JANZ and BAGLEY
[2018] FCWA 210
•8 NOVEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: JANZ and BAGLEY [2018] FCWA 210
CORAM: DUNCANSON J
HEARD: 2, 3, 4, 5 OCTOBER 2017, 19, 20, 21, 22 MARCH 2018 and 25 SEPTEMBER 2018
DELIVERED : 8 NOVEMBER 2018
FILE NO/S: PTW 5565 of 2015
BETWEEN: MS JANZ
Applicant
AND
MR BAGLEY
Respondent
Catchwords:
CHILDREN - Where the mother seeks an order that the father spend no time with the child - Where the father seeks an order that the child spend time with him unsupervised - Family violence - Where it is found the father poses an unacceptable risk of harm to the child - Where it is found that an order that the child spend no time with the father is in the child's best interests
Legislation:
Family Court Act 1997 (WA) s 7A, s 9A, s 66, s 66A, s 66C, s 70A, s 175
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms F |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Mr C |
Solicitors:
| Applicant | : | Law firm A |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Law firm B |
Case(s) referred to in decision(s):
B and B (1993) FLC 92-357
Blinko and Blinko [2015] FamCAFC 146
M v M (1988) 166 CLR 69
Stott and Holgar & Anor [2017] FamCAFC 152
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[E] is eight years of age. She is the daughter of [Mr Bagley], the father and [Ms Janz], the mother.
2The parties are unable to agree about E's arrangements.
3The mother wants E to live with her and spend no time with the father. The father wants E to spend unsupervised time with him including overnight time.
4The mother is concerned that E is at risk of harm in the care of the father by reason of him exposing her to family violence and his inappropriate behaviour towards E.
5The father denies E is at risk of harm in his care. He says there is a minor risk of harm if she lives with the mother, by reason of the mother's "regular sexual liaisons with strangers".
THE ORDERS SOUGHT
The mother
6 The mother seeks an order that she have sole parental responsibility for E and that E live with her. The mother seeks an order that E shall not spend any time with the father.
7 The mother was not opposed to the provision of information about E to the father, nor was she opposed to him providing letters or gifts for E so long as they are carefully vetted.
The father
8The orders sought by the father are contained in his minute of proposed orders filed 14 August 2017.
9The father seeks an order that the parties have equal shared parental responsibility for E. He proposes that E live with the mother and that she spend gradually increasing time with him, initially during the day on Saturdays for two periods of eight weeks, and thereafter until 31 March 2018 on alternate weekends from Thursday evening to Monday morning.
10The father proposes that with effect from 1 April 2018, E live with both parents for alternating periods of seven days. He makes proposals for E to spend time with the parties on special occasions.
11The father proposes injunctions as to the parties' alcohol consumption and non-denigration orders. He seeks a number of orders in relation to handovers, the provision of information, electronic communication, obtaining a passport and travel within and outside Australia.
12The father proposes that his orders remain in force until 2024, when E attains the age of 14 years, at which time she should decide her own arrangements.
13In closing, the father confirmed that he sought overnight time with E and he proposed that handovers be conducted by someone other than the mother.
The Independent Children's Lawyer
14E was represented by the Independent Children's Lawyer. In closing, counsel for the ICL submitted the difficulties with supervised time were significant and that it was unlikely long-term supervision would serve E's best interests.
15Counsel for the ICL submitted it was unlikely the relationship between E and the father could be managed effectively and into the future, and he supported the mother's application for "no contact".
16The ICL was not opposed to orders for the provision of information to the father.
FAMILY BACKGROUND
17The mother was born [in] 1970. She is 48 years of age. She is a [business executive].
18The father was born [in] 1962. He is 56 years of age. He is an [analyst].
19The parties commenced cohabitation in January 2005. They separated finally on 28 March 2015.
20E was born [in] 2010.
THE TRIAL
21The trial had been listed to commence on 2 October 2017. In addition to the parties' applications for final orders, eight contravention applications had also been listed. The first day of trial was occupied by hearing the contravention applications. In respect of five applications, I found the mother had no case to answer and they were dismissed. In respect of two applications, I found that the mother had a reasonable excuse for contravening orders and they were dismissed. In respect of an application filed 3 January 2017, I found that the mother contravened an order that E have electronic communication with the father. I also found that the contravention was not malicious and was minor in nature. I took into account that the mother had attempted to comply with the order. The mother was reprimanded.
22The trial commenced on 3 October 2017 and continued until 5 October 2017. It was understood the Single Expert Witness, [Dr J] would be attending the trial in person from [Brisbane].
23Counsel for the ICL informed me Dr J was only available by telephone, and he made an oral application for her to attend electronically. The father opposed such application.
24I refused the application, although immediately prior to giving reasons for my refusal, counsel for the ICL agreed with my decision and withdrew the application.
25The matter was to be adjourned part-heard in any event, by reason of lack of time, and I considered that it was appropriate for Dr J to attend in person at the adjourned hearing.
26On 5 October 2017 the trial was adjourned part-heard. The first opportunity I had to hear this matter was 19 March 2018.
27I listed the matter for directions in January 2018 to ensure readiness. The adjourned trial commenced on 19 March 2018 and concluded on 22 March 2018, at which time my decision was reserved.
28The mother filed an application on 31 July 2018 seeking to reopen the evidence. On 16 August 2018, I ordered accordingly. The trial was listed for further hearing on 25 September 2018 when the decision was once again reserved.
29The father was a self-represented litigant. I explained the trial procedure to him and he acknowledged he understood. I informed him he could seek procedural advice from me at any time.
30The mother and the ICL were represented by counsel.
