Jolly and Minton
[2017] FamCA 837
•20 October 2017
FAMILY COURT OF AUSTRALIA
| JOLLY & MINTON | [2017] FamCA 837 |
| FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – with whom a child communicates – allegations of violence – mental health issues involving father – whether the father’s mental health poses an unacceptable risk to the children in the unsupervised care of the father – whether father poses an unacceptable risk given the alleged history of family violence – Orders that father spend supervised time with the children with such time to be supervised by the paternal grandparents |
Family Law Act 1975 (Cth) ss 60CC
| APPLICANT: | Ms Jolly |
| RESPONDENT: | Mr Minton |
| INDEPENDENT CHILDREN’S LAWYER: | Bishops |
| FILE NUMBER: | LNC | 447 | of | 2013 |
| DATE DELIVERED: | 20 October 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 1, 2, 3, 4 May 2017 and 4 and 5 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fitzgerald |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Higgins |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bishops |
ORDERS
Previous Orders
All previous parenting orders relating to B born … 2009 and C born … 2011 (‘the children’) are discharged and the following orders now apply.
Parental Responsibility
Ms Jolly (‘the mother’) shall have sole parental responsibility for the children.
The mother shall notify the Mr Minton (“the father”) of any significant illness and/or medical treatment that the children undergo.
The mother shall keep the father informed by text message as to any significant events in terms of the children’s education.
The mother will provide authorities to the father to obtain copies of the children’s school reports.
The mother will do all acts and sign documents to ensure that the children’s respective medical files note the father as a person to whom that entity or person may provide information regarding the children.
Live with
The children shall live with the mother.
Spend time with Orders and Injunctions
The father may spend time with the children subject to the conditions as set out in these Orders.
The father’s time with the children shall at all times be supervised.
The father’s time with the children shall take place either at:-
(a)the K Town Children’s Contact Service, and/or
(b)under the supervision of Mr A Minton and Ms D Minton (‘the paternal grandparents’) and/or,
(c)such other supervisor or supervisors as is agreed to in writing between the mother and the father;
(d)if the supervisor agreed pursuant to order 10(c) is a commercial supervisor the father will pay that supervisor’s expenses.
In the event the father’s time with the children is under the supervision of the paternal grandparents the follow conditions shall apply:-
(a)time shall be confined to day visits for no longer than six (6) hours’ duration unless longer time is agreed in writing between the mother, father and paternal grandparents;
(b)time shall be for the six (6) hours sometime between the hours of 9.00 am and 4.00pm (if no agreement then from 10.00am to 4.00pm) for up to two weekend days on the fifth week of the father’s work rotation;
(c)during the school holiday periods, provided the father has given five (5) weeks’ notice, on two (2) additional days in the mid-year holidays and five (5) additional days over the Christmas/New Year holiday; being such days as are reasonably agreed to by the mother;
(d)on Christmas Day 2017 and each alternative year thereafter from 2.30 pm to 8.00 pm and on Christmas Day 2018 and each alternative year thereafter from 9.30 am to 2.30pm;
(e)on the father’s birthday, if it falls on a weekend day or during the Easter period then from 1.00 pm to 6.00pm and if it falls on a week day then 3.30pm to 6.00pm;
(f)on Father’s Day from 10.00am to 6.00 pm,
(g)other or alternate day time contact as is agreed in writing with the mother, father and paternal grandparents;
(h)The father must follow and comply with the reasonable directions of the paternal grandparents including the direction to terminate the visit;
(i)The father is restrained from driving a motor vehicle (including a motor bike) while the children or either of them are in it or on it, and the father shall hand his car keys to the supervisors during visits;
(j)the visits shall be at the home of the paternal grandparents unless there has been consultation with the mother and the paternal grandparents;
(k)the father is restrained from taking the children or either one of them from the paternal grandparents’ sight; and
(l)unless otherwise agreed with the supervising paternal grandparents the mother will take the children to and collect the children from the residence of the paternal grandparents provided they live in the greater K Town area.
The father’s time with the children is conditional upon the father attending to the following:-
(a)the father shall attend upon a relevant health care provider once a month for the purpose of receiving a depot injection of an appropriate antipsychotic drug;
(b)the dosage of the depot injection is to be determined by the father’s treating psychiatrist and/or medical practitioner;
(c)the father will attend upon his treating psychiatrist and/or medical practitioner for a review of his mental health once a month; and
(d)the father shall within twenty eight (28) days consult a psychologist (who can be his present psychologist) and obtain professional help to manage the Morbid Conjugal Jealousy Disorder from which he suffers and continues with the therapy or treatment recommended by such psychologist.
The father may continue to communicate with the children once a week by telephone.
The mother is permitted to terminate telephone communications between the father and the children in the event that the father becomes abusive to the mother, to the children and/or denigrates the mother to the children.
This order is to act as an irrevocable authority on behalf of the father directed to the father’s treating Psychiatrist, Psychologist, General Medical Practitioner and Adult Community Mental Health Service to release to the mother and the paternal grandparents, information regarding the father’s mental health including, but not limited to the following matters:-
(a)confirmation that the father has attended upon the relevant health care provider for the monthly depot injection, the dosage given, the recommended dosage and monthly review;
(b)the father’s failure to undergo treatment recommended by such health care professionals;
(c)relevant updates as to the current status of the father’s mental health;
(d)failure by the father to attend scheduled appointments; and
(e)the father showing symptoms that he is moving from substantial remission to relapse in terms of his Paranoid Schizophrenia or Morbid Conjugal Jealousy.
In the event that such medical providers need or request a written direction and irrevocable authority to give effect to the authority contained in the preceding order; the father shall provide such written authority to the mother and/or the paternal grandparents within twenty one (21) days of written request by one or other of them.
Any such irrevocable authority shall expire on the 18th birthday of the youngest child being … 2029.
In the event the father fails to comply with these Orders (including the personal protection Orders) and any Orders made pursuant to the Family Violence Act 2004 (Tas), then the father’s time with the children shall be suspended until there is full compliance by the father.
Injunctions
Neither the mother nor the father shall denigrate, belittle or demean the other party in the presence of or within the hearing of the children.
The father is restrained from approaching the mother at any time, including at changeover.
The father be and is restrained from spending time with the children other than in accordance with these Orders.
The father is restrained from spending time with the children at his home.
The father be restrained from questioning the children about the mother.
In general terms:-
(a)the father is restrained from removing the children or either of them from the care or supervision of supervisors;
(b)the father shall follow the reasonable directions of the supervisors; and
(c)the father shall continue to attend upon his treating psychiatrist or other delegate of the psychiatrist (health care professional) and follow all reasonable directions given by such health care professionals in respect of treatment and medication for his paranoid schizophrenia and Morbid Conjugal Jealousy Disorder.
Personal Protection Order
For the personal protection of the mother, the father is restrained from:-
(a)assaulting, molesting, harassing, stalking, abusing or otherwise interfering with the mother or children;
(b)denigrating the mother to the children or in their presence and/or hearing;
(c)entering or going within fifty (50) meters of the boundary of any premises in which the mother may be staying or living from time to time;
(d)entering or loitering within fifty (50) metres of any other place of employment of the mother, unless the father has a bona fide reason for entering that place of employment; and
(e)entering or going within fifty (50) metres of the boundary of the premises of E School or any other school the children may attend from time to time
These orders personal protection include orders which have been made for the personal protection of the mother ,and the children and a breach of which attracts the power of arrest without warrant pursuant to Section 68C of the Family Law Act 1975 (Cth).
Pursuant to s 68(C) of the Family Law Act 1975 (Cth) that if a Police Officer believes, on reasonable grounds, that the father has breached the injunction set out in in these Orders by:
(a)causing or threatening to cause bodily harm to the mother or children, or;
(b)harassing, molesting or stalking the mother or either of the children;
Then the Police officer may arrest the father without warrant.
Order pursuant to s 64D(2) of the Act
That pursuant to s 64D(2) of the Family Law Act 1975 (Cth) neither the requirements for supervised time and no overnight time can be varied or discharged by way of a parenting plan.
Generally
Each of the parties shall keep the other notified as to their current postal address, email addresses and contact telephone number.
The father’s applications that the children are enrolled in a private school, that he be permitted to attend sporting functions, school parent teacher interviews and school activities are dismissed.
Within fourteen (14) days of these orders the Independent Children's Lawyer shall forward:-
(a)to the paternal grandparents copies of the two Single Expert reports of Dr F, the January 2017 report by Dr G, these Orders and Reasons for judgement; and
(b)to the father’s treating Psychiatrist, Dr G, his Psychologist, General Medical Practitioner and the Adult Community Mental Health Service – THO – North; copies of this Order and the Reasons for Judgement upon which the Order is based. In doing so the Independent Children's Lawyer shall highlight to such healthcare professionals the part of the Reasons headed ‘A letter to the father’s health care professionals’ at the conclusion of the those Reasons.
The mother may at any time forward to the father’s health care professionals or proposed healthcare professionals (or any one or other of them) copies of this Order and the Reasons for Judgment upon which the Order is based and in doing so the mother shall highlight to such healthcare professionals the part of the Reasons for Judgement headed ‘A letter to the father’s health care professionals’ at the conclusion of those Reasons.
All extant applications, other than costs, be and are dismissed.
Any application as to costs to be made in accordance with the Family Law Rules 2004 (Cth).
Exhibits ICL1, ICL2, ICL3 ICL9, ICL11 F1, F2, M1 and M8 shall be retained on the Court file. These are the parties case outlines, their proposed orders, the Single Expert Reports, the Child Responsive Program Memorandum and the undertaking signed by the paternal grandparents.
