Kabat & Anor & Garacia (No 4)

[2019] FamCA 508

FAMILY COURT OF AUSTRALIA

KABAT AND ANOR & GARACIA (NO. 4) [2019] FamCA 508

FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that the children live with her and spend no time with the father or the paternal grandmother – Where the father seeks that the children live with him and spend time with the mother and paternal grandmother – Where the paternal grandmother seeks that the children spend time with her at least once a week – Where the father poses an unacceptable risk of harm by reason of his coercive and controlling behaviour towards the mother and his involvement of the children in the parent’s separation – Where the father has demonstrated no insight into his damaging behaviour – Where the father has no capacity to comply with court orders – Where the paternal grandmother is intent on promoting the father’s agenda – Where the risk cannot be ameliorated by supervision – Where the children will live with the mother and spend no time with the father or the paternal grandmother

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
M & M (1988) 166 CLR 69
Moose & Moose (2008) FC 93-375

1st APPLICANT: Mr Kabat

2nd APPLICANT: Ms Kabat

RESPONDENT: Ms Garacia

INDEPENDENT CHILDREN’S LAWYER: Ms Bookallil

FILE NUMBER: BRC 7499 of 2017

DATE DELIVERED: 31 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 3 - 7 June 2019

REPRESENTATION

FOR THE 1ST APPLICANT: Self-represented

FOR THE 2ND APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Minnery

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Burchill & Horsey Lawyers

It is ordered that:

1. All previous parenting orders be discharged.

2. The mother, Ms Garacia, have sole parental responsibility for the children, X born … 2010, Z born … 2012 and Y born … 2012 (“the children”).

3. The children live with the mother.

4. The father, Mr Kabat, be restrained and an injunction hereby issues restraining him from spending time with the children.

5. The paternal grandmother, Ms Kabat, be restrained and an injunction hereby issues restraining her from spending time with the children.

6. The father and paternal grandmother be restrained and an injunction hereby issues restraining the father and paternal grandmother from:

   (a)       Communicating or attempting to communicate with the mother or the children verbally or via any means, including but not limited to email, text message, or social media;

   (b)       Approaching within 100 metres of the mother or the children; and

   (c)       Approaching within 100 metres of or communicating with the children’s school and/or health practitioners and/or extra-curricular activity provider.

7. The mother be permitted to provide a copy of this Order to the children’s schools, health practitioners and extra-curricular activity providers.

8. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to obtain passports or renewal of passports for each of the children in the exercise of her sole parental responsibility and without the need for the signature or consent of the father.

9. The mother’s application to formally change the surname of the children be dismissed.

10. The independent children’s lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabat and Anor & Garacia 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 BRISBANE

FILE NUMBER: BRC 7499 of 2017

Mr Kabat

First Applicant

And

Ms Kabat

Second Applicant

And

Ms Garacia

Respondent

REASONS FOR JUDGMENT

1. Mr Kabat and Ms Garacia are the parents of three children, X aged 8 and twin girls, Y and Z aged 6. Currently, the children live with the mother. The children have not seen the father since 17 October 2017. The father wants the children to live with him.

2. The other party in the proceedings is Ms Kabat. Ms Kabat is the paternal grandmother and she wants to be able to spend time with the children. The children have not seen the paternal grandmother since October 2017.

3. The mother opposes the father and/or the paternal grandmother seeing the children.

4. For the reasons which follow, I propose to order that: the mother have sole parental responsibility for the children; that they continue to live with her; and that the father and paternal grandmother spend no time with or communicate with the children.

5. Before setting out my reasons, I want to be very clear on one particular aspect of this case. The reason the father is not seeing his children is because of his own behaviour. It is not because of alleged lies told by the mother. The father ignored an order made by the Federal Circuit Court on 12 October 2017 and disappeared with the children. He sent an email to that court and to the mother which, on its face, indicated he may harm the children. He posted on his Facebook page a video link to a man who had thrown himself off a bridge. The father told lies to his psychologist and hid from police. He involved his children in the deception and has sought to make them his allies against their mother. The father’s obsession with ‘the truth’, as he sees it, has blinded him to the impact of his behaviour on the mother and the children, and his conduct for the past two years and throughout the trial fails to demonstrate any capacity to change.

Conduct of the trial

1. The hearing of this matter was expedited by an order made on 11 December 2018. On 20 February 2019, trial directions were made and the matter was listed for a five day trial commencing 3 June 2019. The parties were reminded of their ongoing duty to disclose any documents (including recordings) relevant to an issue in the proceedings, and an order to that effect was made on 20 February 2019. On two occasions prior to the commencement of the trial, the father was given extensions of time to file his trial material and an order was made requiring him to produce all relevant video and audio recordings.  

2. On the first day of the trial, the father applied for an adjournment. His application was dismissed and reasons given.

3. The father did not comply with trial directions for the filing of his material, despite extensions of time. The father was nevertheless granted leave to rely upon two affidavits by himself. The father was also given the opportunity to identify any other affidavits he wished to rely upon so that consideration could be given to further leave being granted. The father did not take up that opportunity.

4. The father has acted for himself throughout the proceedings and prepared his own affidavits. Despite the father having an impressive command of the English language he was provided a court appointed Language O interpreter. Initially, the father requested that the cross-examination of him occur using the interpreter. However, when the father commenced to answer in English, he indicated that his preference was for the cross-examination to be conducted in English, but for the interpreter to be available should the need arise. I observe that there were a couple of occasions when the father appeared to disagree with the translation provided by the interpreter.

5. The paternal grandmother indicated that she did not have any understanding of the English language and was provided with her own court appointed Language O interpreter, who provided an ongoing translation of the proceedings to her. The court appointed interpreter also assisted the paternal grandmother in the preparation of an affidavit and translated affidavits to her. The paternal grandmother had not filed any material and her application to rely upon affidavits on the second day of trial was dismissed and reasons given. The paternal grandmother was nevertheless granted leave, without objection, to make an oral application to spend time with the children.