31At the commencement of the trial the mother's counsel requested that by reason of time constraints and the Violence Restraining Order which the mother has protecting her from the father, he should put his questions to the mother through me. There had been no application by the mother to attend the trial remotely. I declined to proceed in that way but I informed the mother's counsel I would reassess the request as the trial progressed. In the event, I found it necessary to put the father's questions to the mother myself. I did this because at times the father was loud and abrasive when asking questions. He was argumentative and many of his questions referred to detail which was irrelevant. It was clear when the mother was questioned about family violence that it was distressing to her. Many of the father's questions therefore were put to her through me and she answered to me directly.
32The maternal grandmother gave evidence remotely. She had an interim VRO protecting herself against the father, as did her husband.
33Early in the trial I provided all parties with a copy of Division 11A of the Family Court Act 1997 (WA) ("the Act") and informed them that I intended to manage and conduct the proceedings consistent with the provisions of that division. Notwithstanding the father's complaints that I did not permit him to put his case to the mother and his loud and disruptive objections, I endeavoured to ensure that he did not concentrate on irrelevant detail and that questions were adequately put in relation to matters at issue.
34I am satisfied that I relayed the father's questions appropriately to the mother and that her evidence was properly tested. The father questioned the mother for two days. He had ample opportunity to put his case, albeit through me. The father complained about time constraints, but I am satisfied that he adequately conducted his case and that I fully understood it.
35The father considered it necessary to challenge almost every paragraph of the mother's trial affidavit and on occasions I told him to move on as the evidence was not assisting me. I was supported in that by counsel for the ICL who at times was of a similar view.
36For the most part the father was intimidating towards the mother. He berated her, he raised his voice, he swore under his breath and openly in Court. On one occasion he called her a "lying fucking mole". Occasionally he showed some insight acknowledging my procedural advice.
37On several occasions the father was warned about his conduct in Court, which included raising his voice and using foul language.
38During the father's cross-examination of Dr J, he used foul language and was confrontational. The father told Dr J that she was telling him he was a "fucking lunatic". I again warned him about his language and he responded "Well, hey, it's too late, isn't it. Does it matter?". During the same cross-examination, counsel for the ICL asked him to allow the witness to answer the question asked of her. At this point the father said to counsel, "Mate you're not the judge. Sit down and shut up". He subsequently apologised.
39I asked Dr J to comment on a proposition put to her by the father when counsel for the mother rose to say she had been informed by her instructor that the father had turned and pointed at the mother and said "You're gone". The father denied this, describing it as "bullshit", and said that he said "I'm gone". Counsel for the ICL informed me that he specifically heard what was said. He saw the father turn to the right (towards the mother's direction) and say "You're gone, mate".
40I adjourned the proceedings and watched the recording of the incident.
41I informed the father that the recording revealed that he turned to the mother, waved his papers and said "You're gone, mate". I interpreted that as a threat.
42Counsel for the mother informed me and I accept that the mother was very distressed by reason of that threat having been made in the court room.
43I adjourned the proceedings and arranged for the father to attend remotely by video link from the Supreme Court for the remainder of the trial.
44In the father's affidavit filed 12 September 2018 he conceded he said "You're fucking gone mate", but explained that unlike the mother he cannot afford a team of lawyers. He deposed it was an emotional outburst in a highly stressful environment and he reacted badly to "yet again being attacked without foundation".
45At times the trial was conducted in the most difficult circumstances by reason of the father's conduct. Counsel for both the mother and the ICL are to be commended for their perseverance and tolerance. The ICL and the mother seek an order that E spend no time with the father. In these circumstances it was important that all relevant evidence be provided to the Court and properly tested by cross‑examination, to ensure that the Court is able to determine the issues and make orders which are in E's best interests. It was also important that the Court not allow the father to distract it from those issues.
46I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to the evidence of a particular witness or part of it, it should not be assumed that I have ignored or overlooked it.
THE PARTIES AND THEIR EVIDENCE
The mother
47The mother was a truthful witness and her evidence was reliable. She answered questions clearly and briefly, saying no more than was necessary. She was questioned about incidents of family violence and was firm in her evidence notwithstanding the father's denials. The father's questions in this respect were difficult for the mother.
48At times the mother became upset, but for the most part she maintained her composure. For example, the father questioned her about an incident when, she deposed, he put his hand around her throat and held her against a wall. He argued that he could not have done this because of the position of the wall. She was able to describe the wall in detail notwithstanding that the incident occurred some years ago. I accept her evidence in this respect.
49On another occasion the mother made an error as to the date of bruising sustained by her and when documents were put to her regarding this date, she readily acknowledged the error.
50There were some discrepancies as to detail and dates in relation to the mother's evidence. It is likely she found it difficult to bring to mind many unpleasant incidents. I formed the impression that she is worn out by the father's behaviour towards her and by these proceedings, and her overriding concern is E's welfare.
51I asked the mother about E's relationship with the father. In reply she was very emotional and I was impressed with her frankness. I summarise her reply as follows.
52The mother said E does miss the father. She was in two minds about E spending time with him. The mother said in her heart, she wants E to see him because she misses him, but when she considers the potential damage, both emotional and intellectual, that the father could do to E, then she did not want her to spend time with the father. The mother wished she could have a separation like others where the children go with the other parent and the parties could co‑parent, but said that is not possible.
53The mother does not think the father can change. The mother said she spent 11 years with the father trying to make it work for E's sake, but the only way she can protect E is to remove her from the situation. The mother explained she does not want E to hate her or have issues when she is older. However, she would rather E had issues with her because she had protected her, and when she gets older she will understand, than to have problems and issues with her because she was with the father with no supervision, as the father has no filter. The mother said the father said he loved her, yet he still hurt her. She questioned at what point that would start with E when she is older.
Mrs Janz
54[Mrs Janz] is the maternal grandmother. I consider she gave truthful evidence.
55Mrs Janz corroborated the mother's evidence regarding the father's verbal abuse and aggressive behaviour to the mother, to her husband and to herself. She deposed that she heard him verbally abuse the mother, call her derogatory names and swear at her.