At the expiry of any appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and the remaining exhibits shall be returned to the party who tendered them.
Pursuant to s 65DA(2) and s 62B 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 these particulars are included in these orders.
IT IS NOTED
On 4 September 2017 the paternal grandparents gave a formal undertaking to Court, in a signed document and in evidence, and such undertaking was accepted by the Court. The paternal grandparents undertook as follows:-
1. We [the paternal grandparents of the children] will supervise the time ordered by the court between [the father] and the [children] and not allow the children to be alone with the father.
2.To remove the children from the father and terminate the spend time with in the event of
a.The father denigrates the mother to the children or in their presence; or
b.The father show symptoms of delusions such as hearing voices, mentions “H” or involvement of the military, being withdrawn, hostile and/or aggressive, showing other signs of psychosis, relapse and/or jealousy toward the mother/children/grandparents; or
c.The father appears to them to be affected by alcohol and/or cannabis and/or other illicit substance; or
d.In the event the father fails or refuses to follow their reasonable directions regarding the children and/or compliance with the conditions as to spending time with the children as set out in the court order (copy to be provided to them).
3.In the event the father fails and/or refuses to follow their reasonable directions, shows signs consistent with relapse or other deterioration in mental health they are to contact the mother and/or Tasmania Police and/or CAT (Mental Health Service in K Town).
4.Not to allow the father to drive a motor vehicle with the children in it.
5.In the event the father seeks to exercise time away from the residence of the grandparents then they shall make reasonable efforts to contact the mother and seek her consent and in the event the mother does not provide that consent then time shall take place at their residence.
6. In the event the father withdraws any authority to allow them to access and/or consult with his mental health providers they will immediately notify the mother and if necessary they can cancel the visits.
7.That at any time they cannot supervise the time and/or seek to be relieved of the undertaking they should advise the mother.
8.That in the event that the paternal grandparents become concerned for their own health and wellbeing of a consequence of the father’s behaviour toward them they are able to cancel visits and shall notify the mother.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS FURTHER NOTED that publication of this judgment by this Court under the pseudonym Jolly & Minton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 447 of 2013
| Ms Jolly |
Applicant
And
| Mr Minton |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Ms Jolly (‘the mother’) has commenced proceedings against Mr Minton (‘the father’) in relation to the parenting arrangements for their children, B (‘the son’) aged eight and C (‘the daughter’) aged six (‘collectively the children’). These proceedings were commenced in November 2013 and were not concluded until this hearing. That delay arose primarily as a consequence of the ill health of the father.
This is a particularly sad case. The father deeply loves the children and they love him. The children enjoy spending time with him and he with them. The father suffers from a serious mental illness which became symptomatic in early 2012, if not before, and this caused him to engage in abusive and violent conduct to the mother, his family and others.
Dr F (‘the single expert’) and Dr G (‘the father’s treating psychiatrist’) have each diagnosed the likelihood that the father suffers from Paranoid Schizophrenia. The single expert has diagnosed that the father also suffers from a continuing Delusional Disorder of Jealous Type. The father rejects these diagnoses.
The evidence is, and I accept, that these conditions cannot be cured; they can only be managed.
At times the father has eschewed medication. In the last three years the father has been medicated by a monthly injection (the depot injections). The father struggles with the side effects of the medication and I am concerned as to his willingness to be compliant with his medication regime.
The impact of the father’s mental health conditions has been profound, including in terms of its impact on the mother. She does not trust him and struggles to cope with even the thought of the father spending unsupervised time with the children. Despite this and to her credit the mother recognises the love the children have for the father and he for them. In that regard she is both willing and encouraging of the children spending time with the father, provided it is properly supervised. Also, to her credit, she trusts the father’s parents, Mr A and Ms D Minton (‘the paternal grandparents’), including their ability to undertake the onerous task of supervision of the children with the father.
The father does not like nor does he respect the mother.
The father has abused drugs throughout his adult life and in addition he abuses alcohol. Between 2010 and 2016 he was detected on three occasions driving whilst intoxicated with alcohol. At times he rejects civil law, over recent years he has been convicted on up to five occasions of driving a motor vehicle whilst his driver’s licence was expired, cancelled or disqualified.
The mother has not tried to prevent the father from seeing or speaking with the children. At present the father is able to speak to the children by telephone without a court order. The father is seeing the children at the K Town Children’s Contact Centre. The father regards that service as a ‘jail’ and has missed a number of opportunities to spend time with the children.
He is determined that they will spend time with him on an unsupervised basis.
Given the circumstances of this case, I am satisfied that the father presents an unacceptable risk to the care of the children and to the well-being of their primary carer, the mother, if he spends unsupervised time with them.
As a result of the father’s mental illness his previously very good relationship with the paternal grandparents has or had broken down. He believes that they are part of the problems which he faces in seeing the children unsupervised. That in itself is probably part of the health difficulties with which the father struggles.
Late in the trial the paternal grandparents gave oral evidence at the request of the mother and of the father. They said they would be prepared to supervise time provided it occurred during the day and not overnight. They provided an undertaking to the Court in respect of such supervision, which undertaking the Court accepted.[1] This is one of the two supervision options available to the Court.
[1] Exhibit ICL9.
The other evidence of available supervisors was via K Town Children’s Contact Service (‘the Contact Service’). The father has been seeing the children at that Contact Service for over three years. There are only very limited long term places available at the Contact Service. This is four or five times per year and on special occasions.
The father does not like the Contact Service or its staff. He challenges them and he has pushed and, at time, exceeded the boundaries reasonably set by the Contact Service. It is unlikely that the father will accept this type of supervision.
I accept the evidence of the single expert which is that the father suffers from a persistent Delusional Disorder of Jealous type together with a history of other delusions and auditory hallucinations, so the differential diagnosis must include Paranoid Schizophrenia and drug related psychosis.
In the history of the relationship the mother has been subjected to family violence and, in essence, carries the whole of the responsibility for caring for the parties’ two children.
Consequently and understandably, the mother suffers from anxiety from time to time.
The mother has been the primary carer of the children since their respective births. The questions to be determined by this Court are:-
(a)Whether the mother should have sole parental responsibility or whether it should be joint parental responsibility with the father?;
(b)What time should the children spend with the father? The mother’s case it that time should occur but only in a way that is safe for the children. Initially she wanted time in carefully supervised circumstance through the Contact Service. After a conference with a family consultant the mother contacted the paternal grandparents and asked them if they would take on the task of supervision. Consequently, the orders, including protective orders, are set out in her proposed orders tended on the final day of hearing.[2] The father was initially seeking arrangements that the children spend four nights per fortnight with him, including overnight time and half the school holidays. He also sought that he collects the children from after school Friday and returns them to school on Tuesday morning for the mother to collect Tuesday afternoon. The hearing was adjourned from May 2017 to September 2017 to enable the paternal grandparents to return from a long trip and give evidence. In that period the father obtained alternative employment in the Northern Territory. He only spends one week in five in K Town. As such he wanted the children to spend time with him from the Thursday when he returned until shortly before he left the following week. The orders he now seeks are monthly visits, moving to overnight and then unsupervised time;[3]
(c)Whether the children should attend private schools? The father seeks an order that the children attend a private school. That order is opposed by the mother;
(d)Whether the father should attend school and other events? The father seeks orders that he be permitted to attend at school carnivals, fairs and other events. In that regard the father said he would follow directions of a psychiatrist; and
(e)Whether there should be an order for mutual non-denigration of the other party in the presence of the children? The father seeks that neither party denigrates the other.
[2] Exhibit M8.
[3] Exhibit F3.
An Independent Children’s Lawyer was appointed and she provided the balance one would hope for in a parenting dispute.
The mother was represented, however, the father was not. That lack of representation is a terrible burden for the father. Conducting a hearing as an unrepresented person is difficult enough in the best of circumstances, but given the father’s health concerns it is an almost overwhelming burden for him.
In that respect I make no criticism of Legal Aid Tasmania as they have limited resources and apply them as best they can.
I have had regard to the father being unrepresented in terms of the way the hearing was conducted and in terms of the determinations made by me.
BACKGROUND
The father is aged 35 and lives in the K Town area. He is a tradesman by occupation. He changed his employment over the period of the trial and now works interstate on a fly in/fly out basis. The father has at times been estranged from the paternal grandparents and at least one of his siblings.
The mother is aged 33. She and the children live in a three bedroom home. The mother has entered into a relationship with another man but they do not, at present, live together. She has been in that relationship for about 17 months.
The mother is the primary carer of the children, and she does some voluntary work. She also works some shifts in hospitality and does some other part time, casual work. There is no issue between the parties that the mother should remain the children’s primary carer.
The parties commenced their relationship in 2003 and the son was born in 2009.
In 2011 the parties married. In 2011 the daughter was born.
In 2011 the father had his own business. This enterprise, was not as successful as the father desired. The father unsuccessfully sought to join the Defence Forces in late 2011.
The parties lived in Tasmania until January/February 2012.
In January 2012 the father took employment in Western Australia in a ‘fly in fly capacity. He worked in that State in that occupation for a period of about ten months.
The father moved to Western Australia in January 2012, and the mother and children joined him in February 2012.
Whilst the parties were together in Western Australia the mother was assisted at times by the paternal grandparents and then later by the maternal grandmother.
In October 2012 the parties separated and the mother returned to Tasmania with the children.
On her return to Tasmania the mother lived initially with a sibling for a short period of time and then lived with the paternal grandparents until she obtained rental accommodation. The mother had moved into rental accommodation within about one month after her return from Western Australia.
After leaving the work in Western Australia the father worked in New South Wales from October/November 2012 until October 2013.