6. The mother was provided with the assistance of a court appointed Spanish interpreter. The mother has a good comprehension of the English language and relied upon the interpreter predominately to provide some minor clarification during her oral evidence. The main reason offered for her requiring an interpreter was because of her pronounced accent and a concern that the Court may not understand her English.

Proposals

1. The father conducted the trial on the basis of a proposal that the children live with him and spend time with the mother as agreed. However, during submissions he identified a new proposal, namely, that X live with him and spend one day each week with the mother and one day with the paternal grandmother and that he have sole parental responsibility for X; that the girls live with the mother for forty percent of the time and with him for forty percent of the time and with the paternal grandmother for ten percent of the time; and that he and the mother have equal shared parental responsibility for the girls.

2. The paternal grandmother proposes that the children spend time with her at least each week.

3. The mother proposes that the children live with her and spend no time and have no communication with the father or the paternal grandmother. She also proposes that she have sole parental responsibility and that the children’s names be changed by removing the name Kabat.

4. The independent children’s lawyer (“ICL”) recommends that the mother have sole parental responsibility for the children and that they continue to live with her and spend no time with the father or paternal grandmother and receive no communication from them.

Issues

1. The parties identified the following issues[1] as relevant to the determination of this parenting dispute:

   [1] The issues were identified at the time of the trial directions in February 2019 and some remain issues at the father’s insistence despite the absence of any evidence to support them.

   a)Does the father pose an unacceptable risk of harm to the children by reason of alleged family violence or alleged personality vulnerabilities?

   b)If the father does pose an unacceptable risk of harm, should an order for long term supervision be made?

   c)Does the mother pose an unacceptable risk of harm to the children by reason of her alleged mental health issues?

   d)Is the mother emotionally, psychologically, or physically abusing the children?

   e)Is the mother engaged in ongoing criminal activities?

   f)Does the mother have the capacity to facilitate and encourage a relationship between the children and the father?

   g)Does the father have the capacity to facilitate and encourage a relationship between the children and the mother?

   h)Will the father comply with court orders?

   i)Should an order be made for the paternal grandmother to spend time with the children?

background

1. The father was born in Country O in 1978 and is 41 years of age. The father moved to Australia, as best I can determine, in or about 2006. The father works casually in the intellectual technology industry, although he seems to work mainly from his home when he does work. He lives less than an hour’s drive from Brisbane at Suburb S in C City.

2. The mother was born in Country W in 1975 and is 44 years of age. The mother moved to Australia in 2009. The mother and children live at an undisclosed address in Brisbane. The mother works and has been in the same employment since November 2016. She worked full time in 2017 and currently works five days per week from 8.30am until 3pm, an arrangement that has been ongoing since the beginning on 2018.

3. The paternal grandmother was born in Country O in 1951 and is aged 67. The paternal grandmother moved to Australia in about July 2016. It is not entirely clear where the paternal grandmother currently lives. She gave a rather unconvincing account of having recently moved from the premises she shared with the father to a unit in P Street in Brisbane. The paternal grandmother works in the service industry. 

4. The father and mother commenced a relationship in or about March 2009 and married in Sydney in 2009. Thereafter, the mother lived in Country V for approximately 11 months after her student visa expired. She returned to Australia and began cohabiting with the father in August 2010.

5. The mother and the father were both granted permanent resident visas in 2013.

6. The mother says that she and the father separated in July 2015, however, remained living under the same roof and had an ‘on again and off again’ relationship until July 2017. It seems the parties each maintained a residence during this time. The parties agree that they separated on a final basis in July 2017 and divorced in 2019.

7. The mother contends that after separation in 2015, the father imposed conditions on her ability to spend time with the children and would not permit her to spend time with all of the children at the same time. She says he was particularly restrictive over her time with X. The mother also contends that the father’s conduct in this regard continued after their final separation and that in the period 9 July 2017 to October 2017, she was only permitted to spend eight or nine nights with X, and her time with Y and Z was also restricted. The father disputes these contentions.

8. In July 2017, the father unilaterally removed X from his school and requested that the school keep this information secret from the mother. X did not attend school until after he was returned to the mother on 17 October 2017. The father contends that X undertook classes remotely.

9. The father commenced proceedings in the Federal Circuit Court on 21 July 2017.

10. On 14 September 2017, the father obtained an ex parte interim protection order against the mother. The only condition was a prohibition against the mother committing an act of domestic violence against the father. The father’s application was adjourned for mention at the Suburb D Magistrates Court on 28 September 2017. The mother opposed the granting of a final protection order. There is no evidence that a final order was made. The father’s allegations in his application for a protection order included that the mother was mentally unwell and a danger to the children.

11. On 25 September 2017, the mother filed her response and her first affidavit in the proceedings and served them on the father. The mother sought orders that the children live with her and that the father spend supervised time with the children at the Q Contact Centre.

12. Although the children were due to return to the mother’s care on 28 September 2017, the mother received a text message from the father at 1:28am on 28 September 2017 which said that “due to high tension, for the children (sic) safety, please, allow them to stay with me until Court has made the Orders”. The mother told the father that she disagreed with this and drove to his house to pick up the children that morning only to discover that they were not there when she arrived.

13. Between 28 September 2017 and 10 October 2017, the mother made multiple attempts to arrange with the father for contact with the children. The father repeatedly asserted to the mother that she was lying; that she was harming the children; and that she was mentally unwell. The mother was only able to speak with the children briefly on or around 30 September 2017. The father disputes that he restricted the mother’s time to the extent alleged.

14. On 10 October 2017, the mother instructed her solicitors to file an urgent application for a recovery order. The application was heard by a Judge of the Federal Circuit Court on 12 October 2017, when both the mother and the father were present in court.