56In 2007, Mrs Janz saw what she described as a "clear cut" on the back of the mother's head.
57There was a discrepancy between Mrs Janz's evidence and that of the mother as to the injury. The mother said the father threw the removable hatchback part of the car at her, which struck her near her ear in her hairline. The incident occurred 11 years ago. I accept the mother suffered an injury at the hands of the father, and the evidence of the mother and the maternal grandmother is to that extent reliable.
58Mrs Janz recalled going to the parties' home in 2007 to find the father "bellowing" at the mother when she was cowering in a corner.
59Mrs Janz also recalled the distress of her husband when he found the photographs of the mother, naked, in their letterbox. She also recalled going to the mother's home to find her very distressed as she had found similar photographs in her letterbox, and her gas and electricity had been switched off.
The father
60The father was well prepared for the trial. He had prepared a script of questions from which he was not minded to deviate. He objected strongly when I asked him to do so, in particular when he concentrated on minor issues which were unlikely to have any impact on my determination of the matters in dispute. At the outset, he said he had approximately 335 questions for the mother.
61For the most part, however, the father sought to establish that the mother was a liar, that he did not pose a risk to E and that he had been denied a relationship with her.
62The father's conduct, in his correspondence, towards those advising the mother was unacceptable, as were other aspects of his behaviour towards the mother.
63I do not accept the father's explanation for an incident in which he attempted to strangle or choke the mother. He said during an argument he put his hand on her sternum, she struggled and his hand slipped up and was on her neck for about half a second.
64The father did not accept the proposition that the mother wants what is best for E. The father described the mother as a "vindictive, malicious bitch". He described himself as an "obstinate loud‑mouthed dickhead", and he said he knows he is obnoxious and overbearing.
65The mother wrote to [Child Contact Service A], the supervisor, saying E did not really like the [children's play centre], and did not want to tell the father because she was worried about hurting his feelings. Instead of trying to understand E's point of view, the father said this email was meant to infer that E was scared of him. In this context the father said "[Ms Janz] is a sleaze". He said she insinuates, she hints and makes up. He described the mother as "[Ms Janz] the virgin nun". He said the email was designed to gain the sympathy of the supervisor. With reference to the email, the father said "This five lines … to me basically wraps [Ms Janz] up in a bundle. This is sleaze."
66The father was asked about Dr J's report in which is stated he hoped for a reconciliation with the mother. In contrast to the above, the father said he still loves the mother and he hoped they could cooperate in parenting. He said he loves the mother when he is not angry with her.
67The father said when he and the mother separated E was only four years old, but she said "I know why mummy left. It's because she told the four lies". The father reacts badly to things being said with which he does not agree or accept, for example, the mother "lying" or E saying things which he does not approve of. His response is to punish, and in the case of the mother this was by throwing her out of the house. He said he kicked the mother out of the house six or seven times when she lied to him. In the case of E he terminated a supervised visit.
68In relation to the father, Dr J reported:
Psychological assessment of [Mr Bagley] indicated a childhood of trauma, significant violence, and poor parenting. He described a chequered work history and difficult interpersonal relationships. Psychometric testing suggested that [Mr Bagley] might meet criteria for an Antisocial Personality Disorder. He takes an egocentric approach, and he showed in various discussions that he has contempt for others, and [Ms Janz] in particular. [Mr Bagley] suggests that [Ms Janz] is a pathological liar and this has eroded his capacity to trust her. He provides an account however to indicate that he prides himself on his candor, but likely has a poor understanding of others. Indeed, his approach to 'truth' had a rigid flavour and I consider that he is inclined to take a judgmental approach to others but lacks insight about his own behaviour.
69I agree with Dr J's assessment of the father.
Mr P
70[Mr P] is a friend of the father. Mr P was supportive of the father and said the father was not a violent person and he trusted him.
71I consider Mr P endeavoured to give honest evidence, however he had little knowledge of the circumstances of the parties' relationship and had not seen E for some years.
Dr N
72[Dr N] is the father's general practitioner. In 2013 he was first consulted by the father, who was having issues of anger management and had been a member of Alcoholics Anonymous. Dr N referred the father to [Ms S], Psychologist to deal with his Post Traumatic Stress Disorder symptoms. Dr N subsequently noted the father's behaviour had changed in that he was more comfortable within himself.
73Dr N recalled seeing the father with E on an occasion. He said the father was very firm with her and spoke sharply to her when she made excessive noise.
74The father attended upon Ms S for three sessions, which was not considered a full treatment for PTSD. Dr N described PTSD as a "life‑long sentence" which takes continuous treatment through groups such as Alcoholics Anonymous and [a family violence program] to be treated.
75Dr N said the father was badly traumatised by things he had done, for example going to jail for "beating up" [a] person, and by things that happened to him as a child, which were more than enough to cause PTSD.
Mr H
76[Mr H] leased a room in his home to the father. He met E on a few occasions, including that on 25 June 2017 to which I refer below.
77In relation to the argument between him and the father, Mr H said he overreacted and he did not recall why the police were called. He denied the father screamed and said he found the father's approach to be unreasonable but not threatening.
78In this respect I do not consider Mr H gave truthful evidence. In cross-examination he agreed the police had been called on another occasion. He was supportive of the father and minimised the father's behaviour. I did not find Mr H's evidence to be reliable.
Child Contact Service A supervisors
79[Ms F], [Ms H], [Ms B] and [Ms D] supervised various visits and provided reports of those visits. Although a number of the visits were successful, several were the subject of cross‑examination and gave rise to concern for E's wellbeing during those visits.
80The evidence of the Child Contact Service A supervisors was measured and reliable.
Ms M
81[Ms M] is a primary school teacher at [E's school]. Ms M was E's teacher in 2017 for the first three terms of Year 2.