The mother asserts that the father’s mental health began to deteriorate at about the time the parties moved to Western Australia in early 2012. The father asserts that he had no difficulties with his mental health until about mid November 2013.
By October 2013 the father had returned to Tasmania and was becoming increasing violent and out of control. The mother reported to police increasing violent and threatening behaviour and an assault by the father.
In October 2013 a Police Family Violence Order was made against the father to protect the mother and children.
On 29 October 2013 when the mother went to collect the children from the father he assaulted her. This assault included punching her in the head. The children were present at this time, and the father was arrested by the police and charged with assault. The father was charged with breaching that Family Violence Order. In August 2016 the father entered pleas of guilty to an assault on 11 October 2013, an assault on 29 October 2013, and breaching family violence orders on 29 October 2013 and 19 May 2015.
On 5 November 2013 the mother commenced proceedings in the Federal Circuit Court.
In late November 2013 while in Sydney, New South Wales the father had an episode where he was hearing voices and was psychotic. The father concedes that he had these auditory hallucinations. He had punched a man in a bar in Sydney for which he was arrested and taken by police to Suburb L Police Station. When he appeared in the New South Wales Magistrate’s Court the father became uncontrollable. He spat blood on the ground or onto the police officer. He engaged in violent behaviour and needed four police officers to subdue him. His behaviour included throwing a chair at the Magistrate in open court.
On 25 November 2013 the father was involuntarily admitted to the M Hospital Psychiatric Ward where he remained until about 9 January 2014.
While at M Hospital the father telephoned the mother and made threats to her and was verbally abusive to her.
In early December 2013, whilst in the psychiatric ward, the father disassembled or damaged some furniture and was sent to the N Hospital secure ward where he remained for a period of time. He was later returned to M Hospital Psychiatric Ward.
On 24 December 2013 while an involuntary inpatient at M Psychiatric Ward the father sought and was granted leave to attend at the gym for recreational or health purposes. The father left the hospital to go to the gym, but instead of that destination he went to Sydney Airport. He bought a ticket for a flight to Tasmania. The father was heavily medicated and became confused. He missed the flight to Tasmania. He was apprehended by New South Wales police who returned him to M Hospital.
On 9 January 2014 the father was discharged from the Sydney hospital and returned to Tasmania.
On the day following his return to Tasmania the father engaged in controlling behaviour at a McDonalds Restaurant, to which I refer later in these reasons. The police were called and made a report.[4] A time had been made for the father to see the children. However, he unilaterally took the children for the weekend contrary to the wishes of the mother.
[4] Exhibit ICL7 – page 85 of 136.
On 28 January 2014 interim orders were made in the Federal Circuit Court providing the mother have sole parental responsibility for the children and providing for some contact between the children and the father at the Contact Service.
On 17 February 2014 the father was admitted to a psychiatric hospital and he was the subject of a Tasmanian Treatment Order, having regard to his mental health. He was discharged on 19 March 2014.
In March 2014 a Family Violence Order was made in favour of the mother for a period of 12 months.
Given the father’s health concerns he was not then in paid employment until October 2014.
In October 2014 the father obtained employment in far western New South Wales. He was earning an income of about $4,000 a week and worked in that employment for about six months until March 2015.
On 12 May 2015 the mother alleged the father was delusional. The police took the father into protective custody and he was readmitted to a psychiatric hospital. A further Family Violence Order was made.
The father was discharged from hospital on 18 May 2015.
The following day the father attended a school function in apparent breach of a family violence order. The police were called. The Family Violence Order was varied.
The father was readmitted to a psychiatric hospital on 9 June 2015 and he remained in that clinic until 3 July 2015.
The father was then not in significant paid employment until he commenced with Mr O in February 2016 and worked full time in a satisfactory manner with Mr O until June 2017. In June 2017 the father obtained work in NT. This was on a fly in/fly out basis.
In June 2015 an interim family violence order was issued and is to remain in force until revocation. That order provides protection for the mother and the children.
By December 2015 the single expert had provided two expert reports to the Court to assist the parties, and the proceedings were listed for hearing in the Federal Circuit Court.
In February 2016 the proceedings were transferred to the Family Court after further interim orders had been made that the children have supervised time with the father at the K Town Children’s Contact Service subject to regular psychiatric reviews and the father complying with prescribed medication.
In July 2016 these proceedings were listed for hearing in January 2017 in the Family Court, however, those proceedings were adjourned and the hearing commenced in May 2017.
The father has been a liable parent to pay child support for a number of years. The father has not kept up to date with his child support obligations and had a child support debt of $2,719.64 as at 28 February 2017. He has been paying that debt off. The father said that as of 5 September 2017 the debt was about $1,800. The father had been earning $2,700 per week net since June 2017 and prevaricated in terms of his evidence as to why child support was not paid. I am satisfied that he had the capacity to pay the arrears of child support but chose not to do so. He has not informed the Child Support Agency of his present high level of income.
To add to the problems, there is only limited available contact time on a long term basis at the Contact Service. This is likely to have an adverse impact on these children and their good relationship with their father into the future. There is an offer of supervision by the paternal grandparents, which was sought by the mother and promoted by the mother.
In these reasons, any statement of facts is to be regarded as a finding of fact, unless the contrary is clear from the context.
THE LAW
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them 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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
(3)Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
72.I will endeavour to apply the facts to the law.
THE EVIDENCE
Documents relied upon by the mother
The mother relied upon her initiating application filed 5 November 2013, her affidavit filed 10 January 2016 and the reports of the single expert. She also relied upon the affidavit of Ms J filed 14 February 2017.
The mother tendered the following documents:-
(a)Exhibit M1 – mother’s summary of argument. There was an agreement by the parties that the short chronology in that document was accurate, but it was otherwise evidence of the submissions made by the mother and the orders sought by the mother, at least at the commencement of the proceedings;
(b)Exhibit M2 – interim Family Violence Order dated 18 June 2015;
(c)Exhibit M3 – record of a conversation between the mother and paternal grandmother in January 2017, which I accept was reliable;
(d)Exhibit M4 – correspondence from the Legal Aid Commission of Tasmania to the paternal grandparents in relation to the paternal grandparents attending at the Contact Service;
(e)Exhibit M5 – photocopy of newspaper clipping – Jail term for man who beat his girlfriend to death;
(f)Exhibit M5A – original newspaper clipping;
(g)Exhibit M6 - statement by Ms D Minton provided to mother’s solicitors;
(h)Exhibit M7 - child support documents, and
(i)Exhibit M8 – the orders sought by the mother in final submissions.
Documents relied upon by the father
The father relied upon his affidavit sworn and filed 13 January 2017, his response filed 19 February 2014, and an affidavit of Mr O sworn and filed 17 March 2017.
The father prepared a summary of argument which became Exhibit F1. This simply set out the orders which the father sought at that time. It was superseded by the minute of order he tendered during final submissions.[5]
[5] Exhibit F3.
Attached to the father’s affidavit was a report from the fathers treating psychiatrist,[6] who works at the Tasmanian Health Service.
[6] Report dated 4 January 2017 – page 9 of 37.
The single expert and the father’s treating psychiatrist met and gave evidence in this hearing.
Also attached to the father’s affidavit was a report by Ms P,[7] an accredited mental health clinical social worker. That report was dated 8 June 2016.
[7] Report dated 8 June 2016 – pages 36 and 37 of 37.
The father tendered a notice from the Child Support Agency dated 1 April 2017 being a Notice of Child Support Deductions.[8]
[8] Exhibit F2.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon an affidavit of Mr Q sworn 20 December 2016 and filed 22 December 2016.
The Independent Children’s Lawyer also relied upon the reports of the single expert.[9] She prepared a case outline filed 25 January 2017 which was tendered in evidence not in relation to the truth of the matters it contained, but as to the submissions made on behalf of the Independent Children’s Lawyer.[10]
[9] Exhibit ICL2 and ICL3.
[10] Exhibit ICL1.
The Independent Children's Lawyer also tendered in evidence:-
(a)Exhibit ICL4 – Contact Service Report re attendance;
(b)Exhibit ICL5 – medical records from M Hospital;
(c)Exhibit ICL6 – medical records K Town General Hospital;
(d)Exhibit ICL7 – records from Tasmania Police;
(e)Exhibit ICL8 – letter from the Independent Children's Lawyer to the parties dated 26 July 2017 as to evidence to be given by the paternal grandparents;
(f)Exhibit ICL9 – an undertaking signed by the parental grandparents;
(g)Exhibit ICL10 – the orders sought by the Independent Children's Lawyer in final submissions; and
(h)Exhibit ICL11 – Child Responsive Program Memorandum dated 15 May 2017.
The mother
The mother gave evidence in terms of her affidavit filed 10 January 2017. That affidavit was read into evidence.
The affidavit was a few months old at the commencement of the hearing and the mother gave oral evidence of telephone conversations between that time and the time of her evidence. She gave evidence of a telephone conversation on 28 April 2017, which was the Friday before the commencement of the hearing, where the father said to the children that soon they would not have to talk while they are being listened to and that the children would not need to visit him at the Contact Service. He told the son that he would soon understand ‘the truth”.
I accept this evidence as reliable and the context of this evidence is troubling.
The mother gave evidence of the difficulties she encountered at the children’s swimming lessons, particularly the father’s failure to collect the children at the conclusion of the lesson which was the arranged changeover. Further, she gave evidence about the father wanting the children to attend private schools, and that she attended on an interview at such a school.
The children were not enrolled at private schools when the parties were living together. The mother has a modest income and does not have the funds to meet the school fees, particularly with the additional expenses such as uniforms and special courses.
