Joelson and Joelson

[2014] FamCA 788

FAMILY COURT OF AUSTRALIA

JOELSON & JOELSON [2014] FamCA 788

FAMILY LAW – CHILDREN – Best Interests – Where it is agreed that the children should live with the mother and the mother shall have sole parental responsibility for them – Where the main dispute relates to the supervision of the father’s time with the children – Where there are two children aged 13 and 10 –  Where both parties seek that the father’s time with the children be supervised – Where the mother seeks that a commercial agency supervise the father’s time indefinitely – Where the father seeks his partner or parents supervise his time for a period of 11 months – Where the father has suffered compromised mental health including a major depressive episode – Where the father has expressed suicidal intentions – Where the father has used marijuana for many years – Where the father has accessed pornography – Where the father has threatened the mother in respect of her and the children – Where such communications fall within the definition of family violence – Where the mother fears for the safety of the children when in the father’s care – Where the father has failed to engage in an ongoing psychiatric relationship – Where the single expert gave evidence that the father lacked insight to understand the risks associated with his mental illness – Where the single expert opined that supervision by a commercial agency would be the safest option – Where it is ordered that the father spend time with the children once per fortnight supervised by a commercial agency – Where it is ordered that the father attend a treating psychiatrist – Where it is recommended that in the event that after 12 months the father seeks removal of the requirement for supervision, that application is to be supported by a mental health assessment of the father by his treating psychiatrist.

Children and Young Persons (Care and Protection) Act 1998(NSW) s 27

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC

Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Joelson

RESPONDENT: Ms Joelson

FILE NUMBER: SYC 1832 of 2012

DATE DELIVERED: 19 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 25 – 27 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Shepherds the Family Law Specialists

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

COUNSEL FOR THE RESPONDENT: Mr Eardley

Orders

(1)By consent the mother shall have sole parental responsibility for the children J Joelson born … 2001 and K Joelson born … 2004 (“the children”).

(2)Prior to making decisions about any major long term issues the mother shall give the father as much written notice as practicable; include in that notice, information about the nature of the decision to be made and the reason for making the decision; consider any written response from the father; and provide the father with written notice of the decision when it is made.

(3)By consent the children shall live with the mother.

(4)The children shall spend time with the father, unless the parties otherwise agree in writing, under the supervision of an employee of C Contact Service (or another supervisor if agreed between the parties) (“the supervisor”) at a venue to be agreed between the parties and the supervisor, as follows:

(a)Subject to the availability of C Contact Service, each alternate Sunday, for a period of five hours, commencing at a time to be agreed between the parties and the supervisor;

(b)At such other times as are agreed between the parties and the supervisor; and

(c) The costs of the supervision shall be shared equally between the parties.

(5)For the purposes of order 4 each party shall:

(a)Within seven days contact C Contact Service (…) and do all acts and things necessary to comply with the intake procedure of C Contact Service, including but not limited to completing any forms and attending any assessment interviews as requested;

(b)Comply with all reasonable rules of C Contact Service and with all reasonable requests and directions of the staff of C Contact Service; and

(c)In the event that the parties agree on a commercial supervision agency other than C Contact Service the parties shall act in relation to that agency in accordance with the requirements of (a) and (b) above.

(6)Subject to the availability of the supervision arrangements in respect of the father for those occasions at which the children will also attend, both parties are at liberty to attend school, sporting or extracurricular activities for the children.

(7)Unless the parties otherwise agree the mother shall deliver the children to the father’s residence at the commencement of each occasion of time with the father and subject to the availability of the supervisor, the father shall return the children to her residence at the conclusion of each such occasion.

(8)Unless the parties otherwise agree, the parties shall facilitate the children communicating with the father by telephone each Thursday between the hours of 6.00 pm and 8.00 pm with the father to initiate the communication by calling the child J on his mobile telephone.

(9)The parties shall otherwise facilitate the children or either of them contacting the other parent at the initiative of the children, at any reasonable time.

(10)Upon a request made by the mother to him by SMS message or telephone made on no more than four occasions in the 12 months following this order, the father shall forthwith submit himself to X Pathology for urinalysis testing (under supervision and chain of custody) where testing will take place within 24 hours of the request being made.  Such urinalysis will be conducted in accordance with the Australian and New Zealand Standard 4308:2001 procedure for the collection detection and quantification of drugs of abuse in urine with the costs to be shared equally between the parties.

(11)Immediately upon the results of the testing being provided to him, the father shall email a copy of those results to the mother’s email address … (or to any other email address provided to the father by the mother).

(12)An order is made in terms of paragraph 7 of the Minute of Proposed Orders of the father submitted on 27 August 2014 as follows:

That within 28 days of these Orders, the father is to attend upon a psychiatrist and thereafter:

(a)       provide the mother with the name of that psychiatrist;

(b)attend upon that psychiatrist at such frequency as deemed appropriate by that psychiatrist;

(c)continue to attend upon that psychiatrist until such attendance is deemed unnecessary;

(d)provide to the psychiatrist an irrevocable authority to enable that psychiatrist to contact and advise the mother in the event that:

(i)the father disengages with that psychiatrist against medical advice; and/or

(ii)the father’s mental health declines such that the children or either of them are at risk in his care.

(13)The father shall comply with the recommendations and prescriptions made by his treating psychiatrist.

(14)The father shall provide to his treating psychiatrist a copy of the report of Dr R dated 12 February 2014 together with a copy of these reasons.

(15)Each of the parents is restrained from denigrating the other parent or the members of the family or friends of the other parent in the presence or hearing of the children or either of them and shall use their best endeavours to ensure that no other person does so.

(16)Each of the parents is restrained from discussing these proceedings with the children and from showing them any documents related to these proceedings.

(17)The parties shall do all things and sign all documents necessary for the renewal of the children’s passports as required, with the mother to retain possession of those passports.

(18)Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.

(19)The Court noted that in the event that after 12 months from the date of these orders the father commences proceedings seeking the removal or amendment of the requirement for supervision of his time with the children, unless the parties otherwise agree or the Court otherwise orders, that application should be supported by a mental health assessment of the father by his treating psychiatrist, that includes reference to the matters referred to in Dr R’s report.