82Ms M said E's work was satisfactory and she was not aware of behavioural difficulties different to any other child.
83In answer to questions from the father, Ms M was not aware of difficulties in E's behaviour in 2016 at a time when she was not seeing the father.
Dr J
84Dr J, Clinical Psychologist was appointed Single Expert Witness. Dr J provided a report dated 24 April 2017. She recommended E spend ongoing, long-term supervised time with the father.
85Dr J recommended that E having supervised time with the father would be the only way which would keep her safe, but she did not perceive that the father would easily comply with directions or advice of professionals. Dr J's prediction was that supervision with an independent agency may end up falling away by reason of the father's conduct.
86Dr J reported that even telephone communication with the father carried risks for E and she had no confidence he would be able to modify his speech or attitudes to protect E from them.
87In cross-examination, Dr J was asked about the possibility of E not spending time with the father. She said this would have some positive and some negative effects for E. There would be a risk to the father of self-harm, and a risk of harm or violence by the father to E and the mother, because there would be nothing left for the father to lose. She said E would feel grief and miss the father, but on the other hand, she would feel a lessening of a responsibility to keep him happy.
88Dr J said that if it was possible, supervised time ongoing would be best for E. It would minimise the risk to her. She said personality disorders tend to mellow with age. Dr J also said there was a really strong risk that the supervised time would be disrupted.
89Dr J was asked about the frequency of visits. She explained that E has strong feelings for her father, and their relationship is there and established. Dr J said E probably has to see him in some form to keep that relationship going.
90Dr J repeated E's wish to see the father every Saturday and she noted the many positive interactions they have. She said, however, it was the examples of poor interaction that were the most damaging and in her words "cancel out" a lot of those good interactions.
91Counsel for the ICL asked Dr J, having regard to the father's views about the mother, whether it was fair to consider that the prospect of him making any therapeutic shift was remote. She said he has a lot of motivation to change to see E, but he has not taken advantage of that. She hoped this would be a watershed for him to change, but as a psychologist she would not say he could not change.
92In the event the Court were to cease time between E and the father, Dr J said written communication and gifts from the father to E would be appropriate, subject to vetting.
93In terms of Dr J's recommendation about the father's treatment, she said he needs to be treated by someone who is adept at treating personality disorders, and probably not a woman. His behaviour was consistent with a personality disorder and particularly antisocial features.
HISTORY
94The father grew up in [Tasmania]. His father was violent towards family members including his mother and himself.
95The father told Dr J he had been involved in 60 fights in his life and explained this involvement was on the basis that he was either defending himself or others.
96The father assaulted a person. The victim attended hospital, but was subsequently discharged and several days later died from a fractured skull. The father was convicted of assault occasioning actual bodily harm and sentenced to two years and six months' imprisonment. He served about 14 months.
97The parties met through an online dating service in 2004 and began living together in about 2005. There was family violence between the parties prior to E's birth.
98In 2007, the mother sustained a cut to her head after the father threw the removable hatchback part of her car at her. The mother said and I accept that there were incidents of family violence which began to occur gradually.
99At the time of E's birth the father was working in [Country A]. The mother and E moved to Country A in July 2010. The parties left Country A in December 2010, returning to Australia and subsequently moved to [South Australia] in February 2011.
100In South Australia, the mother had received $100 for her birthday from her parents. She spent it and some more money at the hairdresser. The father was angry and the parties argued. The father grabbed the mother's arm and caused bruising to it.
101In early April 2011, the parties argued about the mother's wish to return to Perth. She was isolated in South Australia, living in a home with a young baby and little furniture.
102The father held the mother up against the wall with his hand around her throat. Their argument woke E, who cried. The father took E into the bedroom and locked the mother out. The father threatened to take E into the bush.
103The father put E in the car. The parties disagree as to whether he drove away, but in any event he returned to the house. When the father passed out the mother called the Domestic Violence Hot Line and was given assistance to leave the house.
104The mother returned to Perth and lived with her parents. In about August 2011, the father returned to Perth and E spent time with him supervised by the mother.
105In 2011, the mother attended counselling at Relationships Australia. She did [a] family violence program for women.
106The parties reconciled in February 2012. The father attended Alcoholics Anonymous, which he had attended some years before. He attended a men's anger management group.
107The mother was the primary carer for E, assisted by the father.
108The parties separated again in February 2013. E spent time with the father during the day. The father was unemployed and began drinking heavily. On an occasion the father held the mother against a wall with his hand around her throat.
109In May 2013, the parties reconciled. They separated again in late 2013, but reconciled in December 2013.
110In June 2014, the father was unemployed. The mother was in employment. The mother said she was the primary carer for E who also attended day care. The father also cared for E. The parties disagree as to the extent to which the father was involved, with each party minimising the efforts of the other.
111During the course of their relationship there were multiple incidents of family violence. The father drank to excess. He shouted and swore at the mother and used foul language. At times the mother retaliated. The father alleged the mother was a liar and this was a constant theme of their arguments. On several occasions the father told her to leave their home and go to her parents.
112E was exposed to the parties' arguments.
113In late 2014, and again in February 2015, the father flicked the back of his hand across the mother's face hitting her eyebrow, causing her eye to bruise. The father denied this occurred. I accept the mother's evidence in this respect. She was visibly upset when describing the bruising. She used make‑up to hide the bruising from co‑workers and from E.
114The mother scratched the father's arm. She said he pinned her against a wardrobe. The father admitted he had spat at the mother, although said this did not occur in front of E. On occasions the police were called.
115The father denied many of the mother's allegations of family violence, although he admitted on one occasion in Country A he slapped her. When cross-examining the mother, the father said he recalled saying to her "don't fucking make me angry because I might hit you". He also recalled saying to her "[Ms Janz], if I hit you, I'll knock your fucking block off". The father described this as an anomaly because the mother said he was angry, and yet all he did was say these things.