The mother gave evidence that the father is reluctant to pay child support. At the present time she is receiving some child support through a garnishee of his employer Mr O. She says that there is currently arrears of some $2,100 which would have increased to about $2,500 on 7 May 2017. Sadly, from the father’s evidence it is apparent that he remains in arrears of child support in September 2017, despite earning $2,700 per week net from June 2017.
I accept the mother’s evidence that child support is rarely paid by the father unless he is forced to pay.
At one stage the father was paying, in 2013, child support at the rate of about $12.00 per month. The mother gave evidence that the father organised day care at one stage, but that was done without her knowledge or consent and that the father was not consistent in payment of those day care fees.
The mother seems to now have a good and close relationship with the paternal grandparents. She involves them in activities with the children and they spend time with their paternal grandparents. The children attended their paternal aunt’s wedding and a condition imposed by the mother was that the father was not present.
The relationship between the mother and the paternal grandparents was not always this good. In 2013/2014 the paternal grandparents were having difficulty accepting the father’s mental illness and sided with him. Since that time there has been difficulties in the paternal grandparent’s household with the father. There is a Family Violence Order protecting the paternal grandfather from the father. The mother keeps the paternal grandparents informed as to the children’s progress and it could now only be described as a good relationship.
The mother has seen a psychologist on three occasions between late 2016 and early 2017. The mother has not persisted with that as she finds it emotionally exhausting and it is often hard to parent the children after those sessions.
The mother has seen her general practitioner and proposes to have treatment for her anxiety once these proceedings are at an end.
The mother gave evidence as to her instructions with regard to the correspondence contained in Exhibit M3.
The son commenced grade two in 2017 and is in full time school. The daughter is in prep attending five days per week at the local primary school. Both children go to the same primary school.
The mother and father arranged for the children to be baptised in 2014. The parents had discussions about the children attending at a religious private school but they were never enrolled and, as I indicated earlier, the mother does not have the income or funds to contribute to private school fees or costs associated with such schooling.
The mother gives a history of the father’s significant and continuing drug use including regular, often daily, use of cannabis and some use of ecstasy. From the mother’s perspective the father had been using cannabis from the time she met him until the time of separation. During the course of the marriage the father was a heavy drinker who would drink almost every day and would be drunk often once per week. The mother seemed to accept this given the hard work undertaken by the father.
The mother says that there was some controlling behaviour before the family moved to Western Australia in early 2012. However, she said on their arrival in Western Australia the father was a very different person. She described the father as exhibiting ‘difficult and bizarre’ behaviour and violent behaviour. She described being pulled out of bed onto the floor by the father and the father being in a complete rage and threatening her. She said she was frightened.
The mother sets out the history of those events from paragraphs 18 through to paragraph 54 of her affidavit, when she returned to Tasmania from Western Australia, having ended the parties’ marriage.
The mother initially relied upon the paternal grandparents to provide her with some assistance however, they returned to Tasmania so the maternal grandmother assisted. The mother described herself as being frightened of the father.
I accept her evidence of the violence and threats set out in her affidavit. As I have indicated elsewhere, the mother is an impressive witness. She made admissions against interests and was careful and thoughtful in giving her evidence.
The father’s bizarre behaviour continued after the mother returned to Tasmania. The father seemed to engage the children in his behaviour, including endeavouring to undermine the children’s relationship with the mother.
The father exhibited signs of jealousy and was verbally aggressive to the mother, including the use of demeaning names and asserting that she was a ‘prostitute’. There were significant implicit threats made to the mother over this time and I accept her evidence in that regard.
In about 2003 the father was involved in a car accident with the children and did not report that to the mother, even though the son hit his head on the back of the driver’s seat. The father did not take the children to see a doctor or to hospital. The mother only found out about the accident about one month later.
The mother gave evidence that the father was expecting the son to, in effect, ‘toughen up’ and gave evidence of a number of events, including one set out at paragraph 78 of the mother’s affidavit together with other incidents.
The father assaulted the mother twice in October 2013. I accept the mother’s evidence in respect of those events. The mother sets out a history of significant family violence and threats in her affidavit, which I accept.
In January 2014 the mother had arranged for the children to see the father at McDonalds as he was going away. The mother described an incident at McDonalds in her affidavit at paragraphs 116 to 130. I accept her evidence in relation to those events.
In many ways the mother has been careful and thoughtful in her interaction with the father and has endeavoured to not undermine the children’s relationship with their father, although that has not been reciprocated.
There is evidence that the father has, on a number of occasions at or around the time of separation, sexually abused the mother.
In cross-examination the father suggested that the mother also abused drugs. The mother said she experimented with drugs prior to the children being born, but this was very modest and any such activity ceased prior to the conception of the son. I accept that evidence.
The mother says that the father has cancelled quite a number of visits at the Contact Service, on one occasion so that he could attend a social function.
The mother says she did not attend one visit as she was sure the Contact Service had closed. I accept her evidence in that respect. The mother has endeavoured to make up time, but that has not been taken up by the father.
The mother says the children know their father is unwell and allow his inappropriate remarks and swearing to pass by, at this stage. They also accept that from time to time he gets angry, but this is put down to his health.
The father’s implicit threats to tell the children the truth and explain his views continue to this time. He acts inappropriately with the children and I accept the mother’s evidence as set out in particular paragraph 165 of her affidavit.
The mother is afraid of the father’s rage and temper. She has fears for the children in the father’s care in that if the children protect her they may be harmed. She genuinely fears that the father may hurt the children.
She is afraid that he will not properly medicate himself.
The mother has genuine anxiety in relation to the father’s interaction with the children.
I am satisfied she is frank, thoughtful and careful with her evidence. If she made an error in evidence she was quick to acknowledge an error and was not wholly dismissive of the father. She treated his condition as an illness.
She is a very impressive witness and I have regarded her evidence as being reliable.
The father
The father gave evidence in terms of his affidavit affirmed and filed 13 January 2017. This affidavit was filed after the father had been served with the mother’s affidavit, but it did not address a number of issues raised by the mother in her material.
I have not given that circumstance any weight given that the father was acting for himself.
In addition he gave further oral evidence on 4 September 2017.
The father gave evidence of his employment history, to which I have referred below in these reasons. The father also gave evidence as to his interventions in hospital. I have referred to the first of these, which was in Sydney, earlier in these reasons.
There were a series of other admissions to hospital by the father. When the father returned to Tasmania it was arranged for him to see the children at McDonalds for about an hour with the paternal grandparents as supervisors.
This was a disastrous engagement. The mother’s evidence was that the father was aggressive and difficult. The father’s evidence was that he was the only quiet one there. The father was heavily medicated; he had been released from a psychiatric hospital the previous day and was subsequently admitted. I do not believe his evidence.
Following that incident, which is set out in the mother’s affidavit, interim orders were made on 28 January 2014. It would appear that the father was in hospital at that time.
On 17 January 2014 the father was involuntary admitted to K Town General Hospital. There was an incident at the paternal grandparents’ house. The paternal grandparents asserted that the father was hearing voices and was aggressive. The father denied this. He said he was taken by ambulance to the hospital and that the police were involved.
He denied that he was hearing voices in the hospital, but he was in the hospital for about two to three weeks. In any event, after his release the father was placed on a Tasmanian Treatment Order.
On 26 March 2014 an order was made in favour of the paternal grandfather for a Family Violence Order. The paternal grandmother did not seek an order as she wished to maintain contact with the father.
The mother gave evidence, which I accept, that during a telephone conversation she had with the father, his alter ego, called H, came on the telephone and was aggressive and abusive to her. Subsequently the mother received a text message in the following form:-[11]
I changed my mind, the kids will be here soon. Looking forward to putting your kids in the bath – don’t watch now
[11] Exhibit ICL 7 – FVMS-73361 – 12 May 2015, page 2 of 5.
The father endeavoured to give this an innocuous explanation saying that he was going to take the children out and get them dirty and they would need to be bathed to get the dirt off them. Given the circumstances at this time I do not accept the father’s evidence in that regard. It was a chilling threat.
The mother reported the matter to police and to the hospital. The father was admitted to K Town Hospital on 12 May 2015 and a Police Family Violence Order was issued. He was released from the hospital on 18 May 2015.
On 9 June 2015 there was an incident of violence at the paternal grandparents’ home. The father denied that violence; I do not believe him. He was then re-admitted to K Town General Hospital where he remained until 3 June 2015.
At the father’s parents’ house, the father had thrown a besser brick through the window and had thrown a chair on another occasion which broke a window. When asked about throwing the besser brick the father said he was very angry because he felt that he was ‘one step away from getting his kids back’.
There is evidence in the case notes from K Town General Hospital that the father talked about his alter ego H in terms of the hospital. He asserts that this was merely a ‘stir’, but it appears to have been more than that.
The father had been taking medication orally from early 2014. He assured his psychiatrist and treaters that he was compliant with medication.
He made bizarre statements to his parents and when questioned about this said he was simply ‘stirring’ his parents because they were too inquisitive about his mental health. I reject that evidence.
I am satisfied that the paternal grandparents were very concerned about the father’s well-being, his aggression and violence. I am satisfied that the father was not compliant with his oral medication.
Since that time the father has been required to have a monthly injection, although the legal requirement for that ended in October last year. The father was to go back to oral medication.
I am not satisfied, on his evidence, that he is likely to be compliant with that medication.
I am satisfied that the father’s behaviour has been troubling and chilling since early 2012. In her affidavit[12] the mother refers to a newspaper article[13] which was left in one of the children’s lunch boxes. The mother annexed that article to an earlier affidavit; it was a story about ‘jail term for man who beat girlfriend to death’.