(20)Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joelson & Joelson] has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA  AT

FILE NUMBER: SYC 183 of 2012

Mr Joelson

Applicant

And

Ms Joelson

Respondent

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings involving J who is 13 years of age and K who is 10 years of age.  The main disputes between the parents relate to supervision of the father’s time with the children.

Applications

2.The father’s position changed during the trial and he ultimately sought orders in terms of a minute of orders[1] handed up during submissions on the third day of the hearing.  The applicant father sought orders including orders to the following effect:

[1] Exhibit 10 (reflect his ultimate position)

·that the mother have sole parental responsibility for the children but that before making any decision she:

a)give the father written notice including the nature and reason for the decision;

b)invite the father to respond to indicate his agreement or the reasons for his disagreement; and

c)consider that response

·that the children live with the mother;

·that the children spend time with the father until 31 July 2015:

a)from 5.00 pm Saturday until 5.00 pm  Sunday each alternate weekend save that from the date of the orders until 1 March 2015 that time shall be from 10.00 am until 5.00 pm each alternate Sunday

b)for two consecutive nights on two occasions each year for the purpose of the children accompanying the father camping;

c)on the children’s birthdays from after school to 7.30 pm or if not a school day from 10.00 am to 2.00 pm;

d)from 1.00 pm to 5.00 pm on Christmas Day

·save for b) above that time will occur in the presence of one of the following: Ms Z, the paternal grandmother, the paternal grandfather or such further person as may be agreed between the parties from time to time

·that provided the father resumes attendance upon a psychiatrist and refrains from consuming marijuana he spend time with the children from 1 August 2015:

a)from 5.00 pm Saturday until 5.00 pm Sunday each alternate weekend;

b)for one week in the school holidays following term two and for one week in the Christmas school holidays in Australia or overseas;

c)on the children’s birthdays from after school to 7.30 pm or if not a school day from 10.00 am to 2.00 pm;

d)from 9.00 am to 5.00 pm on Father’s Day;

e)from 4.00 pm on Christmas Eve until 5.00 pm on Christmas day in 2014 and each alternate year thereafter and from 5.00 pm on Christmas day until 4.00 pm on Boxing Day in 2015 and each alternate year thereafter.

·Within 28 days the father attend upon a psychiatrist and continue to do so at a frequency and for a period deemed necessary by that psychiatrist.  The father shall provide the mother with the name of the psychiatrist and provide the psychiatrist with an authority to enable notice to be given to the mother if the father disengages with a psychiatrist against medical advice or if his mental health declines.

·That the father be restrained from consuming marijuana.

·Other than changeovers at school, the mother shall deliver the children to the father’s residence and the father shall return the children to the mother’s residence.

3.The mother sought orders in terms of a minute of orders[2] handed up on the second day of the hearing.  She sought orders including orders to the following effect:

[2] Exhibit 1

·That the mother have sole parental responsibility and that the children live with her;

·that the father spend time with the children supervised by C Contact Service (or another supervisor agreed between the parties) each alternate Sunday for a period of five hours;

·telephone communication between 5.30 pm and 7.30 pm each Wednesday and Friday;

·that the parties cause the children’s passports to be renewed;

·that the father be subject to random urinalysis testing;

·that the father renew a relationship with a treating psychiatrist;

·that the father authorise the mother to communicate with and request documents from his treating medical practitioners and representatives of the drug testing facility;

·that the father be restrained from discussing the proceedings with the children;

·that the parties and the members of their family be restrained from denigrating the other parent and the extended family of the other parent;

·that in default of the father undergoing urinalysis testing and attending his treating psychiatrist, that the father’s time with the children be suspended; and

·that either party have liberty to apply to have the matter relisted.

Written Evidence

4.The applicant relied on:

·Initiating Application of the father filed 24 May 2013;

·Affidavit of the father filed 1 August 2014;

·Affidavit of Mrs S filed 1 August 2014;

·Affidavit of Ms Z filed 1 August 2014; and

·Affidavit of Dr T filed 6 August 2014.

5.The respondent relied on:

·Affidavit of the mother filed 1 August 2014;

·Affidavit of Mrs O filed 1 August 2014;

·Affidavit of Mr O filed 1 August 2014; and

·Affidavit of Ms D filed 1 August 2014.

Expert Evidence

6.The single expert psychiatrist was Dr R who provided a report dated 12 February 2014.

The Hearing

7.The hearing commenced on 25 August 2014.  Although listed for four days the hearing concluded on 27 August 2014 when judgment was reserved.  As the parties’ refined their proposals, planned cross-examination of witnesses was either cancelled or curtailed.  I should record my view that if not rendered unnecessary by an appropriate compromise, the hearing would have been greatly assisted by the involvement of an Independent Children’s Lawyer.  Albeit in respect of important matters, the ultimate dispute was of very narrow compass and at times the parties’ cases lost focus on the issues.

Short History

8.The father was born in 1969.  As at the date of the hearing he was 45 years of age.  The mother was born in 1971.  As at the date of the hearing she was 42 years of age.  The parents commenced cohabitation in 1995, were married in 1998 and divorced on 7 April 2012.  The children J and K are the only children of the parties’ marriage.

Background Facts

9.The parties met while studying at university.  I gather that the father’s studies related to accountancy as he now works as a financial professional.  The mother studied medicine and she now works as a specialist medical professional.

10.The parties commenced cohabitation in 1995 and married in 1998.  The father worked full-time and the mother worked part-time and continued her studies.

11.The child J was born in 2001.

12.From about 2001 the father usually spent Tuesday evenings with a group of friends.  On those occasions they undertook various sporting and other activities over the years, commencing each night, according to the father, once his children were in bed.

13.The father smoked cigarettes and marijuana for many years.  It is his evidence that during the marriage he mainly smoked marijuana on Tuesday nights with his friends.

14.The child K was born in 2004.

15.For two and a half years from 2005 the father undertook further studies for his professional qualification.  The mother completed her specialist training in 2006.

16.The parties separated on 5 March 2010.  The parties lived under the same roof until 1 August 2010.

17.Around the time of separation, the mother saw clinical psychologist, Ms F, regarding the impact of the parties’ separation on the children.

18.From 2010 the father experienced suicidal thoughts and expressed them, together with threatening and abusive comments to the mother.