116In cross‑examination the father agreed he spat on the mother, pushed her and slapped her. He said she was a pathological liar and he did that to scare her and compel her. A document from Relationships Australia noted that the father said "my mind snapped". The father disagreed with this wording and he said he recalled saying he "felt something go twang in my brain" when the mother lied to him for the fourth time that day.
117The father admitted he had smacked E, but not hurt her. He swore at the mother and said she used foul language as well. He denied he had ever mentioned or displayed weapons, although he said he told the mother "I'll fucking shoot you". However, he said that was just a turn of phrase and he had never used a weapon on the mother.
118The father admitted he pushed the mother, hit her with tea towels, forced her out of the house six or seven times, stopped her leaving the house, and pinned her down.
119On 28 March 2015, the parties argued. The father called the mother a "liar" and told her it was best that she not stay at the home that night. The mother said the father hit her on the back of her head and her sunglasses fell off her head. He denied this saying he flicked her sunglasses. I accept the mother's evidence in this respect. The father told the mother to stay away from E and she left without her. The mother spent time with E who remained in the care of the father. The mother deposed "it was safer for the both of us that I just go". The mother was asked why she did not take E and said she did not have a choice.
120The parties subsequently agreed E would live with the mother.
121In late April 2015, the father sent a number of emails and text messages to the mother. Many were abusive. In others he said he loved her and wanted to talk and to reconcile. The mother endeavoured not to respond. One of the text messages stated:
And now I set up your page. No hurry I, I will wait until I have 100 pictures up and then send to every fucking [business executive] I know. Unfair [Ms Janz].
122The mother understood that to mean that because she was [a business executive], the father would send links to websites to people she worked with, enabling them to see her in explicit photos.
123The father said he had delivered the mother's belongings to "Vinnies" and to "Good Sammies". The mother went to both of those locations, but her belongings were not there. By this time the mother and E were living with her parents. On about 26 April 2015, the father went to the mother's parents' home demanding to speak with the mother. The father was aggressive and verbally abusive. The maternal grandmother called the police who issued a 24 hour police order.
124On 27 April 2015, the mother sent a text message to the father suggesting that E spend equal time with the parties on a week about basis, with handover taking place on a Wednesday.
125The mother was asked by her counsel why she made this proposal. The mother said at that stage she just wanted things to stop. They would stop if she made that proposal because the father would get what he wanted.
126The mother obtained an interim VRO on 30 April 2015.
127The parties signed a parenting plan on 8 July 2015. The parenting plan provided that E live with the mother and spend time with the father, each alternate weekend from after school Friday to before school Monday, and each week from after school Wednesday to before school Thursday. The parenting plan also included school holiday time and special occasions.
128The mother deposed that after E's first visit with the father she told the paternal grandparents they were evil and said the mother was a liar.
129On 10 September 2015, the mother's VRO was made final by consent. The father relocated to Country A on the same date. He sought to have E travel to Country A and spend time with him in accordance with the parenting plan. The mother refused to allow this. She explained that the father's proposal would involve E travelling by plane, to be collected at South Australia by the father. She was concerned that E would be removed to Country A which is not a Hague Convention country.
130In January 2016, the father returned from Country A and spent time with E in [Suburb A].
131Final parenting orders in relation to E were made on 1 February 2016. The orders provided that E live with the mother and spend time with the father at alternate weekends, on Wednesdays and for half of the holidays.
132The mother said at the time the orders were entered into she understood that the father was living with his friend in Suburb A. On 3 February 2016, in breach of the VRO, the father sent a letter to the mother. The mother reported this to the police and the father told the police he was living in his car.
133The mother sought information as to the father's address. It was not provided. She had been misled about his living arrangements and on 19 February 2016 filed an application seeking to suspend the orders.
134The father sent an email to E on 19 February 2016, the terms which were entirely inappropriate and directed primarily at the maternal grandparents. The email read as follows:
I went to court with your mother on 1 February 2016, and the lawyers had a chat.
Next, they told me that I could see you every second weekend as long as I showed them my lease, and as long as I had two beds in my house. The inference was that there was something wrong with us sharing a bed.
You are my daughter, I love you. I am your daddy, you love me.
Their inference that there was something wrong with us sharing a bed was sickening, and intended to make us look sick. I love you sleeping in the same bed as me. I can wake in the night and smell your breath. You are my daughter. What could be better?
Your grandmother and grandfather have been behind this all along. They have always understood that I see them for the empty vessels that they are. They are ugly people. They funded this case. They want [Ms Janz] all to themselves, and now they have managed the kidnapping of you too.
They are disgusting, and one day you will be filled with the same disgust that I am currently filled with for them. They are empty, resentful, envious, ugly evil little people, and you will come to see that in the coming years.
They have destroyed your family by not telling your mummy that lies have no place in a loving relationship. They are just liars, and you remember that your mother is an unconscionable liar as well.
I have to leave [E]. I will not be controlled, and I will not have my life curtailed because of stupid people.
135The father planned [a long distance walking trip]. He left Perth to commence the walk in March 2016. He ceased the walk in June 2016.
136On 10 March 2016, the mother's parents received an envelope containing photographs of the mother, naked, which had been taken by the father during the relationship. The mother's parents were angry and upset. The mother deposed during the relationship the father often used explicit photos of her to blackmail her to stay with him when she said she was leaving. This threat made her stay in the relationship for many years. The father denied this, but I accept the mother's evidence.
137On 4 April 2016, a further explicit photograph of the mother was sent to her workplace. The father denied sending this photograph. The mother reported this to the police.
138On 6 April 2016, the father attended E's school. He threatened the school principal that he would "knock his block off". He subsequently apologised for his behaviour. The principal wrote to the father concerning his behaviour, which he described as aggressive and intimidating towards staff and other parents.
