considerable comment by Brown J, and noted by Dr U. 

22. In this instance there was simply insufficient evidence for me to form any view as to whether his suspicions about the mother were or were not well-placed.  It does seem like a remarkable coincidence that she would know the woman he met on the internet, but I do not know all the surrounding circumstances. I cannot make any definitive finding, and I disregard the evidence about Ms I.

23. The most concerning incident was the incident of 4 June 2010.  It was concerning because it was recent.  It was concerning because it seemed to stem from the same sort of aggression that Brown J discussed in detail, and it was concerning because the father did not appear to accept responsibility for it.  It was also pertinent that when he commenced his evidence, I asked the father a question as to whether he had been in any trouble with the police since the last hearing.  He replied “No”. 

24. Police records (Ex. M7) showed that on 4 June 2010 the father was charged with wilful damage/injure property and unlawful assault.  The father says that he was not charged.  Although he said he “chose” to go to the police station to discuss the relevant incident, he had to concede that in fact he chose to go there in response to a visit to his home from police when they left a card asking him to contact them. 

25. In any event, in cross-examination, the father had to admit that a community legal centre solicitor had made a complaint to police on 4 June 2010, following an altercation with him.  I note that at one point the father said he did not know if she was a solicitor or not, as she was not the person he generally saw at the community legal centre, where he was obtaining advice about a motor accident.  Otherwise though he did refer to her throughout as a solicitor.

26. He described her as being “unhelpful”.  He said he told her she was “unprofessional”.  He said they had a verbal altercation.  He said that there was “no physicality”, and that simply, “She said things.  I said things.”

27. When first cross-examined about it, the father said that, as he had explained to police, he was at the time coming off medication and was “dizzy” and that he had “a fall” in the solicitor’s office.  He said when he fell, he knocked the phone off the woman’s desk, and that could account for the “unlawful damage” that police discussed with him. 

28. He described the incident further along the lines that following the verbal altercation, the solicitor got up from her desk to open the door.  He stood up “in a hurry” and, with blood rushing to his head, he fell over and grabbed onto the corner of the desk.  The phone “went flying off the desk”.  The solicitor opened the door and left the room.  She alleged that he had thrown the phone. 

29. He said it was an incident that “snowballed”.  He “got angrier”, but he complained that it seems that he is “not allowed to show any anger at all”.  He says that Dr U has told him that to show anger is “normal” but it is what you do with that anger that matters.  He said counselling has helped him not to get physical, but he “still gets angry if things are wrong.” 

30. The father did not believe that the woman might have felt intimidated, and said that she had “quite a sharp tongue” and was “definitely being rude”. 

31. Dr U’s evidence did not support that the father was at the time coming off any medication prescribed by him, such as to cause dizziness in the way described.  Dr U said that he did not know however if the father’s GP had prescribed other medication.  The father gave no precise evidence about it, nor did he call a GP. 

32. The father’s account did not strike me as forthright.  He offered no credible explanation for an altercation with a solicitor that would cause her to contact police, why he would have stood up in a hurry, or how her telephone ended up on the floor, and no empathy with the prospect that she could have felt intimidated in any way.

33. Moreover, it seemed that the father had not discussed the incident in a candid way with Dr U, upon whom he was relying to satisfy the Court of a change in his attitude in relation to anger and aggression, particularly with women.

34. Although it is not my task and I do not have the evidence to make definitive findings about guilt when it comes to this incident, for the present purposes I am concerned that the altercation closely reflects the father’s angry and aggressive behaviours referred to by Brown J when she concluded that he should not be spending time with the child.

35. As to the father’s conduct in the course of these short proceedings, he conducted himself quietly.  He did not display open aggression of the sort referred to in the previous proceedings. 

36. It may be that, as he has undertaken considerable therapy, he has made some genuine changes.  However, it appeared mostly that he was being careful and guarded, conscious that the Court needed to be satisfied that he had changed, and that he could now conduct himself without aggression and volatility.  His consciousness in that regard was evident in the course of his evidence when on several occasions he prevaricated about recalling details, particularly as to complaints made about him.  It was obvious that he was making no genuine effort to recall them.  Several times, he admitted that he did not want to give answers that could effectively reflect badly on him.  That is, he was not being entirely open or forthright.

37. His manner reflected that guarded approach.  Although he did not lose his temper, his irritation was palpable when being questioned about conduct and incidents clearly relevant to this enquiry.  A number of times he manifested that irritation by what he said, as well as by his demeanour.  As noted, a number of times he feigned a lack of recollection (about relatively proximate events) to shut down a topic, or was dismissive of the cross-examination.  For example, when it was fairly put to him by Counsel for the mother that he had “lied” on his complaint for a Magistrates’ Court intervention order, rather than addressing the issue, he replied simply to the effect, “It’s your opinion.”

Cross-examination of Dr U

1. Dr U was an unimpressive witness.  He was partisan to his patient’s cause.  Although he has had five years’ experience as a psychiatrist, he did not grasp well the process of giving evidence, or he was being obtuse.  A number of matters were put to him to ascertain whether they would affect his opinion.  As opposed to a professional evaluation of the new material, his response was simply that his patient did not tell him about such matters. 

2. Perhaps some uncertainty about the process may have stemmed from confusion as to his role.  Initially, he told me that the father was referred to him by a GP specifically to deal with depression.  Later he said the primary focus was to recommence seeing the child.  Then, in early 2010, the father’s solicitor asked him to write a report for these Court proceedings.    

3. For the purposes of the report, the father’s lawyer sent Dr U some court documents to read.  Dr U seemed unfazed and uninterested that the material included an old report of Dr E, the psychiatrist who had examined the father, rather than the later one that was before Brown J.  He seemed similarly unfazed that the Family Report he received was an out-dated one and not one that was before the Court at the last hearing.  He seemed unfazed too that the actual Family Reports that were relied on in Court were not given to him. 