15. The order required the father and mother to attend upon a family consultant at 9.00am the following day so that the court could be assisted by hearing from an independent person about the current issues affecting the family. The father was also ordered to return the children to the mother’s care that afternoon, and for that to occur at the Brisbane registry of the Federal Circuit Court by 4.00pm. The father was present when the order was made and the order included a provision that if he did not return the children to the mother, a recovery order would issue authorising the police to remove the children from the father.

16. The mother returned to the registry at approximately 3.45pm on 12 October 2017. By 4.10pm the father had not arrived and the mother received no response to her attempts to contact him.

17. The recovery order issued.

18. At 10.02pm on 12 October 2017, the mother received a text message from the father which said that he “will do everything possible to protect our children” and “I am ready to give my life for our kids”.  

19. On 13 October 2017 at 9.24am, the father sent an email to the Federal Circuit Court saying, among other things, “I am also ready to give up my life to protect our children if I must”.

20. When the father failed to attend upon the family consultant on 13 October 2017 as required by the order made the previous day, a warrant was issued for his arrest.

21. An interim order was then made for the children to live with the mother and spend no unsupervised time with the father. An independent children’s lawyer was also appointed to represent the children.   

22. Also on 13 October 2017, the father posted a video on his Facebook page entitled “…”.

23. An amber alert[2] was issued by the Queensland Police Service and a search was carried out for the father and children over the following days. The mother continued to receive text messages and emails from the father during this time suggesting they meet up. The mother, on advice of the police, did not respond to these messages from the father.

    [2] A decision made by police to indicate that children may be at risk of harm.

24. On 16 October 2017, the father’s car was found abandoned. The police ascertained that a hire car had been obtained by the father in his mother’s name and the hire car was eventually tracked to a local shopping centre.

25. At 4.00pm on 17 October 2017, the children were located by the police and returned to the mother. The father was arrested but not detained. He was served with a temporary protection order, which the mother applied for on 13 October 2017 and which was granted on 16 October 2017. The terms of the order were explained to him. The temporary protection order prohibited the father from, among other things, contacting or attempting to contact or asking someone else to contact the mother by text message, email, phone or social media; keeping the mother under surveillance; using the internet to publish pictures or make comments about the mother etc. 

26. The police ascertained from the father’s phone that he had been on the mother’s property (prior to him being served with the temporary protection order) and had taken a video of her through a window. It appears that this video recording formed the basis, at least in part, for a stalking charge against the father. 

27. The mother and children did not stay at the mother’s home on the evening of 17 October 2017. On that evening, (after the father had been served with the temporary protection order) the mother received several text messages from the father in which he said, among other things, that he knew she and the children were not at her home. The father was arrested and held in custody until 8 November 2017 for breaching the temporary protection order. The father contends that he did not understand the terms of the protection order.

1. On 29 August 2018, the father was dealt with on a charge of unlawful stalking of the mother between 1 July 2017 and 18 October 2017. Police records reveal that the father had footage on his phone of the mother watching television taken from outside her lounge room window. The father pleaded guilty to the offence and was placed on probation for eighteen months. The father contends that he pleaded guilty under duress. The nature of the duress was said by the father to be his need to start at a new job. During the hearing in the local Magistrates Court, the father told the magistrate that when he was video recording the mother at her home, the children were left in the car outside.

2. The partial transcript of those proceedings refers to other charges involving breaches of the protection order, including one on 28 March 2018. The evidence before me particularises nine alleged breaches of the protection order by the father during the period 17 October 2017 and 19 May 2018. It is unclear whether the father was dealt with for the breaches of the protection order (some of which were to be dealt with in the local court on 27 March 2019) and, if so, what sanctions, if any, were imposed. Rather unhelpfully, the father’s criminal history[3] is now somewhat dated i.e. November 2018. During the trial, I thought it was common ground that the father had been dealt with for breaches of the protection order, however, the father’s written submissions assert that the “DVO breaches were dropped after almost a year”. The father does not appear to dispute a number of the breaches but says either that he did not understand the conditions of the protection order, or that the breaches were “very light breaches”.

   [3] Dated 12 November 2018.

3. A final protection order was made against the father for the protection of the mother and children on 19 September 2018 for a period of five years.

Applicable legal principles

1. In determining what parenting order is proper I must apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered.[4]

   [4]Family Law Act 1975 (Cth) s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The reference to ‘person’ in s 64B includes a parent and grandparent.

4. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those subsections make it clear that the Court is concerned with, among other things, a child’s right to know and be cared for by both parents and the right to spend time with and communicate with both parents and other people significant to their care when it is safe for that to occur.

5. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

6. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

7. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

8. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

9. The Court is not required to make findings of fact on every factual dispute raised by the parties.[5] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[6]

   [5]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [6]M & M (1988) 166 CLR 69.

10. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

11. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

12. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

13. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

14. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

15. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[7]

    [7]Banks & Banks (2015) FLC 93-637.

16. I turn now to consider the application of the legal principles in the context of the significant issues raised by the parties.

Does the father pose an unacceptable risk of harm to the children by reason of alleged family violence or alleged personality vulnerabilities?

1. The nature of the family violence alleged against the father in this case is behaviour that was coercive and controlling, both during the marriage and after separation. The father’s behaviour is alleged to include the following:

   a)Restricting the mother’s contact with the children unless she agreed to his demands;

   b)Refusing to listen to the mother’s point of view;

   c)Persistently seeking to control the mother’s time with the children and interfering with the mother and the children by recording the mother and seeking to enforce his views;

   d)Persistently involving the children in the dispute e.g. by asking the children questions about the parent’s relationship and frequently saying to the children  – ‘mummy is sick’, ‘mummy does not feel well’ and ‘pray for mummy’;

   e)Causing the mother to feel that she was sick;

   f)Yelling and screaming at the mother in front of the children and asking the mother to explain to the children why she does not want to be a family with them and the father;

   g)Asking the mother to pay him when he looked after the children while she was at work;

   h)Monitoring the mother’s text messages and location via ‘apps’ installed on her phone;

   i)Taking the mother’s money to pay for a house occupied by his mother;

   j)Telling the mother she had to pay his rent because she had hit him in the face;

   k)Taking the mother’s debit card under threat of making a false allegation to police that the mother had left the children home alone.