19.The mother deposed that on 11 May 2010 the father said “If things don’t go my way, I will do something terrible.  I have already thought about it.  Don’t make me click, I’m a bit schiz.”

20.The mother deposed that on 16 June 2010, after selling the matrimonial home, the father was in a rage and was yelling aggressively at the mother.  The mother subsequently locked herself in her room.

21.The mother deposed that on 26 June 2010 the father admitted to having smoked marijuana while he had the children in his care.

22.The mother deposed that on 3 July 2010 the father said to her “I think about suicide every day.  A month ago, I spent all night researching ways to kill myself on the internet.”

23.On 7 July 2010 the parties entered into a s 90C financial agreement, a child support agreement and a parenting plan.  In the parenting plan the parties agreed that the children would live with the mother and spend time with the father on Sundays from 11.00 am to 6.00 pm and at other times agreed between the parents.

24.On 13 September 2010 the father sent an email to her stating “This will be it …, after Wednesday I’ll be dead to you all.”

25.The mother deposed that on 16 October 2010 the father said to her “Fucking cunt.  You are not right in the head” and further on 17 October 2010 “I do wish you were dead – I wish you a long and painful death.”

26.In around January 2011 the father commenced cohabitation with his fiancée, Ms Z.

27.The father deposed that he suffered mild depression in 2011.  He consulted his General Practitioner, Dr P and was prescribed the anti-depressant medication, Lovan (20 mg) in May or June of 2011.

28.The father deposed that his depression became worse in November 2011 and that his thoughts were scattered and he had difficulty concentrating.

29.The father was made redundant on 1 February 2012.  By agreement the father’s child support payments to the mother were suspended from this date.  The father alleged that he had been subjected to bullying at work.  The father commenced unfair dismissal proceedings which were settled in early 2012.

30.The mother deposed that on 12 February 2012 the father said “The only reason I haven’t killed myself is the guilt of leaving the kids behind.”

31.The parties were divorced on 7 April 2012.

32.The report of psychiatrist Dr N, dated May 2012, noted that the father has “cluster B personality traits”.  Dr N also noted “changes to sleep, appetite, weight, libido and anhedonia with passive suicide ideation without formal plan or intent at interview”.  I understand anhedonia to refer to a psychological condition characterised by inability to experience pleasure in acts which normally produce it.

33.On 16 July 2012 the mother became aware of Ms Z’s diagnosis of tuberculosis.  The mother emailed the father questions relating to the condition.  The father responded briefly, noting that the tuberculosis was inactive.  The children did not test positive for tuberculosis.

34.On 21 July 2012 the father ceased spending time with the children.  He recommenced spending time with the children on 23 December 2012.

35.On 8 August 2012 the father said in an email to the mediator words to the effect of: “I am left with no other alternative other than to use my own kids as playing pieces now.”

36.On 16 August 2012 the father wrote an email to the mother saying “… my death wish is stronger than ever and I do intend to be only be seeing my kids one final time.”

37.In September 2012 the father commenced attending Dr T, a psychiatrist.  The father’s Lovan dose was increased to 40mg a day.

38.In November 2012 the child J commenced seeing child psychologist Mr M.  The mother deposed that around this time she suggested to the father that the parties go back to mediation or that the father have supervised visits with the children.

39.The mother called the father twice in November 2012 to let him know that J had to have emergency testicular surgery.  The mother deposed that when the father responded his words were “slurry” and that he did not visit the child.

40.In December 2012 Dr T changed the father’s anti-depressant medication from Lovan to Valdoxan (25 mg).

41.On 19 December 2012 the father said in an email to the mother “… Hope you have an awful Christmas and die a painful death in a car crash.”

42.In January 2013 the father sent the mother emails about his intentions to suicide.  The father deposed that he never attempted suicide and that the threats were a cry for help.

43.On 3 February 2013 the mother contacted Dr T, stating that she was extremely worried about the father’s mental health.  On 19 February 2013 Dr T increased the father’s dose of Valdoxan to 50 mg.

44.In March 2013 Dr T prescribed the father with an additional anti-depressant medication called Olanzapine.

45.A police report dated 26 March 2013 recorded “Police hold genuine fears that [the father] will snap and hurt himself and anyone he holds responsible for the demise of his relationship, including his ex-wife and their children.”

46.On 9 April 2013 an AVO was made ex parte against the father, for the protection of the mother.  On 7 May 2013 a final AVO was made for the protection of the mother.  Since the AVO there have been no direct communications between the mother and father.

47.The father ceased taking Valdoxan on 2 May 2013.

48.On 27 June 2013 the mother filed a Notice of Child Abuse or Family Violence.

49.The mother deposed that from approximately June to August 2013 the father repeatedly stayed in his car or on his motorbike for hours at a time in her neighbourhood.  The mother and her parents saw him on six occasions.

50.On 19 August 2013 the father commenced employment as a financial professional for G Group.

51.On 19 August 2013 interim consent orders were made providing for the father to spend supervised time with the children every second Sunday from 10.00 am for two hours and to have telephone communication with the children.  The father was also required to undergo urine drug testing not more than four times per month.

52.In September 2013 the father ceased taking any anti-depressant medication.

53.The father has not cared for the children overnight since around June 2010, with the exception of Christmas Eve 2011.  The father currently lives in a two bedroom apartment in Suburb E with his fiancée, Ms Z.

54.The mother continues to work as a specialist medical professional and the children live with her in Suburb A.

55.The child J attends KK School and is in Grade 7, the child K attends LL Primary School and is in Grade 5.

The Expert Evidence

56.The single expert was Dr R, a Child Adult and Family Psychiatrist.  Her qualifications include the following: MBBS (1977); Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (1987) and Certificate in Child and Family Psychiatry (1988).

57.Dr R has had extensive clinical experience since 1987.  Dr R currently works in private practice in supportive and exploratory psychotherapy, child and family psychiatry.

58.Dr R prepared a report in this matter dated 12 February 2014.

59.Dr T is a psychiatrist and albeit that the father had terminated their professional relationship, she gave evidence as the father’s treating practitioner.  There is no evidence about her qualifications.

60.Dr T swore an affidavit dated 6 August 2014.