[12] Paragraph 76.
[13] Exhibit M5.
The father admitted putting the article in the child’s lunch box, but said it was an advertisement for a circus on that same piece of paper and that he did not intend an implicit threat by the story. I reject the father’s evidence in that respect.
In terms of the father’s health and on listening to his evidence, I find that he understates his mental health issues, denies that he has significant mental health issues and is only compliant at the present time as a consequence, earlier at least, of the mental health order and presently in the hope that it would lead to the children being returned to his unsupervised care from time to time.
The father has had difficulties with alcohol for many years. I accept the evidence of the mother as to his alcohol abuse when they were together. There is evidence that the father, at least to a limited degree, accepts that the paternal grandmother complained about him drinking alone in his room when he was staying at the paternal grandparents’ home and being a binge drinker.
The father has been convicted of three drink driving charges over the last seven or so years.[14] The father down plays his alcohol abuse. The father has been convicted of driving without a driver’s licence or whilst disqualified or while suspended on numerous occasions.[15]
[14] Exhibit ICL7 – pages 130 to 133. Show convictions for driving while exceeding the prescribed alcohol limit on 7 May 2010, 5 January 2015 and 17 December 2015.
[15] Ibid pages 128 to 133. This shows convictions for such offences for driving on 19 May 2002, 23 November 2011, 7 May 2010, 23 June 2010, 2 June 2011, 2 July 2015and 17 December 2015.
Alcohol was a feature in the hotel incident involving the father which occurred in Sydney in late November 2013. Alcohol seems to be a factor in relation to at least one of his admissions to hospital.
In recent times the father cancelled a contact visit with the children as he was ‘unwell’. However in cross-examination it was clear that he was well enough to work full time on the Friday and had friends over for drinks on the Friday night. I do not accept the reliability of the father’s evidence in relation to his alcohol use.
The mother gave evidence about the father’s abuse of drugs. He primarily used cannabis, but on a few occasions he used ecstasy over a number of years. She gave evidence of the father using cannabis in a shed outside his house and smoking that almost every day except for a short period when he did not smoke it.
The father asserted that he had not used cannabis for many years and said that he undertook drug tests. There is no evidence of the father’s recent use of cannabis, however, I accept the mother’s evidence of his extensive cannabis use at least up to the time of separation.
The father denied swearing in front of the children however, conceded in cross-examination that in April and May 2014 he used swear words and that they were likely to be used in the presence of the children.
In his evidence it was clear the father did not respect the mother and I accept her evidence about his use of the terms ‘whore’ and ‘slut’.
Such is the father’s use of alcohol that it is informative to see that when he absconded from M Hospital on 24 December 2013 he was waiting for his flight and missed it, at least on his view, partly because he was affected by alcohol whilst at Sydney airport.
The father does not accept that he has any anger or violence problems. He has no insight into the impact he had on the mother’s health when she was in Western Australia for nine months in 2012. He concedes that she is an ‘okay mother’, but ‘could do better’.
In April 2015 there was a minor incident at the Contact Service and the father said to the children that the mother needed a ‘kick up the bum’.
The father has no insight into the impact of this on the children.
In cross-examination the father was asked about the changeover to four days a fortnight as he sought and the children’s changing of schools as he wanted. The father had little insight in terms of those circumstances.
I accept the evidence of the father, supported by the evidence of his treating psychiatrist, that the father has been compliant with his medication in recent times, albeit at times at a sub optimal level.
The father was cross-examined about his child support and seemed to have no concerns about not meeting his child support obligations. In October 2016 the father decided that because he was not seeing the children he would not pay child support. He said he knew it would affect the children, but it did not stop him from refusing to comply with the assessments of the Child Support Agency. That is troubling evidence.
The father was asked about the children attending private schools. He has little insight as to the impact it would have on the mother in terms of finances. He has made no serious investigations into the children attending these schools and has little insight into the impact that a change of schools may have on the children, in circumstance where the son has been attending his current school for quite a number of years. The father’s application is a ‘thought bubble’ which was destined to fail.
It is not in issue that the father sent a series of messages to the mother and the paternal grandfather which caused them to worry about his mental health.[16] It was conceded by the father as to the content of the exchanges between the father and his family set out in that exhibit. I do not set them out here in detail, but I have had regard to them.
[16] Exhibit M6.
The father gave oral evidence on 4 September 2017.
He said had he left his previous employment and was working in NT on a fly in/fly out basis. He has four weeks on then a week off. The changeover day was Wednesday. The contact would operate for six to 12 months. The father’s employer pays for his airfares, accommodation and food in NT when he is working. He has a net weekly income of $2,700. He remains in arrears of child support.
The father continues to have his depot injection monthly and is keeping in touch with his mental health treating professionals.
What then do I make of the father’s evidence?
It is a pity that the father was not represented in these proceedings. He clearly and obviously suffers from mental health issues. When giving evidence he is highly focused and has the appearance of being very wound up. His eyes are unblinking and his expression seems fixed.
At times the father’s answers were inconsistent. He complained bitterly about the paternal grandparents being too intrusive into his mental health and asking him too many questions and demanding that he be compliant, even though given the history that is a fairly sound approach by the parents. However, when asked the question about the paternal grandparents visiting medical centres with him, he said that they were not interested.
The father is determined to spend unsupervised time with these children and will say whatever needs to be said to give effect to that. He has little insight into his anger and has little insight into the inconsistencies in his evidence.
The father said that he has a psychosis and said he needs treatment for life. I am not sure he believes that. He says he has not heard voices since November/December 2013; I do not believe that evidence. He was asked why he ‘stirred’ his parents about making false suggestions about his mental health and he could provide no rational explanation, other than it was a joke. I do not believe him.
The father was guarded and not forthcoming in some of his evidence. The father was not child focused, his focus is more about his needs than the children. The father blames the mother for the circumstances and not his mental illness. At times he blames the paternal grandparents.
The father has earned about $30,000 net over the last few months, but could not prioritise the needs of the children in terms of child support.
His evidence is generally self-serving and unreliable.
Mr O
Mr O’s affidavit sworn and filed 17 March 2017 was read into evidence. Mr O owns a business in northern Tasmania.
His evidence was in the form of a reference, having known the father for about 17 years. He said the father is a good tradesman and has a strong work ethic. He further provided evidence that the father becomes excited when he sees the children.
This evidence is of little probative value in relation to the issues in this hearing.
Mr O gave evidence that he had known the father for many years and employed him in about February 2016. He said that at the commencement of the father’s employment he was concerned about the father, as the father had informed him of his mental health issues, however the father had shown himself to be a good and reliable worker.
Mr O said that he observed the father having a few beers on Thursdays and Fridays. He had not seen the father drinking alcohol on Friday nights.
He said that he takes the child support out of the father’s wages given that there is a garnishee of the Child Support Agency. Further, he said the father becomes very excited when he is about to see the children.
Mr O said the father had spoken to him about a friend called ‘H’ who worked with the SAS. I am satisfied that this is likely to be the alter ego of the father whom talks to the paternal grandparents and others.
The father has from time to time taken on work or has been required to work on a Saturday. Mr O gave evidence that it was open for the father to work and that he would try and work on odd Saturdays given his need for funds in regard to the garnishee.
Mr O has no concerns about the father’s temper and he is entirely satisfied with him as an employee, including to the extent of giving evidence for him in these proceedings.
Mr O is a long term friend of the father and was careful and at times coy in terms of his evidence. He seemed protective of the father.
However, I accept that his evidence was genuinely reliable.
Mr Q
Mr Q provided evidence in terms of his affidavit sworn or affirmed 20 December 2016 and filed 22 December 2016. It was read into evidence without controversy. Mr Q confirmed that the father had seen him on 11 occasions between 16 March 2016 and 13 December 2016.
Mr Q is employed at the Adult Community Mental Health Service and said that the father is a current client of that service. The service is able to provide assistance to the father for the purpose of review and administration of his medication.
He confirmed that the father was compliant with the Adult Community Mental Health Service and attended on a monthly basis. The father had been the subject of a Treatment Order under the Mental Health Act 2013 (Tas) and was discharged from that Treatment Order on 22 October 2016.
The paternal grandparents
The paternal grandparents had been out of the State of Tasmania for about four months on a long holiday. They attended court on 4 September 2017 to give evidence as to their present willingness to supervise time between the father and the children.
They gave evidence jointly as that was the request of all of the parties and the Independent Children’s Lawyer. All of the parties asserted that the evidence of the paternal grandparents was given in good faith and was reliable.
These grandparents said they were willing to supervise and would put the interests of the children ahead of the father. They are not prepared to supervise overnight time.
They are physically able to undertake that task as supervisors.
They know how ill the father is and are able to recognise signs that he is unwell or under the influence of drugs or alcohol. They have been the subject of the father’s uncontained behaviour and the paternal grandfather had at one time applied for and obtained the protection of a Family Violence Order.
The paternal grandparents were asked to give an undertaking in terms of the proposed role. They were shown the terms of the undertaking and I explained the seriousness of it. They were given time outside the Court to reflect on whether they would do so, and they gave and signed that undertaken; which undertaking was accepted by the Court.
Consequently, on 4 September 2017 the paternal grandparents gave a formal undertaking to Court, in a signed document and in evidence,[17] and such undertaking was accepted by the Court. They undertook as follows:-
[17] Exhibit ICL9.
1. We [the paternal grandparents of the children] will supervise the time ordered by the court between [the father] and the [children] and not allow the children to be alone with the father.