4. Nevertheless, he had proffered opinions, as noted above, that the father was “slowly maturing” and progressing so that there was no basis on any psychiatric ground for him not seeing his son, and that it would be beneficial to the father to be seeing the child. 

5. Dr U was largely dismissive of any matters that were put to him that might indicate the father’s on-going tendency to aggression.  He emphasised instead his patient’s “perseverance” in trying to see his son, and that stopping him might be the cause of the problem rather than the result. 

6. It was a glaring omission, in terms of relevant background, that before seeking the preparation of Dr U’s first report, the father’s lawyer had not provided the most thorough document, being her Honour’s Reasons for Judgment.  The solicitor was notably selective and narrow in what he/she provided.

7. The major concern for me about Dr U’s evidence was that in his second report, having noted in his affidavit that he was specifically asked to read Brown J’s Reasons and to provide a supplementary report, he made no reference at all to the judgment.  Instead, as he told me in cross-examination, the only alterations that he made to his second report were as a result of the father telling him things that he had gotten wrong in the first report. 

8. Dr U altered not only factual matters (for example, he said in the first report that the father had abstained from drugs and alcohol for eight years, but on the father’s instructions, he changed that to fifteen years in the second report), but also as to professional opinion.  In the first report Dr U said that the father possibly had a “genetic predisposition to aggression”, but in the second report he deleted that, because the father told him it was judgmental and unfair, and he agreed. 

9. Moreover, when Dr U was given the opportunity to comment on Brown J’s judgment for the purposes of analysing any impact on his professional opinion, he simply observed that he had read the judgment.  That was all.  His approach was unprofessional and unhelpful. 

10. It is a good thing for the father that he is in therapy.  However, I cannot rely on Dr U as an independent witness.  That he wants to help his patient is laudable, but that does not assist me with the question that I need to determine. 

11. The reality is that as his treating psychiatrist, Dr U accepted at face value the father’s descriptions of the mother, her malevolent role in keeping him from his son, and his resulting frustrations.  Brown J’s explicit criticisms of the father’s aggression, and its impact on the mother and on the child, as the specific reasons for the father not being able to see the child, should have at least been addressed by Dr U when he offered opinions in the second report (identical to the first report) as to the father’s anger and aggression, and his conclusion that he did not see a risk to the child in seeing his father. 

12. The fact that Dr U showed no capacity to re-assess his opinions in light of the judgment, and again in light of matters put to him in cross-examination – even if only to explain in a professional manner why his views were unchanged – undermined the confidence I could have in his understanding of the father’s previous aggressive behaviours, particularly with women, and whether the father had sufficiently changed to warrant the case being considered again.

CONCLUSION

1. It is to the father’s credit that he has undertaken counselling since Brown J’s orders.  It appears from what Dr U said that he has made some progress.  That opinion must be tempered however by the serious shortcomings in Dr U’s evidence, as referred to above.  It appears too from the father’s behaviour that he has made progress, but that view also needs to be tempered by the matters he had not disclosed, by the guarded way he gave his evidence, and by what he shared or chose not to share with Dr U. 

2. Although the father acknowledged in his affidavit that his “history” would have concerned the mother, in cross-examination, such a substantial change in his thinking was not borne out.  In his counselling and in his evidence he did not demonstrate a genuine appreciation of the concerns expressed by the mother and upheld by the trial Judge.  He continued to maintain to Dr U his view that it was the mother’s malevolence towards him that was fundamental to him not being permitted to see the child, and that much of his own anger and aggression resulted from her aggression and false allegations.  It was not dissimilar to his view apparently maintained during the trial, and is a view contrary to Brown J’s overall findings.

3. The evidence does not satisfy me that he has yet undergone psychiatric treatment to the “good effect” envisaged by Brown J, for me to find that the circumstances have changed sufficiently for a new application by him for a meaningful involvement in the child’s life. 

1. There is no doubt that the father genuinely wants to be involved in his son’s life.  There is no doubt that he has undertaken considerable counselling.  There is no question that he should be encouraged to continue doing so.  There is also no question that if his attitude and behaviour genuinely changes, then the issue of seeing the child should be re-opened.  Equally, there is no question that until that time, the child’s mother should not have to face the emotional and financial expense of further proceedings. 

2. The father was forewarned by Brown J that in the event that an unsuccessful application was made to re-open the parenting issues, then a possible outcome was an order pursuant to s 118 of the Family Law Act 1975. In his affidavit he acknowledged that possibility. I raised the possibility at the end of the hearing. Mr Combes was clear that his client was seeking the order. I shall treat that as an oral application. The Family Law Rules entreat the Court to ensure appropriate pragmatism and proportionality in procedures adopted. Of course, that cannot be at the expense of natural justice and fairness. However the father, having referred to it himself as the possibility already forewarned by Brown J, and having been given the opportunity to make submissions to me, is not disadvantaged.

3. I propose orders dismissing the current application, and restraining the father from making any further parenting application without first obtaining the leave of a court.  His application would need to be accompanied by an up-to-date report from a psychologist or psychiatrist, and the father should understand that the Court will require a full disclosure of any new intervention proceedings in which he is a complainant or defendant, of any breach of intervention order proceedings against him, and of any police charges against him between now and the date of any further application, as well as any other relevant information. 

THE ORDERS

1. The orders I propose are as follows:

   1.That the father’s application filed 19 November 2009 is dismissed.

   2.That the father is restrained from filing or serving any further parenting application without first obtaining the leave of a court having jurisdiction under the Family Law Act 1975.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 15 September 2010.

Associate: 

Date:  15 September 2010