2. One particular example of the father’s attempts to control the mother is aptly demonstrated by an email sent to her by the father on or about 9 October 2016, which purported to set out an ‘agreement’ about how the parents would spend time with the children. The main objective of the ‘agreement’ is stated by the father to be to “achieve stability within our family through stabilization of [the mother’s] emotions/feelings”. The ‘agreement’ went on to require the mother to attend upon a psychologist and “to spend 30 min per day working on [her] emotions”. The father would not permit the mother to see the children until she signed the agreement. The mother did not agree with the conditions imposed upon her and initially refused to sign.

3. The father sent the mother an email at 4.25am after the mother’s refusal. The subject line was –‘exorcism pls read’. In that email, the father sent the mother a link to a news article published online by the Sydney Morning Herald entitled ‘Defeating the Devil, Why Exorcism in Australia is on the Rise’. The email also stated –“the possessed, the book says, are almost always female”.

4. Later that day, the father sent a further email to the mother which said – “although yesterday I read it to you all and we agreed you will sign today, you refused to sign” and continued - “please, let me know how you would like to proceed as I don’t know what to do now. It is really scary how you behave”.

5. As a result of her refusal to sign his proposed agreement, the mother says, and I accept, that the father withheld Y and Z the following day, although they were due to return to her care. The mother then signed the ‘agreement’.

6. The father says in his trial affidavit that he was not responsible for preparing the agreement. He says that the agreement was prepared because the “children suffered from observing her mistreatment of me, her forcesful (sic) demands, her punishments in the (sic) front of the children if I didn’t follow”. I reject the father’s evidence that he did not prepare the agreement.

7. The father sent numerous emails and text messages to the mother suggesting she may be possessed by Satan and alluded to the necessity for exorcism. One of these emails included the statement that the mother needed to deal with - “the devil that guides you against me all the time”. Another one implored the mother - “Just ask God to forgive you. I forgive you all too, but I can’t help you when u enjoy the pain”. Yet another message said – “You just need to repent your sins, and this way you will kick out the ‘spiritual monsters’ that r attached to you”.

8. The father set up a website in 2017.  The website disclosed intimate details about the family and initially included a photograph of the mother and the children.

9. While the father contends that the website was not available to the public, he concedes he made the website available to various people including X’s school, a local reverend, and a person who had been a mutual friend of the parents. During cross-examination, the father maintained there was nothing wrong with the website. He demonstrated no insight into the inappropriateness of his actions. It is not clear what the father hoped to achieve but it certainly had the effect of turning people against him, an outcome I assume he did not intend.

10. The website included the following comments by the father:

    Vaccination

    My wife doesn’t love our children and she is a liar – heart without love - PROVED

11. The mother explains that without vaccination, the twins could not attend day care and the childcare rebate was not available unless the children had been vaccinated. The mother was employed full time and needed the income to support the family. In those circumstances, she did go ahead and vaccinate the children despite the father’s objections. As it turns out, the father no longer objects to vaccination and acknowledges that some of the internet information he accessed was not soundly based.

12. After the parties separated on a final basis in mid-2017, the father continued to restrict the mother’s contact with the children and imposed a number of conditions upon her contact with them, in particular, her contact with X. In the three month period from July 2017 to September 2017, the mother spent only nine nights with X.

13. One of the conditions the father imposed on the mother being permitted contact with X was that she sign paperwork for Centrelink which attributed one hundred per cent care of X to the father. The father then used this as a justification to restrict her time with X and to also unilaterally withdraw X from school in June 2017. In a lengthy email sent by the father to X’s school on 23 June 2017, he makes various allegations against the mother and asks the school not to inform the mother of his intention to withdraw X and move away. He also provides a link to the website he created.

14. The father had also sought to involve X’s school in the mother’s decision to vaccinate the twins. In an email sent by the father on 21 June 2017, he not only complains about the mother’s actions, he sends a link to various internet sites about domestic violence and anti-vaccination. It remains a mystery why the father would think that X’s school would be remotely interested in his various complaints about the mother and his views on vaccination.

15. The types of behaviour alleged against the father by the mother are corroborated by and/or consistent with the behaviours described by a number of witnesses, whose evidence I will now turn to consider. The observations and opinions of these witnesses are also relevant to the father’s personality and how this has impacted on the family. 

Dr F - psychologist

1. Dr F is a very well credentialed psychologist with over thirty-two years’ experience. He first met the parents in May 2015 and saw them on three occasions over May and August 2015. He then saw the mother on seven occasions between November 2016 and February 2017, and again on two occasions in September and October 2017. He did not see the father again until 27 November 2017.

2. During his oral evidence, Dr F said that the father was persistent in seeking that the mother be diagnosed with a mental illness. When he saw the father in 2017, Dr F opined that there had been no abatement in the father’s insistence that the mother suffered from a mental illness. Dr F’s notes from various dates are informative.

3. On 16 May 2015, Dr F opines:

   … [Mr Kabat] (sic) is very blunt and domineering. He insists that [Ms Garacia] (sic) must have a mental illness and that she must be convinced of this. … [Mr Kabat] (sic) does not listen to feedback. He pursues his own point of view with no regard to feedback. [Ms Garacia] (sic) appears to be very unconfident and helpless. …

   … [Mr Kabat] (sic) very dominant. [Ms Garacia] (sic) very passive. ... [Mr Kabat] (sic) insisting that [Ms Garacia] (sic) must be mentally ill as she doesn’t parent the way he thinks she should.