2.To remove the children from the father and terminate the spend time with in the event of
a.The father denigrates the mother to the children or in their presence; or
b.The father show symptoms of delusions such as hearing voices, mentions “[H]” or involvement of the military, being withdrawn, hostile and/or aggressive, showing other signs of psychosis, relapse and/or jealousy toward the mother/children/grandparents; or
c.The father appears to them to be affected by alcohol and/or cannabis and/or other illicit substance; or
d.In the event the father fails or refuses to follow their reasonable directions regarding the children and/or compliance with the conditions as to spending time with the children as set out in the court order (copy to be provided to them).
3.In the event the father fails and/or refuses to follow their reasonable directions, shows signs consistent with relapse or other deterioration in mental health they are to contact the mother and/or Tasmania Police and/or CAT (Mental Health Service in [K Town]).
4.Not to allow the father to drive a motor vehicle with the children in it.
5.In the event the father seeks to exercise time away from the residence of the grandparents then they shall make reasonable efforts to contact the mother and seek her consent and in the event the mother does not provide that consent then time shall take place at their residence.
6. In the event the father withdraws any authority to allow them to access and/or consult with his mental health providers they will immediately notify the mother and if necessary they can cancel the visits.
7.That at any time they cannot supervise the time and/or seek to be relieved of the undertaking they should advise the mother.
8.That in the event that the paternal grandparents become concerned for their own health and wellbeing of a consequence of the father’s behaviour toward them they are able to cancel visits and shall notify the mother.
They were impressive witnesses and I gave considerable weight to their evidence. They are offering to take on a hugely responsible task and they are doing so with no delusions as to the heavy responsibility that supervisions entails.
The single expert and the father’s treating psychiatrist
The single expert and the father’s treating psychiatrist met and gave concurrent evidence during this hearing.
Their reports were read in to evidence without objection and there was no challenge to their professional qualifications.
The single expert said of the father he exhibited ‘mitigated indignation’ and he was disparaging of the mother but not as to her parenting. His beliefs as to his rejection of the diagnoses had remained the same.
In his evidence the father’s treating psychiatrist said:-[18]
Look, there have been things of – of paranoia, really. Collusion, his parents with his ... partner, that they, in fact, are actually colluding to not let him have access to his children. You know, he has actually made several – and we have copies of this in our files – several text messages which are quite concerning, mentioning of [H] and so on and such like. And – and, really, they are the paranoia, really, associated with that. I haven’t so much seen the bizarre ... which [the single expert] has defined. They’re implausible, unlikely to be – you know, whereas, you know, jealousy and paranoia, and persecutory beliefs, in fact, can be based on reality. And, you know, and part of the personality structure as well actually that [the father] has displayed in the past. But ‑
[18]Transcript of Proceedings dated 4 May 2017 – page 30 at lines 35 to 44.
As to medication the Independent Children's Lawyer asked:-
you know, the risk of relapse if there’s to be unsupervised time, and obviously if he has – from my understanding – if he has the depot injection it’s minimised, but there’s still those external factors there – what about if he was taking oral medication, does that increase that risk of relapse if he’s having the unsupervised time?
The father’s treating psychiatrist replied:-
I believe it would actually, and I’ve expressed this to [the father]. I’ve said to [the father], look, there is good evidence that the depot injections have much more effectiveness than oral medication. And [the father] has been of the belief that he doesn’t really need mediation in the past, and what – and [the father] has been at pains to stress to me on numerous occasions that he has side effects from the medication – it slows him down, he believes it’s not, you know, kind of the – the ideal medication for him, and whereas he doesn’t have those sorts of effects from the oral formulation of the same medication.
The single expert said that the risk of the father not complying with his medication is ‘very high’ if the father moves to oral medication, as is the father’s desire.
The single expert was asked by the Independent children’s lawyer about the father’s ability to recognise symptoms of a relapse and said:-[19].
Well, the problem is that he may not. If – if – if he still has persisting delusional ideas, for instance, for – they may sneak up on him and they may carry absolute conviction. That’s part of the nature of paranoid schizophrenia, that – that the beliefs are – have the same order of reality to him as the rest of the consensual world does to the rest of us. If he has very definite phenomena, such as hearing voices – hallucinatory voices – that may not be made evident to others. An observer outside him may notice that he’s more withdrawn or that he’s more hostile or that he has altered relationships with other people, or there may be actions which don’t seem rationally explained.
[19] Ibid – page 22 at lines 11 to 22.
In his report of December 2014 the single expert opined:-[20]
It is my opinion that the Father suffers from a persisting Delusional Disorder of Jealous Type. There is however a history of other delusions and of auditory hallucinations, so the differential diagnosis must include Paranoid Schizophrenia and a drug-related psychosis. The issue in the differential diagnosis results from the undoubted presence of typical features of schizophrenia in the past with recovery of insight concerning these, while morbidly jealous delusions persist. The recovery of insight may be the result of medication, but at the time of examination had persisted despite abandonment of medication. Relapse within a few months remains a possibility
[20] Pages 19 and 20 of 23 - point 1.3.
He was correct as to the likelihood of relapse as that occurred the following year. In his December 2015 report the single expert confirmed his previous diagnosis and noted that the father was having regular injections of antipsychotic medication.
It is troubling that despite the opinion of the father’s treating psychiatrist the Mental Health Tribunal on 6 October 2016 revoked an involuntary treatment order requiring the father to be medicated. The father’s treating psychiatrist reported that the Tribunal was of the opinion that in view of the supervision effected by the Family Court and the father’s then clinical stability the treatment order was not justified. The Tribunal misunderstands the role of the Family Court.[21]
[21] The father’s treating psychiatrists report 4 January 2017 – page 1.
I have read the three reports of these psychiatrists and I accept that heir evidence is reliable and cogent.
Family Consultant
Ms R is a Family Consultant (‘the Family Consultant’) employed by the Family Courts. She prepared a short report on the children and the parents dated 15 May 2017.[22] She interviewed the mother and father separately and met with the children.
[22] Exhibit ICL11.
The Family Consultant dealt with a number of issues and reported:- [23]
[The son] presented as a young boy who was somewhat anxious and stressed. He was keen and excited to see his father, but he appeared nervous and anxious when observed with him. This anxiety appeared to stem more from being observed, than from being in close proximity to his father as [the son] spontaneously ran up to his father and remained as physically close to him as he could manage, throughout the observed session. [The son] however nervously flicked his eyes to and from the writer and appeared studied in his interactions. [The son] apologised profusely and looked embarrassed and upset, when he threw a dice with some vigour across the room. His mother expressed concern that [the son] not be questioned in a manner where he may be left feeling that he had not said the right thing, indicating that [the son] may feel burdened by the responsibility to present to the writer in a particular way.
[The son] appeared keen to have his father’s attention and seemed frustrated when [the daughter] had physically commandeered his father’s attention, by lying prostrate across the father’s lap, entangling herself around his neck. It was around this time that [the son] threw the dice they were playing with, across the room with some energy.
[The daughter] impressed as the more outgoing and vocal of the children. Whilst both children ran up to their father and greeted him warmly, [the daughter] spoke to him with a loud, demanding voice and immediately engaged their father’s attention. She proceeded to play enthusiastically at the kitchen, declaring she was making her father a large, sumptuous ‘meal’. [The daughter] appeared to find it more difficult to settle in the observation room and found it difficult to concentrate on playing the game Snakes and Ladders that they had selected to play. [The daughter] was disruptive and immature in her conduct and physically attempted to capture her father’s attention. She eventually declared that she wanted to go to her mother stating “want to go to Mummy.”
Both the children were observed to behave in a somewhat manic and unsettled manner with their father, despite [the father] being observed to be relaxed and happy. They loudly squealed with laughter physically grabbing and tugging at [the father]. They energetically played tug of war with a toy plastic snake, prompting [the father] to suggest that they could break it. This uneasy behaviour could be explained in a number of ways and possibly in more than one way. It may have been due to the direct observation of them by the writer or the children’s frustration at having to see their father in a confined setting or it may be the usual way they interact with their father. It may indicate a degree of insecurity in their connection with their father which could be fleeting and situational or may be more entrenched and settled.
It was evident however that the children enjoyed seeing their father, wanted his time and attention and responded positively to his displays of affection and encouraging comments. Before their father entered the observation room, [the son] and [the daughter] spoke of their father with warmth and excitement and displayed pleasure and anticipation in having been brought from school to spend time with him. [The son] expressed the view that his favourite part of spending time with his father is playing with him, and said “I would like to do a lot more.” He said that he would like to play monopoly, table tennis, soccer and dodge ball with his father. [The daughter] said that she liked their father “bringing us snacks.”
[The son] appeared sad and reluctant to say goodbye to his father and clung with his entire body weight from his father’s neck, when his father bent to cuddle him goodbye. [The daughter], who had been behaving in a loud and attention seeking manner, said goodbye to her father with gusto and abruptness. These behaviours indicate that [the son] and [the daughter] are most likely struggling emotionally with the current arrangements for spending time with their father.
The children settled significantly when their mother entered the room. [The son] was keen to show his mother the birthday present his father had given him and [the mother] responded in a positive and affirming manner. She also was keen to play Snakes and Ladders with the children and they were happy to share and play this game again with her. The daughter] displayed greater focus and together they sat on the floor in a calm manner. [The mother] was observed to place greater demand on the children observing the rules and playing with positive attitudes, than the father had displayed. [The mother] appeared to see the game as a learning opportunity.
[23] Ibid at pages 6 and 7 of 10.
Any order for unsupervised time and any order for joint parental responsibility would, in my view, lead to further litigation. Accordingly, the orders making supervised time conditional are likely to reduce the likelihood of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
The mother in this case has decided that it is better and safer for the children to have some, albeit limited, time and communication with the father. The mother was represented by competent counsel and I am satisfied that the decision was a considered one.