61.The father originally consulted Dr T for two reasons, he needed a report to assist with a workers compensation claim and he was feeling depressed.  At some point the father decided that he would not continue with a therapeutic relationship with Dr T because it became apparent to him that their communication could be revealed in these proceedings and therefore would not be confidential.

The Legislation

62.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

63.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

64.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.  Findings are made by reference to what is in the child’s best interests.

65.For the purposes of the determination of these proceedings, I will adopt the following approach:

a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

b.where possible and relevant, consider and make findings about matters set out in s 60CC;

c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;

d.apply s 65DAA if relevant and assess the proposals in light of that provision;

e.if 65DAA is not relevant, assess the proposals against the best interests criterion;

f.consider and make findings about living arrangements; and

g.make orders.

The Parties’ Proposals

66.The orders sought by the parties changed during the course of the proceedings.  Ultimately, the proceedings were of very narrow compass.  It is agreed that the mother will have sole parental responsibility and that the children will mainly live with her.  It is agreed that the children will spend time with the father.  It is agreed that that time will be supervised, at least in the short term.

67.The range of dispute on the key areas seems to be:

a)How should the father’s time be supervised and should the supervision be indefinite or conclude at some time or on certain conditions being met? and

b)Should the children’s time with the father include overnight time?

Section 60CC Considerations

68.The section specifies the following considerations:

Primary considerations:

Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

69.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[3] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

[3] McCall & Clark (2009) FLC 93-405.

70.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[4]

[4] Champness & Hanson (2009) FLC 93-407.

71.It follows from the background facts that there is meaning in the relationships between the children and the mother.

72.The evidence of the parties about the father’s involvement with the children over the years is almost entirely inconsistent.  The father set out in impressive detail evidence about the involvement he had in the lives of the children since they were born.  He described a loving and close relationship between himself and the children as they were growing up.  The mother addressed a section of her affidavit to “Roles during the marriage including care of the children.” There is no positive reference to the father’s role with the children in that section of the mother’s affidavit.  She deposed that she was the primary care giver, that the father spent little time with the children – leading to an estimated total of two hours a week by the time of separation and that he did nothing around the house.  The mother deposed that the father engaged in computer games, smoking marijuana, accessing pornography on the internet (including under-age pornography), visiting friends and playing golf.  He attended some but not all family holidays, all of which were arranged by the mother and rather than assist, he avoided the children when they were sick or injured.

73.Neither party was cross-examined about their evidence on these points.  Doing the best I can, I take it that both parties have exaggerated their evidence about the father’s involvement and relationship with the children.  In the mother’s case there is only the most oblique suggestion[5] that there are any benefits to the children having a relationship with their father.  I take it that the mother has omitted some positive material to ensure that all of her fears and concerns are fully set out.  For example, the mother’s affidavit does not suggest that despite countless opportunities over the years, she ever observed the same warm interaction and relationship that Dr R observed between the father and the children in her brief observations of the family.  Despite the absence of any reference to it in her case, I take it that the mother does accept that there is a meaningful relationship between the children and their father and that it could continue into the future.  Why else, given the very concerning evidence about the father’s conduct, would the mother pursue orders for the father to spend time with the children?  I asked the mother something like that during her cross-examination and she responded to the effect that she thought that the Court would order time with the father irrespective of the danger he posed to the children.  I found that to be a very disturbing proposition.  It is trite to say that enormous harm could be done if parties ask for orders that they do not believe are in the best interests of children.  These are civil proceedings and albeit not binding on the Court, the range of dispute between parties must, at least, have some influence on the ultimate outcome.

[5] There are limited sources, such as at paragraph 11.6 and 11.7 of the mother’s affidavit which reference the children making positive comments about their time with their father

74.I assume, despite her response to my question, that the mother considers the orders she seeks to be in the best interests of the children.  The mother is obviously intelligent, she was legally represented in these proceedings, she works as a specialist medical professional and as such she is a mandatory notifier of children at risk of significant harm[6].  The submission made on behalf of the mother was to the effect that it is important that the children spend time with their father, however, she wants the children to spend time with the father in a supervised and safe environment.  It was submitted that a commercially supervised environment is most appropriate to facilitate a relationship between the children and their father.

[6] Section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

75.It is common ground that the mother will have sole parental responsibility and that the children will mainly live with her.  Both parties seek orders that will cause the children to spend time with the father.  Dr R observed a warm reaction between the father and the children and reported that the children want to spend time with their father.  Dr R reported that it will be important to J’s development that he be well supported, in a “child focussed” way by the father, if the father has the capacity to provide that support.  She reported that for K, the involvement of a sensitive and supportive father in a girl’s life is of significant assistance to her self-esteem and choice of future partners.  She reported that if the father is capable of providing those experiences to K, then “his current presence in her life is inadequate”.  I understood Dr R to mean by that, if the father is well and capable of meeting K’s needs then he should have more time with her than he does now. 

76.Despite the mother’s evidence, but based on the arguments made in her case, in my view it is an agreed fact that there is meaning in the relationships between the children and both parents and the potential for meaning in those relationships in the future.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

77.The mother filed a Notice of Child Abuse or Family Violence on 27 June 2013.  The risk identified related to family violence.  The relevant facts in the Notice were:

a)Through the father’s actions/inactions of neglecting the children, the child J suffered serious psychological harm requiring attendance with a child psychologist.

b)The father has made threats to harm the [maternal] uncle by hacking him up with a samurai sword.

c)The father has made repeated threats to harm the mother including to kill her and damage her property.

d)The father has made threats to kill the children.

e)The father has made repeated threats of suicide.

78.There was no real challenge to those allegations.  It is the fact that the father has suffered compromised mental health, that he has behaved inappropriately to the children and to the mother, that he has used marijuana over many years and that he has accessed pornography. 

79.The father has made many threats to the mother, both orally and by email in respect of her and the children.  I do not propose to set out all of the communications in evidence but examples of threatening or inappropriate communications with the mother or the children, include the following:

80.After an argument with the mother on 12 September 2010 the father said to the children words to the effect: “Kids, things have just gotten really bad with your mother, it is all too hard and I won’t be seeing you ever again.” As he left within hearing range of the children the father yelled out things such as “Fucking cunt.”  On 13 September 2010 the father sent emails to the mother including words to the effect:

…Finally it is not fair to have a final goodbye with the kids like that after being with them their whole lives.  I will come over Wednesday night to see them again.  Tell them to have a think about what they want to say.  This will be it [mother’s first name], after Wednesday I’ll be dead to you all.