139In 2016, E had some behavioural difficulties at school. The father asserted these difficulties were directly related to her lack of time with him. He provided a schedule which referred to the dates of incidents of her poor behaviour, and compared that to the dates when he had last spent time with her. He endeavoured to show that she behaved poorly when she had not spent time with him for some time.
140The father posted inappropriate messages on his website. He sent abusive text messages to the maternal grandparents.
141E continued to have Skype communication with the father, although the mother became increasingly concerned about the content of that communication. The father sent inappropriate Skype messages to E. E's behavioural difficulties continued.
142Around 14 September 2016, the father sent the following series of messages to E on Skype (errors in original):
I can destroy you mother [E]
in a heartbeat
But I REFUSE to destroy something (someone) that I love
I am not afraid of the police - why faer them?
fear
I am not afraid of anything
and there is NOTHING to stop me from taking that step!
except that I truly, truly do love your mother
even though we will never speak again
I understand the rage
It comes from an immense fear
and trust me [E] - me and your mother will NEVER speak again
I love her, and she is my wife, but I
And
DONE to you - is unforgivable
To damage your child just to punish me
Is the act of a true coward
In the click of a keyboard I can eradicate your mummy and HER
father
Let your grandfather actually SEE the picture, the BIG picture
All of them
But naturally I will NOT
Because if I am not decent, then the will be no decency here at all
BUT……
When people lose everything they love, then what else is there to lose
143A counsellor made a report to the police on 13 September 2016. The mother deposed as to the contents of the police incident report, which contained comments made by the father that drew the attention of the counsellor, including the following:
I should have shot her in the head.
I would like to shoot [Ms Janz].
It be easier to shoot [Ms Janz].
I have thought about it I could do it I've done it before.
I used to wonder how guys on the news could kill their children, but now I understand why I would just throw them off a bridge.
144The father did not accept the report and said the counsellor was an associate of the mother whom the mother used to "get her way".
145On 9 November 2016 on an interim basis, the orders of 1 February 2016 were suspended. E's time with the father was ordered to be supervised by an independent agency. The father was ordered to provide evidence of enrolment in the Mums and Dads Forever program and completion of [a] family violence program, and once done, orders were made providing for E's time with him. An order was made that E have Skype communication with the father each Wednesday and Sunday.
146In November 2016, E commenced spending time with the father supervised by [Child Contact Service B].
147During a visit on 18 December 2016, the supervisor noted that the father's manner in speaking to the supervisor was aggressive and the supervisor felt uneasy with the conversation.
148On 21 December 2016, E's behaviour during a Skype call irritated the father and he hung up. The mother asked E to call the father back, which she did and during the course of that call he called her a "little shit". E was upset about this.
149On or about 22 December 2016, the father placed explicit photographs of the mother into her letter box, that of a neighbour and that of her parents. He had also turned off the electricity and gas at her home. The mother described the photographs as having the same impact upon her as a weapon and said the father used them to control her.
150The father was convicted of breaching the VRO.
151During a visit on 15 April 2017, the father wanted to talk to E about telling the truth and questioned her about whether the mother had a boyfriend. E then said "mummy's boyfriend scrubbed me in the shower and put soap on me". The supervisor told the father to stop the discussion; the father did not acknowledge those instructions. The father denied contravening the instructions of the supervisor not to discuss this matter with E, saying it was E who kept talking.
152Dr J's report was published on 24 April 2017. The mother applied to suspend E's time with the father. Supervised time continued, but on 1 August 2017 the Court discharged the orders which provided for unsupervised time.
153A visit took place on 25 June 2017 at the father's accommodation. The supervisor recorded that the father's landlord, Mr H, told the supervisor and E to get out of the lounge room for making the cat "paranoid". The father was not there at the time but the supervisor let him know what had happened. The father was unhappy about this. Mr H told the father that E poked the cat. E denied doing so when confronted by the father. This caused an argument between the father and Mr H, who called the police. In relation to this incident the father said the following:
… [Mr H] then threatened to call the police to tell the police that I was hitting him. I told him to go ahead and make the phone call. He made the phone call. The police came. Had a talk to [Mr H]. [Mr H] said, "You know, I just make -" blah, blah – "making it up". … He was … he got angry, because I was getting up him for bloody – for scaring [E] and [the supervisor]. How dare he.
154As to Mr H's evidence in this respect, I refer to my findings at [77] and [78] above.
155A visit on 1 July 2017 was terminated. The father took E to the cinema and E told the father she had nits. The supervising coordinator terminated the visit by reason of live head lice. The father spoke inappropriately and used foul language to the supervisor.
156At a visit on 12 August 2017, the father arrived at the venue and parked his car near that of the mother. The supervisor recorded that the father called the supervisor and let her know that he was at the venue and saw the mother, parked next to her car and didn't realise it was her until she drove to another parking spot. The mother told the supervisor that the father had deliberately parked next to her.
157In August 2017 the mother applied to extend her VRO.
158The supervisor recorded that at the commencement of a visit on 9 September 2017 the mother was able to see the father on the footpath. It was put to the father that he was visible to the mother at the time of handover. The father could not recall where he was standing at the time and said the mother could see him a little bit, but the supervisor could not.
159At a visit on 16 September 2017, the father took E shopping. E had a shopping list which the father found and read. He then ripped it up in the presence of E. He immediately apologised for doing so and in evidence said he felt horrible.
160An incident occurred [in] November 2017 when E was performing at a concert in [Suburb B]. The father did not remain at the handover point and he walked to where E came out of the concert. He acknowledged that this was contrary to the instructions of the supervisor.
161The following day he went to the [Suburb B Performing Arts Centre] as he said E had begged him to go to the Sunday concert. No supervised time was organised on this occasion. He whistled and waved at E and she went to him. The father said the mother had tried to drag E away, but E grabbed free. It was put to the father that he pre‑purchased his ticket knowing that there was no contact arrangement. The father did not recall when he purchased the ticket, and said he did not breach the VRO as he did not go within 20 metres of the mother.