The children love their father and he loves them. The mother has enabled the children to spend time with the father, despite his at time abhorrent and violent behaviour.
The stressors on the mother were clear in her evidence. As an example she was asked about her concerns and replied:-[42]
Currently as standing my concerns are the way that he will try and portray me to the children. He has never been positive in the way that he speaks about me towards the children. He’s always undermining my parenting. For example, I don’t allow the children to drink Coke, but at every opportunity at the contact centre [the father] will ensure that they have Coke. So now the children kind of look at me cheekily when [the father] asks “what would you like to drink”. [The daughter] is usually really good and asks for a juice or a whatever, but [the son] will look at me in a kind of a cheeky manner of to say Coke, knowing that [the father] is going to get him Coke, knowing my opinion on it. So that’s just something small. If [the father] is to relapse, I’m concerned at the emotional damage he could do to both [the son] and [the daughter]. In the past he talks about being a special SAS soldier, that he has an elite group of army friends behind him. He’s constantly referring to [the son] as a robot already. Fortunately, [the son] thinks it’s a game and is not aware that [the father] believes that he’s an actual little robot. [The father] has time and time again talked about having special abilities, cameras in his eyes, things that he can’t wait to show the children. I’m afraid that if he’s in relapse and is in that state of mind, that the kids are going to get – become really confused or they’re going to question his bizarre behaviour. And I’m concerned at how they’re going to feel and how they will cope with the situation that they find themselves in, and not be able to contact me. [The father] has already made it very evident that if he gets the children, I’m to have no contact with them. And I don’t know who’s going to be looking out for them. They’re only eight and six. Sometimes I feel like I’ve done the best I can to protect them from this situation. And I wonder if you do get unsupervised visitation with them, if I’ve protected them too much, that they’re going to find themselves in a situation that I’ve protected them from and not know how to handle. And you don’t acknowledge that you have a mental illness. You have told the children on the phone over and over and over again that you’re not unwell, it’s just a lie that I’ve made up. You’ve told [the son] and [the daughter] both that you don’t take medication, that you only get injected with water. You constantly say that soon you won’t have to take medication and I’m fearful.
[42] Transcript of Proceedings dated 1 May 2017 page 22.
The mother has adopted the supervised approach to meet the needs of the children and in the hope and expectation that supervision and medication will provide sufficient protection for the children.
The dilemma mother the mother faces on a day to day basis is poignantly set out in her trial affidavit where she says:-[43]
196. I have become increasingly concerned that the court may order unsupervised time between [the father] and the children and it is causing me much anxiety. I have attended my GP in recent months and he has prescribed me some medication for anxiety that I can take if I feel I need it.
197. I feel I have been able to manage the situation with [the father] well so far and supported the children through what must be a difficult situation for them due to the fact that are somewhat protected at the Contact Service. I am not sure I will be able to cope if this safety net is taken away.
198. I do think the children should continue to see their father due to the fact that .they currently do have a positive relationship with him. I feel strongly that it is positive only because I have some reassurance that they are safe and I have been able to manage and cope with the current arrangements.
[43] Mother’s trial affidavit – paragraphs 196 to 198.
I repeat that the mother is impressive in terms of her focus on the children’s needs and her understanding of the father’s mental health. It is in this context that I have considered what orders to put in place to enable her to manage this difficult and fraught circumstance in which she, the children and the father find themselves.
Given the father’s illness, anger, violence and lack of insight, the mother has been the effective parent in this family’s dynamic and her views and approach to management of the circumstances must be given great weight.
UNNACEPTABLE RISK
The unacceptable risk to these children relates to both physical and emotional risk, with which I have dealt earlier, and to the risk of the damage to the mother’s ability to parent if unsupervised time was permitted.
Given the evidence of Ms J and the awful history of violence to which the mother has been subjected over many years, there is a risk that the mother would not be able to manage the care of the children if unsupervised time were to take place. This is in circumstance’s where she has been the children’s primary carer.
Given all of the evidence, I see no circumstances in the short, medium or long term where the father could have other than supervised time with these children.
It is indeed fortunate that the mother and the father both contacted the paternal grandparents who said they would assist the father by supervising his time with the children. They have clearly and deeply considered that task and it will be onerous upon them.
If not for the offer of the grandparents, the only reasonably choice available to me in the circumstances in this case would have been that offered by the Contact Service which would have been five or so visits per year.
PARENTAL RESPONSIBILITY
Both the Independent Children’s Lawyer and the mother seek orders for sole parental responsibility in favour of the mother.
I am satisfied that the mother has been exposed to violence from the father as set out elsewhere in these reasons. The father has been convicted of two assaults on the mother and has been convicted of breaching Family Violence Orders. As such there is no issue that the father has engaged in family violence as described in s 4AB of the Act. Consequently, the presumption set out in s 61DA(1) of the Act does not apply.
The material from Tasmania Police confirms the father was charged with and convicted of two assaults on the mother on 29 October 2013.
A number of Police Family Violence and court Family Violence Orders have been made. There was an order made against the father to protect the paternal grandfather in 2015 and a further Family Violence Order was made for the protection of the mother against the father at about the same time in 2015.
The mother alleges numerous incidents of violent, abusive and controlling behaviour by the father against her, to which I have earlier referred.
The Court finds that the father has engaged in family violence.
There is no parental alliance, despite the mother’s general goodwill towards the father’s relationship to the children. There is no likelihood of co-operation. I am satisfied that if I put in place an order for joint shared parental responsibility it would create a decision-making sclerosis and would expose the mother to further violence from the father.
The evidence is that the father’s mental health is such that there could be no functional parental alliance for these children. There is no realistic possibility the parents will be able to co-parent with each other.
The father suffered a relapse in his mental health condition in May and June 2015. His health is such that I determine that the father would not meaningfully work with the mother in making child focused decisions about these children.
I accept that the mother has acted in the best interests of the children throughout their lives. A recent example is her proactive approach to have the paternal grandparents supervise time to enable the children to have a more meaningful relationship with the father.
This Court did consider whether the children should spend equal time with the mother and the father and concluded that it was not in the best interests of the children.
This Court did consider whether the children should spend substantial and significant time with the father and concluded that it was not in the best interests of the children.
There was an aspect of parental responsibility which was not the subject of any significant evidence, that is the father’s desire that the children be involved in the private school system. I deal with this later in these reasons.
The mother has effectively exercised parental responsibility for the children since their birth. I reiterate all of the factors set out above and all of the findings set out above.
Accordingly, there ought to be an order that the mother has sole parental responsibility in relation to these children. I will make orders to enable the father to have access to the medical records and school reports of the children so that he understands what is happening in the lives of the children. I will also make orders requiring the mother to keep the father apprised of significant issues regarding the children’s health and education. These orders are made in this way based on the final submissions of the counsel for the mother.
LIVE WITH
There was no issue that the children should continue to live with the mother. That was the position of the mother, the father and the Independent Children's Lawyer. I will make that order.
SPEND TIME
Elsewhere in these reasons I have discussed the relevant factors, in particular those under s 60CC(2) of the Act.
In the unsupervised care of the father the children are at risk from the father in terms of his aggressive and violent behaviour; his mental illness in relation to paranoid schizophrenia and his Morbid Conjugal Jealousy Disorder are risks to these children. The father needs to be medicated, but continues to seek a reduction in his medication notwithstanding some concerns expressed by the mother and the paternal grandmother as to his behaviour. The father lacks insight into his condition.[44]
[44] Joint evidence of the doctors page 23
The father has a history of being non-compliant with his medication as recently as 2015. He is not sympathetic and barely acknowledges the mother’s anxiety and care of the children. His explanation about the newspaper article in the child’s lunchbox if fanciful and I reiterate what I have said elsewhere in these reasons.
The father asked the Court to accept that he is compliant with medication. He asked this in circumstances where he does not accept the diagnosis, he has a relatively recent history of non-compliance and I do not accept the reliability of that evidence. It is significant that the single expert says the combination of the Paranoid Schizophrenia and the Morbid Conjugal Jealousy is an explosive combination.[45]
[45] Transcript of Proceedings dated 4 May 2017 page 19
I will order that father obtain professional help to deal with the Morbid Conjugal Jealousy he harbours to the mother and confirmation from the health care professional of the father engaging in therapy to deal with the Morbid Conjugal Jealousy be provided to the mother.
Given the evidence of the Morbid Conjugal Jealousy the father harbours with regard to the mother and in particular with regard to the evidence of the single expert about the seriousness of the Morbid Conjugal Jealousy, and the concerns expressed by the Family Consultant as to the pressure on the paternal grandparents by the father, it seems to me this order is appropriate.
Given the unacceptable risks and the circumstances to which I have alluded throughout these reasons, there cannot be an arrangement for other than supervised time between the children and the father.
Given the limitations and options available to me in May 2017, I was going to reluctantly make an order that the father have supervised time with the children at such level provided by the Contact Service. Since that time the paternal grandparents have returned from a long holiday and they gave evidence of their willingness to be supervisors. They gave undertakings and were supported in this end by the mother.
There was an issue between the Independent Children’s Lawyer and the mother as to whether the time should be one day once a month or two days once a month. The Independent Children’s Lawyer was concerned about how this would impact on the paternal grandparents. The mother pursued the two days once a month on the basis that the children have a good relationship with the father and that this was likely to reduce conflict rather than add to it.
Given my strong positive assessment of the mother, I generally accept the submissions made on her behalf.