AND

You just don’t get it do you? This is fucking it.  I will be seeing the kids on Thursday.  Never returned from a boy’s weekend blah blah blah.  I have only taken JJ camping once.  So two non-smoking adults isn’t enough? The irrational emphasis you still put on it after all these years, what is wrong with you? And let there be no mistake about whose fault this will be.  The kids will make up their own minds about pot when they are older and will end up hating you for what you are doing.  Dig the knife deeper bitch! You expect me only see the kids at your house or for 7 hours, oh excuse that should read A SIGNIFICANT FUCKING CHUNK of the weekend.  I will be at your house Thursday 7:30 PM to see my kids.

AND

…And tell me to accept help one more fucking time and I will fucking click.  IS THAT FUCKING CLEAR???!!!! this is just you are making this as difficult as possible so just shut the fuck up.”

81.On 13 September 2010 the father sent an email to the mother including words to the effect:

…on with what is important in life and make a rational decision ffs.  A CAMPING TRIP vs KIDS NEVER SEEING THEIR FATHER AGAIN.  Is the decision really that line-ball? You’re thoughts on what is right and wrong is warped.  Never tell me to think about the kids feelings or say ‘it’s all about the kids’ to me EVER again while you’re acting like this I am not the bad guy here, you are and I will be making damn sure the kids know exactly whose fault it is by the time I’ve finished talking to them on Thursday.

82.On 15 September 2010 after a phone conversation with his father the child J looked distressed and said to the mother: “Dad said he was sorry that he said he couldn’t see me any more but he would die without me.”

83.An email from the father to the mother dated 10 December 2010 included:

I’m also thinking about these Sundays.  The whole custody thing seems so crap & fake.  I don’t know if the kids get any benefit from them & I feel like I am being used.  I don’t feel like a dad at all, more like a babysitter…… They obviously don’t miss me much either so I’m wondering why I am being a single man who has every Sunday tied up with someone else’s kids who don’t really give a shit if they see me or not….

84.An email from the father to the mother dated 8 January 2011 included:

I want to see the kids but I’m just wondering why … is it simply for the sake of seeing them? I think they’ll be fine if I don’t see them so I might just have a me day tomorrow, plus I have a heap of things I could be doing instead.  These Sundays are humdrum, I am missing out on the things that are important.  It’s all such a farce.  Can’t really see the point to any of it any more.  May as well just leave my old life well behind me.

85.On 8 August 2012 the father said in an email to a mediator words to the effect:  “I am left with no other alternative other than to use my own kids as playing pieces now”.

86.An email from the father to the mother dated 4 October 2012 included:

Don’t ever contact me again.  I have a 16 year void in my life as far as I’m concerned.  Trying to be a father and not being allowed to be one is worse than not seeing the kids at all.  Nice result! Even if you say the kids stay at my house now, it’s too late.  I don’t want them to stay.  It’s become apparent over the past few months they do not miss me so fuck it.  I am not going to be like a grandma … where it’s a place they will go to but don’t really want to.  My new life is started and I’m trying to forget all those years I wasted on you.

87.Later that day the father emailed the mother:

I have settled, I’m just sick of this sort of pretend dad life after 2 + years.  You seem intent on making my life hell in a [O]-esque sort of way and I want no part of it any more.  I have made a definitive decision so now leave me alone.  Kids can contact me when they like.  They are always welcome to live with me if they want.  The ½ heart jewellery is for [K].  The cufflinks and ring is for [J].  They can share this surfboard and skateboard.  5 years!! Surprised? Bet you didn’t see that one coming.  It was a secret I was going to take to my grave but bugger it, I hope it hurt you at least just a little…

88.On 13 March 2013 the father sent an email to the mother referring in part to her brother in law, Mr U:

Has [Mr U] ‘gone in to bat for me’ now I’ve signed those passport papers?  Nooo, of course not.  Tell him it is only because I thought he was doing something (although a tad misguided) in the interest of my kids that I did not snap at his home invasion on me and next time I won’t hesitate to take the samurai sword from behind my door (sic) start hacking him up.  The people of this world that think they can fucking bully me … they don’t realise I will fuck them up so bad that they should really leave me alone if they want to die a natural death.  Get my fucking kids to call me and encourage them to have a relationship with their Father like you fucking should have done for the past 3 years.  God damn! Crazy bitch

89.This email was particularly concerning to the mother because the father had last seen her brother in law seven months earlier.

90.Many of the communications in evidence fall within the definition of family violence.

91.‘Abuse’ and ‘family violence’ are defined terms.

"abuse" , in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

92.Section 4AB provides:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

93.If I understand the father’s case, it is that the communications were inappropriate but that was in the past and there should be no concerns for the future.  I agree with the first proposition.  The father’s communications include many serious threats to himself, the mother and the children and attempts to not only involve the children in issues that even adults should be protected from but to emotionally blackmail and bully them.

94.The father gave evidence[7] to the effect that in early 2013 he sent the mother some completely inappropriate emails about his intentions to suicide and his remarks about the mother putting herself in his shoes and imagining what it would be like to not see the children.  He notes that while he was having suicidal thoughts he never attempted suicide.

I was feeling so sad that I did not want to die but I did not want to live.  In hindsight, and feeling no longer depressed, these “threats of suicide” were a cry for help.  I was seeking out understanding and sympathy.  I sincerely regret sending these emails to [the mother].

His affidavit goes on:

My thinking at this time was not logical but I thought if [the mother] did herself in my position she might understand how upsetting it would be to have your children removed from your life.  If she could appreciate my position that I was hoping she would have some compassion and start to allow me to be a father and have my children stay overnight at my house.  This statement was excessive and unacceptable and I regret sending that email to [the mother].  There has never been any chance, even when my depression and anger was at its peak, that I would ever harm my children or had thoughts of harming my children.  I would protect my children with my life.  Reading the remainder of that email now I feel disgusted and disappointed in myself for having ranted in such a manner.  I attribute some of this anger to the medication I was taking at the time for my severe depression.