   … [Mr Kabat] (sic) has requested intensive sessions to have [Ms Garacia] (sic) understand that she is mentally ill. …

4. On 23 May 2015, Dr F notes:

   … [Mr Kabat] (sic) continues to insist that [Ms Garacia] (sic) must have a serious mental health issue. He agreed to work on communication but was not really invested in this. …

5. On 14 August 2015, Dr F notes:

   … [Mr Kabat] (sic) reported that he has seen a few other psychologists in the intervening period. He appears to have bee (sic) “doctor shopping” and insists these other psychologists agree with him that [Ms Garacia] (sic) has a mental illness. [Mr Kabat] (sic) was insistent that something is wrong with [Ms Garacia] (sic) and that she needs to be controlled. [Mr Kabat] (sic) does not seem to be aware of how controlling and disturbing his behaviour is. …

6. Dr F saw the father next on 27 November 2017 and his notes reveal the following:

   This was a session requested by [Mr Kabat] (sic). He is currently separated from [Ms Garacia] (sic). The session was short and terminated by myself. [Mr Kabat] (sic) wanted to have a conversation with me about why he was correct in his assessment of [Ms Garacia]’s (sic) mental health. He wanted to know why I didn’t concur. I explained to [Mr Kabat] (sic) that I believed that he may have a mental illness or personality disorder. That his obsessive anxiety about his children’s safety and his insistence that [Ms Garacia] (sic) was ill, … were indications for me that there was something wrong with him. I acknowledged that I hadn’t assessed him for a diagnostic purpose but highlighted some of his behaviour that I found indicative.

   I terminated the session when [Mr Kabat] (sic) revealed that he had been recording the conversation without my knowledge or consent.

7. The father’s response to Dr F’s advice was to threaten to report him to the Australian Psychological Society for ‘unethical’ conduct. According to the father, Dr F told him he was manipulative and that he was scared of him.

Mr G - psychologist

1. Mr G has practised as a psychologist since 2005. He saw the father thirteen times commencing on 7 July 2017. He also saw the children on a number of occasions. On 8 July 2017, the father told Mr G that many people do not understand the mother’s mental health condition and the he needs assistance to highlight concerns about her. X was present during this session, playing with toys.

2. In a letter dated 27 September 2017, Mr G states that he had seen the father on nine occasions and had met all three children in two sessions together and that X had attended on two further occasions. Mr G notes that the father said that the mother has diagnosed and untreated mental health conditions and that if the children are taken away from the mother, she may be compelled to harm the children.

3. During his oral evidence, while agreeing with the father that the children appeared comfortable when he saw them with the father, he also said they appeared “very withdrawn”. During the sessions that involved the children on 10 and 11 July 2017, Mr G notes that the father tried to gather the children’s views about the mother and that the children became shy and withdrawn when the mother was raised. Faced with this situation, Mr G encouraged the father to refocus on the children playing and advised him that too much questioning could cause the children distress. He also advised the father to avoid questioning the children because they could be easily led.

4. On 3 August 2017, the father expressed surprise to Mr G that “his tone and method of explaining concepts could be perceived as aggressive by others”. Mr G provided the father with significant educational material on how to conduct himself and manage the concerns he raised in a more constructive and conciliatory way. It is my assessment that nothing changed.  

5. I note that, like a number of witnesses in this case, Mr G has been inundated with emails and documents from the father. The father’s continual focus is the mother’s alleged lies and alleged mental illness.

6. Mr G made many attempts to refocus the father and encouraged him to focus on the children. His attempts failed. Mr G contacted police on 17 October 2017 when he realised that information provided to him by the father on 14 October 2017[8] was likely to be false. The father had led Mr G to believe that the court proceedings had been adjourned and that the mother knew where he and the children were. In Mr G’s view, despite the father’s stated intentions to protect his children, “he was seemingly unaware or out of touch with the impact of his behaviour”.

   [8] It was common ground during the trial that the reference in the notes to 9 October should have been 14 October 2017.

1. Mr G told the father he did not think further appointments would be beneficial. The father sought out Mr G on a number of further occasions and sent him material as recently as 8 May 2019. In that communication, the father wrote to Mr G saying, among other things: (as per original)

   … I just keep fighting days and nights, didn’t stop for 1.5 years for a moment. How could I when I know my chidlren (sic) need help. If you don’t mind, please, have a look what is happening below. Reports say they suffer. I am surrounded by lies, all my good deeds are turned against me. … 

   …

   … the amount of factual lies that I can prove on spot, is insanely large. Yet the Family Court process take years before lies can be clarified.[9] Worst, it seems none cares.

   [9] This statement is particularly ironic given the father’s frequent attempts to delay the proceedings.

2. The father includes with this letter, pages and pages of his writings and character references etc. which he requests Mr G to read.

Mr H - psychologist

1. Another psychologist consulted by the father and, on one occasion, by the mother is Mr H and his notes also form part of exhibit 2. He was not required for cross-examination.

2. Mr H saw the mother on one occasion on 21 July 2015. His notes reveal that he considered that the mother was “someone with good insight and is showing some signs of low mood due to the stress and difficulty in her relationship with her husband”.

3. Mr H also saw the father on 21 July 2015, and his notes reveal his opinion that the father “does not seem especially motivated to explore his impact on [the parent’s] interaction, preferring to focus on [the mother’s] flaws”. Mr H saw the father again the following day and his notes reveal his attempts to redirect the father’s focus towards how he can improve on “potential narcissistic traits, inability to empathise with wife, inflexible thinking: seeing things only from his point of view”. These attempts did not appear to be successful as Mr H goes on to note that the father – “is still resistant to the above and is more keen to point out the negative aspects of his wife” and “he does not seem to agree with my goal to explore his own way of communication (or feel that it needs to be worked on)”.