The father does not accept that there needs to be supervision and will endeavour to press the paternal grandparents in relation to the extent of supervision of which they have undertaken and the assistance of someone such as Ms P is likely to reduce the risk in this area.
SCHOOLS
The children are presently enrolled in State schools and are performing well.
The father has not made any serious enquiries about private schools and provided no evidence. The mother, at the father’s request, attended an enrolment session with a private school and the son was accepted.
However, the mother his limited financial means and even if the father were ordered to pay the children’s school fees, there is, given his approach to child support, there is a likelihood that the fees would not be regularly met.
Even if the fees were met, the children are settling well into their current school. They have been associated with the school for a number of years.
There is no reason to change this arrangement. Consequently, I will not make that order sought by the father.
TELEPHONE CALLS
In her case outline the mother did not seek an order that the children maintain telephone contact with the father.
The mother described the difficulties with telephone calls, including that the father undermined her authority and the father exhibited some symptoms of his mental illness. At times the mother has needed to either deflect the children or terminate the calls. She has been the subject of abuse and poor language in those telephone calls.
Indicative of the difficulties she has had with the telephone calls were those set out in her affidavit at paragraphs 163 to 172. I accept the veracity of that evidence.
The mother gave evidence of the father’s telephone call with her where she said he became delusional and referred to himself as “H”. Later she received a text message which she took to be a threat to the well-being of the children. That was a reasonable assessment by her. On this occasion the mother contacted the father’s family and the father was admitted to hospital. This was a troubling threat by the father in circumstances where he may or may not have been in control of his thoughts or feelings. Whether or not he was in control makes little difference in circumstances where his behaviour puts the children at risk.
The mother has continued to provide information to the father and communicate with him. This has been primarily by text messages, including texting photographs of the children. The mother is open to the father continuing to have telephone calls as she, frankly, concedes that the children often enjoy those calls.
Given my concerns about the father, to which I have referred to earlier, I intend to make orders for the mother to facilitate calls in the form that she seeks.
NON DENIGRATION
The mother seeks mutual non denigration orders. Given the evidence of the father’s denigration of the mother’s and the mother’s request that such order be made on a mutual basis, I will adopt that course.
PERSONAL PROTECTION ORDER.
The mother sought a personal protection order for herself and for the children.
Given all of the issues, facts and circumstances to which I have earlier referred in these reasons, including the history of violence from before 2012 until at least 2015 and in terms of verbal abuse, perhaps later, I am satisfied that such an order ought to be put in place. The mother and children are in need of such an order given the mother’s willingness for the relationship between the children and the father continue, but only under the shadow of strict conditions to ensure that the children are both physically and emotionally safe.
ORDER PURSUANT TO S 64D(2) OF THE ACT
Counsel for the mother sought an order pursuant to s 64D of the Act. This provision generally enables parents to enter into parenting plans different to previous parenting orders. The mother seeks an order preventing a change to supervision and/or overnight time in the special circumstances of this case. The section provides:-
Parenting orders subject to later parenting plans
(1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:
(a) entered into subsequently by the child's parents; and
(b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.
(2) The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).
(3) Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:
(a) circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(b) the existence of substantial evidence that one of the child's parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.
Counsel for the mother submitted that there ought to be an order under s 64D(2) making it a requirement on the father and mother to come back to a court exercising jurisdiction under the Act in the event that the time is to go from supervised time to unsupervised time or to move to overnight time.
The basis for this was that the father is determined to move to unsupervised time and/or overnight time and does not acknowledge the seriousness of the mental health issues that confront him.
The father has engaged in family violence and there is a need to protect the children from such violence. The father has used coercion and duress to gain agreement about time. The episode at McDonalds in January 2014 and his retention of the children the preceding year are examples of this type of behaviour.
The concern on the part of the mother is that if it is left solely to her then the father will continue to press her for such time and persist in relation to such time.
I am satisfied that such an order should be made in exceptional circumstances of this case, including the circumstances that give rise to a need to protect these children from physical and psychological harm and from being subjected to, or exposed to, abuse and family violence. Further, there is substantial evidence that the father is likely to seek to use coercion or duress to gain the agreement of the mother to a parenting plan.
I have made these findings having regard to the father’s diagnosis of Morbid Conjugal Jealousy Disorder and his other mental health issues. I am satisfied that this amounts to exceptional circumstances for the purposes of including an order such as that sought by the mother.
Such an order provides a better level of protection to the children and the mother from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence from the father.
ATTENDANCE BY THE FATHER AT PARTICULAR EVENTS
The father sought orders that he be able to attend school sporting events to encourage and support the children and attend parent/teacher interviews at the school.
Given the issues of violence and the issues of the father’s mental health, to which I have referred earlier, I have determined that it is not in the best interests of the children that the father attends such events.
ACCESS TO THE FATHER’S MEDICAL PRACTITIONERS AND RECORDS
The mother and the Independent Children's Lawyer seek orders to have access to the father’s medical practitioners and records, including to hopefully having such professionals keep the mother and paternal grandparents informed of any problems as to the father’s metal health.
The mother supports and promotes supervised time between the father and the children but sensibly seeks effective levels of protection for the children. This has been done and will be done by the use of supervisors, including the paternal grandparents.
In addition the mother and the paternal grandparents seek other protective orders.
The mother seeks access for her and the paternal grandparents to the medical advisors and medical records of the father. In late 2016 the father was released from a non-voluntary treatment order by a Mental Health Tribunal. The Tribunal was of the opinion that the Family Court had imposed some conditions on the father’s treatment and attendance on healthcare professionals. As I said earlier, this was likely a misconception of the role of this Court. However, given the circumstances in this case, including the violence, the father’s mental health issues, his relapse in 2015 and some signs of delusion this year,[46] protective orders for the mother and the children are necessary. With such orders, it is hoped, that the children are able to safely spend supervised time with the father.
[46] The evidence of the father’s 2017 employer about the mention of the person called ‘H’.
The evidence is that the father is presently in substantial remission but he may relapse in terms of his illnesses. He may not be aware that he is relapsing or if he is aware, given his determination to see the children, he is unlikely to have the insight to inform the mother or his parents of his deteriorating mental health. This presents as a risk to the children and the mother.
It is likely that such relapse will be apparent to the father’s health care professionals, either by positive observations or by the father’s failure to be medicated or properly medicated or his failure to attend at medical appointments. As such the mother seeks orders to enable her and the paternal grandparents to enquire and be informed of any such changes.
The evidence of the single expert and the father’s treating psychiatrist is that the monthly depot injection of antipsychotic drugs has been particularly successful in the father’s present substantial remission. The evidence is that the father does not like the depot injections and he has been seeking to have it reduced or replaced with oral medication. In any event, the present level of medication maybe sub-optimal. The likelihood of relapse is greater if the medication is taken orally. I have been asked by the mother and Independent Children's Lawyer to require the father to continue this treatment as a precondition to him spending time with the children.
I am a little troubled by such an order as it imposes therapeutic treatment on the father which could continue for about twelve years. This cannot take into account changes in science and treatment of the relevant illness or changes in the circumstances of this particular patient. As such I make it clear that, if a treating psychiatrist proposes to change the father’s medication treatment, by reason of the orders it is both open and appropriate for the psychiatrist and mother to discuss such change. It is open for the mother and father to agree, in such circumstances, on the supervised time being subject to the father complying with an alternate medication plan.
The mother and the Independent Children's Lawyer seek an order that the father seek treatment and care from a psychologist in respect of his Morbid Conjugal Jealousy as a precondition to him spending time with the children. I have been asked by the mother and Independent Children's Lawyer to require the father to continue such treatment as a precondition to him spending time with the children.
These are onerous impositions on the father, but given the need to protect the children, these are the only bases upon which he can safely spend time with them, plus of course with supervision.
I will direct the Independent Children's Lawyer to send a copy of these reasons and the orders that they support to the father’s treating medical experts. I will also ask the Independent Children's Lawyer to particularly highlight the following paragraphs which are in the form of a letter to such experts. I will give leave to the mother to do likewise to other medical or healthcare practitioners or therapists that the father may engage in the future. These are preconditions to the father spending time with the children.
A letter to the father’s health care professionals
This part of the judgment is directed to all the psychiatrists, psychologists, mental health managers, General Medical Practitioners and other health care professionals and therapists who provide medical care, guidance and treatment for the father in terms of his mental illnesses.
Orders have been made by this Court which impact upon the usual patient/therapist relationship and you should have a copy of such orders.
These orders are designed to impose an obligation on each and every one of you to keep informed the mother (Ms Jolly) and the paternal grandparents (Mr A Minton and Ms D Minton) if the father (Mr Minton):-
a)fails to attend any scheduled medical appointment;
b)in terms of his Paranoid Schizophrenia or Morbid Conjugal Jealousy, the father shows symptoms that he is moving from substantial remission to relapse; or
c)fails to comply with recommended treatment, including taking or accepting medication recommended by you or one of your colleagues, including failure to take the medication at the level recommended.
These orders enable the mother and paternal grandparents to make enquiry of you as to the wellbeing of the father, irrespective of his views, if any, he may have to the contrary.
These orders will apply until 7 March 2029.
These orders are designed to protect the children of the parties and to ensure that when they spend time with their father it is safe for them and the mother.
Given the scope of these orders it is intended that the privacy and confidentiality that normally applies to patient/health care professional is subsumed to the entitlements of the mother and paternal grandparents to obtain information from you and for you to provide information to them.
If you feel that you are unable to comply with these conditions, you must inform the mother and the paternal grandparents without delay.
I certify that the preceding three hundred and ninety-nine (399) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 20 October 2017
Associate:
Date: 20 October 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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Costs
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