[7] Paragraph 117 of the father’s affidavit

95.The father told Dr R that he was naïve, saying: “I thought I could be abusive to [the mother], just in words … calling her names, being rude to her”.  He told Dr R that he had insulted the mother, calling her fat and a nut bag.  He reported to Dr R that he “said some nasty words to [the mother] to frighten her and annoy her but that was the only intention.”  He agreed with Dr R that one email to the mother could be interpreted as his planning to kill the children.  The father said to Dr R that he wished he had not sent emails to the mother referring to her and the children having car accidents.  It is of great concern that, he nevertheless went on to say that he was aware that (the emails) were nasty but that was “just something she had to cop.”

96.The orders proposed by the mother highlight the concerns she holds about the behaviour of the father.  The mother fears for the safety of the children when in the father’s care and worries that the children will be exposed to physical or psychological harm by him.  The mother referred to several risk factors including the father’s mental health, his access to pornography and marijuana use as factors contributing to her concerns.

97.In particular the mother was concerned with the father’s lack of engagement with a psychiatrist.  The mother referred to Dr R’s evidence that the father lacked the insight to understand the risk factors associated with his mental illness.  Dr R was dissatisfied with the progress made by the father in appreciating his underlying illness and the steps he needed to undertake to ensure he has a program to manage his illness.  The mother raised concerns that if the father’s job or partner were to be taken away that he would be placed in a high risk category.

98.As to the father’s use of pornography, it was submitted that the father has made full and frank concessions in evidence in relation to his use of pornography and that he denies any use of child pornography.  It is not alleged that the children have been exposed to pornography and the mother conceded that this issue is not at the forefront of her mind.  The father’s counsel submitted that the mother’s complaints regarding pornography date back to 2010, and in the meantime the children have spent unsupervised time and overnight time with the father and therefore, no weight should be placed on this allegation. 

99.It is an agreed fact that the father has accessed pornography.  There is no compelling evidence that the father has accessed child pornography.  It is not alleged that the children have been exposed to pornography by the father.  There is no positive aspect for the children in the father’s use of pornography but given the other concerns about his behaviour, this is not of greatest concern.

100.The maternal grandmother made allegations of the father inappropriately hugging the child K.  The mother made no such observation or concern.  Counsel for the father submitted that no weight should be attached to this allegation and I agree.

101.In terms of the father’s use of marijuana, the mother’s counsel submitted that the father has consumed marijuana for a period of 28 years and does not have insight to the dangers of marijuana consumption.  The mother referred to an incident where the father took the child J on a camping trip with a group of friends and at least one of the friends was smoking marijuana.  I understood the father to confirm that marijuana was consumed by at least one adult during camping trips with children.  The father also used marijuana during visits with friends on Tuesday nights.  On occasions he supplied marijuana for use on those evenings.  At least some of those occasions were at houses where children lived.  While the father had provided 43 negative drug tests, the mother submitted that the tests, absent a psychiatric plan are not enough and she sought orders for the father to continue the urinalysis testing.

102.It was submitted by his counsel that the father ceased using marijuana in around May of 2013.  Orders of 19 August 2013 provided for the father to undergo urinalysis no more than four times per month.  The father has provided 43 negative urinalysis tests from the previous 12 months.  The father submits that marijuana is no longer a part of his life.  The father is willing to submit to an order that he will not consume marijuana; however he is reluctant to continue undergoing urinalysis testing. 

103.The father’s history of marijuana consumption is of concern.  It is of concern that the father consumed marijuana for many years and in premises occupied by or at locations shared with children.  It is of concern that the father sought to minimise the importance of this issue.  In addressing this issue the father seemed more concerned about the way the issue came to light rather than about the drug use itself.  From March – June 2010 the mother took several photographs of the father’s marijuana and paraphernalia around the house.  The father alleged that some of those photographs were staged by the mother but conceded that during the parties’ marriage he smoked cannabis, including on some Tuesday nights with his friends.

104.Although the father was concerned that the mother staged photographs purported to be of his drugs and drug paraphernalia at the family home, he did not dispute that some of the photographs were pictures of bags of marijuana similar to the marijuana he acquired and used and that the bong/s depicted in the photographs were his.  He did not dispute that from time to time he kept drugs at the family home.  He said that he kept them in a room under the house, accessible through an unlocked lattice door.

105.It would be remarkable if the children were entirely unaware that marijuana was consumed by their father and his friends.  It is illegal to use or possess marijuana.  Given the father’s history involving compromised mental health it is of concern that the father used an intoxicating drug that can impact on awareness and judgment.  It is more alarming that he kept and/or used the drug in premises occupied by children, including his own children.

106.The other problem, as the email communication between the parties reveals, is that as much as the mother expressed her concern about the father’s consumption of marijuana, the more the father resisted her views and sought to justify his own.  Again he seems more concerned about being challenged than about the issue itself.

107.Counsel for the father conceded that the key risk in this matter relates to the father’s mental health.  In the period surrounding separation and following, the father suffered a major depressive episode.  Two stressors in the father’s life were referred to including the breakdown of the marriage and subsequent disputes regarding time spent with the children; and the father’s workplace issues resulting in him being made redundant on 1 February 2012.  It is not disputed that the father’s mental health has been compromised, that the father withdrew from the children at times and that he engaged in correspondence with the mother that was inappropriate.  The father gave evidence that there was a time that he was not thinking clearly and conceded that the way he interacted on the mother impacted on his relationship with the children. 

108.The father gave evidence that Valdoxan, an anti-depressant medication that he was prescribed on 2 November 2012, caused him to be agitated and aggressive.  Dr T noted that this drug uncommonly causes a reaction including aggression in approximately one out of 1,000 patients.  The father concedes that he was angry prior to commencing this medication, however submits that following a final AVO being made in March 2013 to protect the mother, that he ceased communication with the mother and this led to a marked change in his relationship with the children.  It was also suggested that from around May 2013 when the father had ceased taking Valdoxan and using marijuana, there were no incidents of the father expressing suicidal intent.

109.It was submitted for the father that the risk currently posed by his mental health is not as serious as it was in early 2013.  Dr T and Dr R gave evidence that the father is no longer clinically depressed.  Dr R also referred to the importance of not stigmatising an individual who has a mental illness.