162On 7 December 2017, Child Contact Service A wrote to the father issuing him with a warning for termination of services by reason of the following:
•staff receiving excessive phone calls and text messages on a weekly basis from the father regarding the mother, handovers and service;
•disrespecting staff verbally and in writing;
•not adhering to instructions given by staff members regarding handovers; and
•denigrating the other party to staff.
163Ms H, a Child Contact Service A supervisor, was asked if at the time the letter was issued there had been a particular triggering event; she said it was a combination of things. For the most part, the father denied denigrating the mother to the supervisors, stating:
I don't disrespect her … I disrespect what she's doing to stop [E] from seeing her dad.
164Many messages sent to E by the father were inappropriate. For example, on 25 September 2017 the father wrote in a Skype message "… I will keep on fighting for you for as long as I have a breath in my body". On 5 November 2017 he wrote "… your mother is damaging you to hurt me". The father said E does not read these Skype messages, but he wrote them because when she is 15 or 16 years old, he wants her to know that he was thinking of her and trying to see her. He explained he wants E to know what her father was feeling at the time. It is more likely than not that E has read inappropriate messages. Dr J reported that when she asked E about Skype, she said her father writes messages to her on Skype but the "mean ones" are deleted.
165The father admitted saying to the maternal grandparents during proceedings on 13 June 2017 at the Perth Magistrates' Court that their Christmas would be "fucked" in 2017. However, he disputed the Magistrate's finding in reasons regarding the maternal grandparents' VRO proceedings, delivered 14 March 2018, that he said:
If I lose my daughter over this, you're fucked and you'll hear about this at Christmas.
166During a visit on 20 January 2018, the father asked E if she had seen "that lady", meaning the Single Expert Witness, and he asked her if she told her she wanted to sleep over at his house. E said she did. The father then said to E that she had to understand that the mother was trying to take her away from him. The supervisor had to tell him to stop asking those questions and talking about the mother.
167On 10 February 2018, the visit was terminated prematurely by the father. E was spending time with the father and while pushing her on the swing, the father talked about his extended family in [Country B] and how E might have the opportunity of travelling to visit them. E then replied "My mummies [sic] family is from [Country B] I'll go see them". The father reacted badly to what E had said. The supervisor reported that the father walked off. The father said E made him upset, he turned around and he took some steps away. The supervisor reported that E approached the father and tried to talk to him, but he did not respond, so she ran off and played with other children. The father disagreed with the supervisor's record of events. The father said that after taking a deep breath he knelt down and told E she had been very rude, and then she walked off. In evidence he said E was being "a real little horror". The supervisor recorded that the father said (errors in original):
… she's getting worse and worse each week ok, if you weren't here I'd smack her on her bum but because you're here everything gets written down and I'll get reported I can't Fucken win, ok where is she its better if we don't terminate.
168The father then talked to E who said sorry and kissed and hugged him several times. The father described this as "an insincere apology". The supervisor recorded that he denigrated the mother to the supervisor by saying (errors in original):
… that's all [Ms Janz] there, she's grooming that kid, everyone thinks [Ms Janz] all good it took me 10 years to see thru her and her lies she nothing but garbage.
169In cross-examination the father admitted saying "the tenor of the comment" to the supervisor, but did not agree he called her garbage. Initially in his evidence he admitted denigrating the mother to the supervisor but subsequently resiled from that position. He acknowledged it was probably "better off not said".
170The father apologised for his outburst. The supervisor recorded the visit appeared to be "again on track" when suddenly the father appeared not to like the way in which E had responded to him. The father then told the supervisor he wanted to terminate the visit. The supervisor recorded that the father's mood went from normal to extreme irritation in seconds, as was evident in conversations with E. The supervisor reassured her that although the visit was ending early, it was not her fault.
171In relation to this incident, the father said he was "gutted" because of E's behaviour. He accused the mother of grooming her and said he terminated the visit because of E's disrespectful behaviour.
172The father was questioned about the need to smack E, to which he answered:
… Sue me. I fucking – I – pardon me. I smack my child. I've smacked [E] about four or five times in my life. Never, ever, ever, ever have they been hard. In actual fact, I doubt that she has been able to feel 99 per cent of time, okay, and the smacking to me is symbolic … but because I haven't been able to give her a tap on the bum because you guys blow it out of proportion, then I – the only thing I could do when she – and her behaviour was unacceptable … cancel that visit … it's the only recourse I have with [E], and her behaviour was abhorrent.
173The supervised visits occurred with supervised handovers. Many of the visits were successful with the father being cooperative, happy, polite and friendly. The summary of the Child Contact Service A report dated 27 February 2018 is that there were no concerns or issues to report in regard to the father's interaction with E. E was reportedly comfortable and relaxed in his care. The supervisor's notes showed that the visits included a number of positive interactions and activities, both parents being cooperative and polite.
174The father sent an email dated 2 March 2018 to [Ms Z], the mother's lawyer, in which he was critical of a letter she had sent to the ICL requesting that all the witnesses from Child Contact Service A and subpoenaed documents be available at trial. The father expressed his disappointment "that you would feel the need to 'publicly' treat [the ICL] like an idiot in reminding her to carry out functions of which she would be fully aware". His email was disparaging of Ms Z. The father said he found Ms Z's letter to be "personally rude" and "absolutely condescending" to the ICL, but in the next breath he said "I'm no fan of [the ICL], trust me". The father's explanation was he believed in right and wrong; he said he deliberately set out "to write a rude email to a rude person".
175E spent time with the father in May 2018 at the father's home. The father's housemate gave E $10. The father was furious, he said not because E had been given the money, but because his housemate had asked her to keep it a secret from him. The father deposed he saw this as a typical grooming pattern for a paedophile. E overheard the father yelling at his housemate.