4. On 9 May 2019, the father hand-delivered some documents to Mr H’s practice reception and on the envelope the father had put Mr H’s home address. Mr H’s notes reveal that he was unnerved by the father’s action. The father, in his evidence, gave various accounts on how he came to have Mr H’s home address e.g. that Mr H had provided it to him; that he had ‘Googled’ it; that he had obtained it from ‘LinkedIn’. I find all of those accounts unlikely. I find that the father’s intention was to intimidate Mr H by letting him know that he knew where he lived.

Ms J - friend

1. Ms J was, at one time, a friend of both parties having met them and the children at the end of 2016. Her evidence also lends weight to the mother’s description of the father’s controlling and often bizarre behaviour.

2. The mother was identified by the reverend at the local church as someone needing some support, so Ms J sought her out. Ms J recalls that the mother appeared quite withdrawn in the father’s presence.

3. On 9 March 2017, the mother broke down in Ms J’s presence and said how isolated she felt and that the father sought to control her and everything she did.

4. Ms J corroborates the mother’s evidence that the father restricted the time and the circumstances in which the mother could see the children. Ms J became so concerned for the mother that she referred her to a domestic violence service.

5. In about May 2017, Ms J started to receive what became a barrage of emails from the father. He repeatedly accused the mother of having mental health problems and of lying.

6. The father’s many emails included statements such as:

   Satan is the father of lies. My wife lies a lot. And she knows it. She admits it. And she continues it.

   Please read the latest BIG lies [and referred Ms J to the website he had created].

7. The father instructed Ms J to question the mother about the “6 proven lies in her 1 message” and said that her lying was due to a deep psychological condition. The father then accused Ms J of helping the mother to secretly vaccinate the children.

8. On 23 September 2017, matters came to a head when the father attended a birthday party at Ms J’s home. It was a party for the twins. The father returned to the party at about 4.00pm and insisted on taking X. When Ms J told the father that X was playing with the twins, he tried to push past her but she stopped him. It all became quite unpleasant and the children were a witness to the fracas. At one point, X was in the middle of his parents with each of them pulling on an arm. Police attended but by that time, the father and X had left.

9. Ms J accompanied the mother to collect the children when they were recovered by police on 17 October 2017. X said the father told the children that if the police found them, he would never see them again. The children told her and the mother that they had been sleeping in a car and had no pillows or blankets or clean clothes. They also said they had been sleeping outside the mother’s home. X was noted to have a severe rash on his bottom that caused him significant discomfort.

10. On 10 November 2017, Ms J received another email from the father which was also copied to Reverend K, the reverend at the church they all attended. The father accused the mother of admitting many times that she harms the children and that people like the mother will not change without years of therapy and “they get worst (sic) (proven with her behaviors (sic)) and have no limits in evil doings, and in worst cases they kill their children”. The father also accused Ms J and the reverend of helping to create a “war” that “will have to escalate hugely over many courts”.

11. On 12 November 2017, yet another email was received by Ms J from the father and this time the father said that there would be “disastrous consequences” for all unless all false allegations were taken back, court proceedings stopped, and intensive consultations with mental health professionals undertaken by the mother.

12. Throughout her evidence, Ms J refused to look at the father and appeared quite uncomfortable while answering the father’s questions. Ms J was clearly frustrated with the father’s persistence in seeking to involve her in the dispute and at one point said - “The way you carry on talking about the same thing over and over again…. About [the mother] and her telling lies”.

Reverend K

1. Reverend K met the family in about August 2016 when the family became regular attendees at his church. He corroborated the mother’s evidence that the father repeatedly withheld the children from her. In mid-July 2017, Reverend K said that he became frustrated with the father as he pressed him to agree to permit the mother to see the children and the father just would not commit to doing so.

2. Reverend K met with the father on a number of occasions. The father commenced to send him emails in about February 2017. On one occasion, the father sent the reverend a link to an article titled: ‘Shocking moment young students possessed by evil spirits scream and writhe on the floor after Ouija board session in [Country W] as cops investigate’.

3. On 9 March 2017, the father sent Reverend K two emails in quick succession suggesting that the devil was interfering with the mother and intimated that the mother may kill the children.

4. On 16 July 2017, copies of various emails the father had sent to the mother were forwarded by the father to the reverend, as was the link to the website he had created. The reverend tried to point out to the father that his actions were being counterproductive. The father responded that the mother was a: (as per original)

   …proven abuser, diagnosed with mental illness, the subject to help from all psychologists we visited (not me), who hits, pushes, ignores, treats like an air, misuses others solely to own benefits, decides on her own about kids, hides, keeps secrets, disrespects, doesn’t care, tries to execute full control via money, manipulates, is violent, can’t control herself, doesn’t care about the kids, only first about herself[10]

   and that the mother is an “abuser who behaves like the devil himself”.

   [10] Errors appear in the original.

5. The father’s emails to Reverend K continued throughout July 2017. The content of them contained a persistent theme, namely, of the mother being a liar and not caring about the children.

6. In September 2017, the father dropped in at a camp at which the reverend was running programs. The reverend was effectively summoned by the father to meet with him. The father had the children with him but was not supervising them, which caused the volunteers at the camp to have some concerns for the children’s safety. The father insisted that he wanted to talk to the reverend about the mother and handed him a volume of paperwork to read. The father’s behaviour was totally unreasonable and demonstrated, yet again, the father’s obsessive and fixated views about the mother.  Reverend K was so concerned about the father’s presentation that he contacted the Department of Child Safety, Youth and Women (“the Department”).

7. In January 2018, the father sent Reverend K a package containing a typed letter which referenced an article about mothers who kill their children. The father also alleged that the mother had “secured support from aggressive individuals who helped her to abuse children”. Again, he accused the mother of lying, being abusive, and harming the children.

8. Another letter from the father to the reverend in February 2018 refers to the father taking the children to a psychologist and an admission that he had been looking through the mother’s window. There were also numerous photographs of the family covered in the father’s writing. The father sought to justify his behaviour to the reverend. The letter also said that the children are suffering and were “all against [Ms Garacia] because they say how nasty she was to me” and were now being brainwashed by her.