110.Finally, the father’s counsel referred to the risk arising from the father’s narcissistic personality traits and the impact they have on the father’s capacity to relate to the children.  Counsel referred to the father’s reference to K’s “hairy legs” and that while Dr R’s evidence about the appropriateness of that comment is unchallenged, the comment was made in an artificial environment where the father had limited time to engage with the children as individuals.

111.In addressing the fact that the father has not engaged with a psychiatrist to address his significant mental health issues, his counsel referred to Dr T’s evidence that the father withdrew from the therapeutic relationship after having learnt in April 2014 that the records of the therapy session were likely to be subpoenaed in these proceedings.  It was submitted that the father now accepts that he should engage in an ongoing therapeutic relationship with a psychiatrist however he opposes an order sought by the mother that she be able to freely communicate with his psychiatrist.

112.It is the father’s case that he was angry in the past and that for a period, perhaps associated with his depression or certain medication he was on, he said and did inappropriate things.  The inference is that, all is well now.  There is evidence that challenges that conclusion.  The father told Dr R that he hated the mother.  Dr R reported that he said: “he had not hated anyone in his life until now” and “my hatred of (the mother) lead to me acting in an unacceptable manner”.  Those responses do not suggest that the father’s anger had abated.

113.The father was asked in cross-examination whether he continues to hate the mother.  He did not dismiss that proposition out of hand.  After a significant pause, presumably for careful reflection, the father’s answer was to the effect that his feelings were not still at the level of hatred, that he despised her, rather that he had moved on and that he just has no time for her.

114.The evidence suggests that the father’s feelings have not improved.  A post critical of the mother was submitted to a professional rating website called “…” on 6 June 2014.  The post reads: “An obnoxious [professional] with an arrogant attitude.  ...  Find someone else, this [professional] is no good.”

115.The father was cross-examined about that post and denied that he was responsible for it.  Although there were two subsequent posts on the website in relation to the mother (both positive), the post submitted on 6 June 2014 was the first post on that site in relation to her.

116.The father concedes that he submitted a post on the same website on 6 June 2014 in relation to Dr R.  It beggars belief that the first ever post on the website in relation to the mother was made on the same day that the father made his post on the same site, in relation to Dr R and that he did not make it.  It is likely that, if not hatred, the father continues to harbour antipathy and ill-will towards the mother of his children.

117.Although potentially disastrous, one can understand the logic of the father curtailing his professional relationship with Dr T.  That said, it was, and is, critically important that he maintain a relationship with a treating psychiatrist – whether with Dr T or someone else.  The interruption of the father’s clinical relationship with a psychiatrist was of great concern to Dr R who opined that such a relationship is advisable for three to five years after a serious illness such as the father’s major depression.

118.Section 60CC (2A) deals with the weight to be given as between the primary considerations:

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

119.It is probably that the relationships between the father and the children are meaningful and have the potential to be meaningful in the future.  The father suffered an episode of mental illness and said things that suggested he contemplated self-harm, wished that harm come to the mother and threatened harm to the children.  The ultimate task in these proceedings is to identify living arrangements that will address the children’s relationship with their father and keep them safe from the risk of abuse or neglect.  The last consideration is to be given priority over the first.

Additional considerations

(3) (a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

120.The children want to spend time with their father.

121.The child J told Dr R that he probably wanted to spend more time with the father – “maybe every second weekend from Saturday to Sunday.” Dr R said that this was not surprising and doubted that the expressed wish could be adequately explained as the boy saying something to please his father.  Dr R considered that J has his own investment in a fuller relationship with his father.  The child K said she knew her mother was afraid of the father but she did not share those fears nor did she think that J shared those fears.

200.As to the identity of the supervisors, the safer and therefore preferable course is a commercial agency.  Dr R had pause to think about Ms Z and a lack of information to address her concerns.  I am in the same position.  No effort was made in the father’s case to address the matters raised with Dr R.  There was a narrative required in respect of Ms Z telling Dr R that she had no experience of abuse; Ms Z’s representation that her husband was violent and abusive; and the fact that a court had decided that her children would be best left living with him.

201.I hasten to say that it reflects great credit on Ms Z and on the father’s parents that they would offer to supervise the children with the father.  The supervisory role can be very uncomfortable and can put the supervisor in a highly conflictive position.  Ms Z does not have an extensive relationship with the children. The child K told Dr R that Ms Z is “nice” and the child J described “not mind(ing)” Ms Z, however he did not know her that well.  I have no reason to believe that Ms Z or the paternal grandparents would be motivated by anything but their affection for the children and would want to promote their best interests.  The worry is not about all being well but as to what could go wrong.  Dr R used the term “narcissistic insult” and the concern here is that the father is highly likely to resent, resist and be frustrated by any supervision.  In her communication with the mother, the paternal grandmother revealed her doubts about her or her husband being able to constrain the behaviour and attitudes of the father. 

202.There can be no comparison between the risk to the children from the discomfort of the time with their father being supervised by a commercial agency and the potential harm to them if the father resumes the behaviour towards them and their mother evidenced in these proceedings, let alone if he acts on his previously expressed intentions. As detailed above, the father has made many threats to the mother, bothy orally and by email in respect of her and the children. The father has threatened suicide and harm to the children and the mother has given evidence that she fears the father will hurt the children. Dr R made clear that the father does possess risk factors for acting out against himself or others and that she would not be comfortable with the children spending unsupervised time with the father until she saw history from a psychiatrist who knows the father well and could confirm his mental state. Against this background a cautious approach needs to be taken in relation to the time the father spends with the children.  Finally, the fact that the mother holds the fears she does, is relevant in itself.  Particularly as those fears have a rational foundation.

203.I will make orders in terms of those proposed by the mother.  Again, they allow for other arrangements by agreement.

204.Unfortunately, the requirement for a professional supervisor will necessarily restrict the available time between the father and the children.  The parties’ submissions did not assist in respect of precise times or days.  Again, I will make the orders proposed by the mother in the expectation that if other arrangements are possible or necessary to suit the parents, the children or the supervising agency then those arrangements can be put in place by agreement.