176On 3 May 2018, the father met with the school principal and E's class teacher and they discussed E's progress. Since then the father has set aside an hour on each visit to assist E with her school work. E received an honour certificate for improvements made in her writing skills on 5 June 2018.
177On 14 March 2018, the maternal grandparents' interim VRO was made final for a period of two years from 15 June 2017.
178On 29 June 2018, both parents attended E's end of semester school choir concert. E wanted the father to join her for the end of term tradition of throwing school hats in the air. The mother refused as there was no supervisor present. E was upset and angry. The father left the event. E was disappointed. The father deposed:
[Ms Janz] was just never, ever going to allow [E] her wish just so she could hurt me.
179On 10 July 2018, a hearing took place at the Perth Magistrates' Court regarding alleged breaches by the father of the mother's VRO, and to consider whether it should be renewed on a final basis for two years. The father was fined $500 for a second breach, occurring 12 months after the first breach. The VRO was renewed for a further two years. The mother deposed that during the hearing the father said, referring to the mother, "you're fucked", and "this is war, it's on".
180The father deposed that he was innocent of the charge and was deeply upset. He recalled saying to the Magistrate after the verdict "you're fucking kidding", "this is fucked", or something to that effect. I accept the mother's account of events.
181On 10 July 2018, the mother received an email from the supervisor seeking to discuss handover locations for E. The supervisor inquired whether the mother or the maternal grandparents would take E to handover locations, as the father was not willing to bear the cost of transport anymore when handover locations are "out of area". The mother declined to change the transportation arrangements as she was concerned for her safety, citing threats which had been made by the father, and the VROs that are in place. She stated the requirement for transportation is due to his behaviour, and as such ought to be paid for by the father if he wants to see E.
182The father responded by referring to another occasion on which the maternal grandparents refused without reason to drive to the usual handover location, increasing the supervisor's travel distance by 23 kilometres and resulting in a $19.70 increase to the father's bill. He refused to pay that portion of the travel invoice asserting it is supposed to be paid by the party responsible for it.
THE LAW
183These proceedings are determined under Part 5 of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 66 as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) -
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
184In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the primary and additional considerations. Section 66C(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
185Section 66C(3A) provides that in applying the above considerations the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
186Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
187Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 7A as issues about the care, welfare and development of a child of a long-term nature.
281I intend to order that E spend no time with the father.
282It is a very serious matter for a court to make an order that a child spend no time with a parent. In considering whether to make such an order I have balanced the relevant factors to which I referred above. The scales weigh heavily in favour of making such an order. This is not a decision which I have come to lightly because it deprives E of a relationship with the father, at least until such time as the Court can be satisfied that the father has changed in his attitudes and behaviours. As Dr J expressed, it is to be hoped that this decision will be a watershed for the father to "look at things and change", but the responsibility for making that change rests with him.
283To give effect to the order I intend to make that the father not spend time with E, I consider he should also be restrained from approaching within 100 metres of E, or attending her school. I consider such orders to be necessary and in J's best interests, as if E were to see the father she is likely to become upset and confused.
284E mostly enjoys her time with the father and the attention she receives from him. It is likely that she will retain a happy memory of him and it would be beneficial to her to maintain a connection with him. I therefore consider it to be in E's best interests that she receive letters and gifts from the father and that the father be kept informed of her progress and any important matters relating to her welfare and education. The mother is not opposed to orders in those terms provided she is able to vet the correspondence from the father to E. I intend to make those orders notwithstanding, by his response, the father made it clear they were not acceptable to him.
THE ORDERS
285Having considered the primary and additional considerations, I am satisfied the orders set out below which I intend to make are those in the best interests of E.
1All previous parenting orders be discharged.
2The mother have sole parental responsibility for the child, [E] born [in] 2010.
3The father not spend time, nor communicate with the child save as set out below, or as agreed to in writing by the mother.
4Unless otherwise agreed between the parties in writing, the father, his servants and agents be and are hereby restrained by injunction from:
(a)approaching within 100 metres of the child;
(b)contacting or communicating with the child in any manner whatsoever save as set out below;
(c)attending at the child's school; and
(d)attending at the mother's home, or that of the maternal grandparents.
5The mother have permission to provide a copy of these orders to the principal of the school attended by the child.
6The father have permission to send a gift and a letter or card to the child on four occasions each year and for her birthday, at Christmas and at Easter.
7The mother have permission to approve all gifts, letters and cards and once approved shall pass them on to the child.
8To give effect to orders 6 and 7 above, the mother shall within 14 days provide an address or post office box number to the Independent Children’s Lawyer for onward transmission to the father.
9The mother shall:
(a)advise the father as soon as practicable, via a third party or third parties, in the event that the child suffers any serious illness or injury, with such advice to include the nature of the medical emergency, and the relevant diagnosis, treatment and outcome; and
(b)provide to the father, via a third party or third parties, the following information or documents on a biannual basis:
(i)the text from any school reports for the child;
(ii)the text from any medical reports for the child about her general health and wellbeing; and
(iii)a current photograph of the child.
10To give effect to order 9 above, the father shall within 14 days provide an email address to the Independent Children's Lawyer for onward transmission to the mother.
11The father have permission to provide a copy of the report of [Dr J], Clinical Psychologist and a copy of these reasons and orders to his treating psychologist or psychiatrist.
12These are orders to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that these orders are inconsistent with the Family Violence Order made in the case between the parties on 10 July 2018 in the Magistrates Court being Complaint number [XXX], the aforesaid parenting orders shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
13The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of these orders to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court and the Chief Executive Officer of the Department of Communities.
14The Independent Children’s Lawyer be discharged after three months from the date of these orders.
15The proceedings be otherwise dismissed.
16All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
17In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
18In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 16 and 17 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE8 NOVEMBER 2018
0
3
0