9. On 28 May 2019, the father sent four text messages to the reverend accusing him of being a liar and committing a criminal offence and strongly suggesting to the reverend that he withdraw his lies before the matter goes to court. Reverend K says that he considered the messages to be threatening. The messages could certainly be perceived in the way the reverend describes.

Dr L – psychiatrist

1. The father was psychiatrically assessed for the purpose of these proceedings by Dr L, who saw the father on 19 April 2018. The father provided Dr L with a fulsome account of his version of events and concerns, including a concern that the mother would kill the children. Dr L opines that the father appeared to have “somewhat of a paranoid stance towards the mother” and that while it was possible that the father was developing a Delusional Disorder, he considered that the father’s “fixed beliefs and the associated exhibition of poor judgment, is more a function of his underlying personality structure rather than evidence of a psychotic illness, although a Delusional Disorder cannot be fully excluded”. Dr L considered it “quizzical given his concerns about profound character pathology present in the mother, as well as severe mental illness, that he continues to seek to reconcile with the mother”.

2. Dr L opines that if the mother’s account is believed:

   … the father would be seen to be exhibiting features of an Obsessive-Compulsive Personality Disorder with an excessive need for control of others, as well as his own circumstances. Even by the father’s own documentation, there certainly appears to be an obsessive quality to the father’s personality, … The oddness in the father described by others, may well be attributable to any (sic) underlying schizoid or schizotypal traits, although I should admit that the latter two were not overly apparent on cross-sectional assessment with myself. …

3. During the father’s cross-examination of Dr L, the father suggested that he suffers a disadvantage because English is not his first language. Dr L disagreed and said that the father had an “exceptionally good understanding of English” although accepted that the father’s “expression” may have been impeded to some degree. Dr L went on to say, however:

   I would say that the information provided which increased my concern was less around what was written in your own affidavits but … information provided by others about some of your behaviours that were described by others as odd and unusual. And also some of the fixed beliefs that you had and some of the judgements that you made, which I think were not in your own best interests and to the detriment of yourself as well as potentially the children. So those kinds of issues raise alarms for me as to why is this happening, why is an otherwise sensible, intelligent person acting in ways which are very much to your own detriment and one explanation is that these behaviours and judgements are driven by delusional processes. That is, you formed a view that is irrational and morbid.  Although not completely so in a schizophrenic sense, but in what we call a delusional disorder, which is that the beliefs are understandable at some level but that they remain fixed when there is evidence otherwise to the contrary. Again, my own view is that I think this is more a function of your personality and the way you see the world rather than a psychotic process. But the distinction between the two is quite difficult and I think that is why I have suggested that more longitudinal assessment may be warranted.

Mr M – psychologist

1. Mr M prepared a family report in this matter after conducting interviews of the parents on 9 and 23 June 2018 respectively. Mr M obtained his formal qualifications in 2002 and has been in private practice since 2009 but has recently retired. He describes the father presenting as rather cold and occasionally hostile. The father told Mr M that he feared the mother would kill the children.

2. Mr M agreed with Dr L that the more likely explanation for the father’s beliefs and behaviours are personality related and said:

   Put another way, he may simply be obsessive, intense, possessive, jealous, and lacking in abilities of self-reflection and empathy by his virtue (sic) of his nature or his personality, rather than as a result of an illness.

Video recordings  

1. The children were not only exposed to the father’s behaviour prior to 17 October 2017, they were invited by the father to become involved in the parent’s dispute, as the video evidence (exhibit 20) aptly demonstrates. This is one of apparently hundreds of video recordings taken by the father, on his own admission. In the video recording, the mother and children are seated around a dining table eating a meal. One of the girls is sitting on her mother’s lap. The father (who is off camera) invites the mother to tell the children “how bad I treat you”. The mother responds quietly – “They know already”. The father then asks the children if they know and they indicate they do not. The father then says to the mother – “Well, no one knows, I don’t know either”. The father persists in asking the mother – “Ok, what is my treatment? What is bad in my treatment? And I am sorry, I just, the children don’t know, I don’t know, you have been complaining about my treatment for years but you never said what is, what is wrong with my treatment”. X approaches the father and hugs him. The last thing said by the father is – “daddy does something bad to mummy that mummy doesn’t like” and X says “no”. It is a most uncomfortable scene to witness. The mother looks defeated and the undercurrent of control by the father is palpable. X’s actions may be interpreted as an attempt to appease the father. The father relied upon the recording to demonstrate the mother putting him down in front of the children – it did not.

2. The other recording tendered by the father[11] is almost impossible to hear but  the father has created typed dialogue boxes of what he contends is said on the audio recording and holds his typed versions up to the camera. The content is of no forensic value, but it is an example of the father’s bizarre and obsessive behaviour. 

   [11] Also part of exhibit 20.

3. During the trial, the father said on numerous occasions that he had hundreds of recordings. The father disclosed in these proceedings only seventeen recordings. Two of those became exhibits.[12] Another recording was played during the father’s evidence. The father had video recorded his young son in a public toilet, sitting on the toilet with his pants down. The father smiled during the playing of the recording in court, which I thought was an odd response to a room full of strangers viewing his son in such an intimate situation. The father said that the purpose of filming his son was to demonstrate that his son was happy while with his father. As with the previous recording, the content is of no forensic value but it is an example of the father’s bizarre and obsessive behaviour. 

   [12] Both contained in exhibit 20.

Queensland Police Service records

1. Records produced by Queensland Police Service[13] dated 9 December 2018 reveal that a review of “the entire recent correspondence” and conclusions reached, as follows:

   He [the father] continues to overvalue his concerns for the childrens (sic) safety and the mental health of the mother, now talking of suicide.