205.It follows that I will not order block time or overnight time.

206.The father has proposed orders about changeover.  They seem sensible and I will make them.

207.The parties have different proposals about telephone communication.  I was not assisted by submissions about the reasons for those differences.  In my view, provided there is the provision sought by the mother for the children to otherwise initiate contact, once a week is appropriate, in accordance with the father’s proposal.  The parties have nominated different days and slightly different times.  I will adopt the father’s proposal.  I have changed the wording in relation to the child initiated communications so that there is an obligation on the parties to facilitate those communications.

208.The father’s proposal allowing either parent to attend school, sporting and extracurricular activities of the children is appropriate but, unless the parties otherwise agree, in respect of the father’s attendance that will depend on the supervision arrangements.

209.The father asks the Court to note that he will facilitate requests from the children to bring a friend with them during their time with the father.  I will not make that notation.  There is no doubt in my mind that the father’s gesture is well meant.  However, for obvious reasons it will not be appropriate to support such requests until it is unambiguously safe to do so.  In practical terms that will mean the mother coming to that decision and as always, there will be issues about the informed consent of the parents of those children.

210.The mother proposes an order for the renewal of the children’s passports and that order is appropriate.

211.As to the father’s use of marijuana, apart from the important fact that it is illegal, there are three other issues.  Firstly, marijuana could impair the father’s parenting capacity and therefore the children could be at risk when they are with him.  Secondly, further use could have a deleterious effect on the father’s mental health more generally.  Finally, the children could be exposed to marijuana use by the father or someone else when they are with the father.  The existing regime of testing is too onerous.  However, relapse is common in the case of a long term drug association and the best course to protect against that might be for the mother to have the right to require random drug screens – perhaps four times a year from the date of the orders.  In that way, rather than legal action, a concern prompted by her own observations or something said by one of the children or a supervisor, can be quickly addressed.

212.The mother proposes an order restraining the father from using marijuana.  New South Wales has such a law already in place.  The ideal of restraining a person from an illegal activity has obvious problems.  Apart from anything else, what sort of person would be deterred from illegal activity because it would also leave them vulnerable to contravention proceedings under the Family Law Act?  The father is a man of obvious intelligence.  He must be aware that the supervisors and the mother would be justified in suspending his time, among other reasons, if he exposes the children to the use of marijuana, whether by him or someone else in his presence.

213.Each of the parents proposes orders in relation to the father restoring a therapeutic relationship with a psychiatrist and each proposes orders about communication between the psychiatrist and the mother.  I prefer the wording of the father’s proposed order.  The important thing is that the psychiatrist to be authorised to contact the mother if the father breaks off that relationship or if the children are at risk from the father (that necessarily implies any risk to their mother) and that the psychiatrist has Dr R’s report and these reasons to understand the context for that authority.  Beyond that information, the father is entitled to consult with his treating doctor in confidence. 

214.The requirement that the father genuinely resume a therapeutic relationship with a psychiatrist is for all practical purposes, unenforceable.  It is critical that the father understands that such a therapeutic relationship is first and foremost, for his benefit.  As is argued in the mother’s case and as Dr R observed, the children will benefit from a relationship with a father who has good mental health.

215.Each of the parents proposes a non-denigration order.  I prefer the order proposed by the father.  Insofar as the mother’s proposal seeks to restrain persons who are not parties to the proceedings, it would be unenforceable.

216.Each of the parties proposes an order aimed at protecting the children from exposure to these proceedings.  I prefer the father’s proposed order as it extends to documents related to the proceedings but I do not favour the children being show any documents, including the court orders.  They do not need to know about the injunctions etc.

217.The mother also proposes an order that in default of the father undergoing urinalysis testing and attending his treating psychiatrist at least fortnightly, that the father’s time with the children be suspended.  I do not propose to make a self-executing order to this effect. An order of this nature is likely to cause difficulty.  It is not clear what is meant by the word ‘default’ in this context and the order would be difficult to enforce on this basis.

Conclusion

218.Much of the parenting arrangements were agreed by the parties.  The major dispute between the parents related to the duration of supervision of the father time and who should be the supervisor.  The evidence includes a basis for serious concerns about the father’s mental health and behaviour.  The necessary priority in orders about time and supervision is to ensure that the children will be safe.  The orders made are far from ideal and hopefully can be made less restrictive once the father has established progress, including that the concerning aspects of his mental health have been addressed and he has a healthier perspective in relation to the mother.  It would be expected that unless the parties otherwise agree to changes, any fresh proceedings to review the arrangements would not be instituted until those matters have been addressed and in any event, not within 12 months.

219.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the machinery orders.

220.Mention should be made of the post by the father in respect of Dr R on a professional rating website ...  The post was made after receipt by the parties of Dr R’s report.  Among other complaints the post questioned Dr R’s expert status in Family Court matters and the quality of her report.  It complained about Dr R’s methods, alleged mistakes in her report and made the remarkable and illogical assertion that the fact that Dr R has been cross-examined in many cases suggests that her reports are inaccurate.  The father’s conduct in this regard was wholly inappropriate and could be seen as an attempt by him to damage a witness because of the evidence given by that witness in proceedings.  The problem is compounded because the complaints were neither fair nor rational.  That is conclusively demonstrated by the fact that not one of the posted complaints was part of the father’s case before the court.  That is to say, no submission was made in the father’s case suggesting that one or more of Dr R’s opinions or recommendations should be rejected or questioned on any of the bases mentioned in those complaints.  Far from seeking to challenge or distinguish it, the father’s case relied in significant part on Dr R’s report.  Where their evidence addressed similar issues there was no substantial conflict between the evidence of Dr R and of the father’s treating psychiatrist.

221.No effort was made in the father’s case to explain or justify his posted attack on Dr R’s reputation.  One could speculate that it was yet another manifestation of the personality traits of the father referred to by the experts and in evidence before the Court but that cannot excuse him thrashing about seeking to harm people.  An attempt to damage a witness because of their evidence can support a charge of contempt of Court.  If it has not already been done, the father’s legal representatives should ensure that his conduct in this instance is condemned by them in the strongest terms and is never repeated.

I certify that the preceding two hundred and twenty one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 September 2014

Associate: 

Date:  19 September 2014