   He appears to be paranoid of the goings on in his street, leading him to believe the mother is arranging things to cause him harm.  This has previously been reported to Town U and the footage only shows cars in his street, him following cars and a possible attempt UEMV [unauthorised entry of motor vehicle].

   He refuses to acknowledge any responsibility for his behaviour and continues to cherrypick (sic) things that he believes support his cause.  On several occasions it is quite the opposite e.g. when he is questioning X about being afraid and X states he is fine, which KABAT contradicts.

   He appears to have little understanding of the relevant court processes e.g. claiming he had a DVO when it was just an application.

   There is a current DVO and the matter is before the FLC protecting the aggrieved and the children.  As such there is no immediate concerns for the childrens (sic) welfare and no further action is to be taken by CPIU.

   [13] Exhibit 10.

Conclusion about the risk of harm posed by the father

1. Having observed the father throughout the trial, heard from the numerous witnesses, reviewed the exhibits, including the video evidence tendered[14] by the father, I have come to the conclusion that the mother’s allegations of family violence against the father are well founded.

   [14] Exhibit 20.

2. The father’s behaviour towards the mother has been coercive and controlling and the children have been exposed to his behaviour. One can only imagine the enormous pressure the mother would have been under when constantly told what she could or could not do with the children and that she was mentally ill. The father sought to control most aspects of the mother’s life. He was manipulative and cruel. What is particularly egregious about the father’s behaviour, is his attempt to make the children his allies against the mother.

3. The risk to the mother and children of exposure to family violence in future would be unacceptable if the father were permitted to contact the mother, because the father has demonstrated no sign of recognising that his behaviour is a problem, let alone addressed it.

4. As to the father’s personality vulnerabilities, I note that Dr L and Mr M consider the father’s behaviour is more likely to be related to personality vulnerabilities than mental illness. Dr L opines that irrespective of the father’s intentions, his “actions are likely to have caused considerable emotional harm to the children”.

5. The father’s problematic behaviour includes his aggressive and persistent seeking of a diagnosis of mental illness for the mother from various psychologists over many years. While the father contends that his motivations were honourable, namely, that he wanted to help the mother, the evidence persuades me otherwise. The various psychologists approached by the father rejected the father’s claims and in turn raised concern about the father’s own mental health. The father rejected those concerns and reacted by attempting to harass or intimidate those psychologists.

1. Reverend K and Ms J impressed as genuinely trying to help this family and I accept their evidence. Sadly, like so many people who attempted to help the father, once they questioned his version of events or encouraged him to see another point of view they became the enemy and he sought to intimidate them.

2. During the trial, the father presented as a quiet yet determined man. Despite his case against the mother, namely, that she had harmed the children, he focussed on largely irrelevant minutia in his cross-examination. He would not be deterred. The father also presented with strong persecutory ideas e.g. the system is against him, the ICL and mother’s lawyers are likely to have been stalking him, and the mother was trying to ‘silence’ him.

3. As already noted, the father has involved all three children in the dispute but particularly X. The father has video recorded himself asking the children if they know what the mother is complaining about. He has also used X’s name to sign off on some of his letters/emails to the mother as well as his own. He has taken the children to a psychologist and sought to elicit criticisms of the mother from them. He kept the children from the mother on numerous occasions and in particular, during the period 12 October 2017 to 17 October 2017 when he slept with them in a car. He told the children that the mother does not want to be a family. He wrote a letter to X from prison in October 2017 in which he said, among other things: (as per original)

   … when we were hiding from the police to escape unfairness and justice, just before they located us in the car you suggested to change the car. …

   …  

   I trust I will see you in a few days but if it should take longer for any reason I owe you some explanation.

   Even before you were born for some reason I don’t understand and I guess your mother doesn’t understand, your mum has been quite sad and angry especially at me everyday. For some time I thought I must have done something wrong but I established that no matter what I do, your mummy still doesn’t feel better. Unfortunately you witnessed that made your mum to behave not too nice towards me, sometimes towards you and other people …. your mum’s behaviour became really bad so I did do what you asked me to …

   I hoped we can talk to mummy to understand what’s happening but mummy took lawyers making it all very difficult ….

   Mummy said I can’t send her messages. She sent a message. I replied and for that she reported me to Police and put me in jail. … I drove past the house. … mummy didn’t tell the truth about me so Police was thinking I’m dangerous.  

4. The letter was not sent to X but the father indicated an intention for X to receive it at a later time. The letter is concerning for a number of reasons, including: the father has involved the child in hiding from police; he has criticised the mother and sought to blame her for the family’s problems; he has suggested that the child is responsible because the father ‘only did what the child wanted’; he shares with the child details of the dispute and accuses the mother of lying and of putting the father in gaol.

5. Whatever reason lies behind the father’s behaviour over the many years, it has been damaging for the children to have been exposed to it and the prospects of the father gaining insight into his behaviour and changing seems remote.[15] Many people, including experts in the field of psychology, have sought to assist the father. He has rejected their opinions and advice. Nothing in the father’s conduct during the trial affords any reason for optimism that he has the capacity to change.

   [15] The father relied upon a report from a Dr B dated 24 July 2018 and suggested it supports a contention that he has undertaken therapy as recommended by Mr M. The report does not establish that. The report and others included in exhibit … opine only that the father does not suffer from a mental illness.

6. I can have no confidence that the father would desist from his damaging behaviours if he were to spend time with the children. The risk of harm is unacceptable.

If the father does pose an unacceptable risk of harm, should an order for long term supervision be made?

1. The only way the children might be able to maintain a relationship with the father is by long term supervision of his time with them. Such an order will only be made if supervision can appropriately protect the children and if the benefit of such contact outweighs the detriment. In other words, there needs to be some ‘cogent reason’.[16]  

   [16] See Moose & Moose (2008) FLC 93-375, [10].

2. During his interview with the father in June 2018, Mr M, the family report writer, refers to a “debate” about the meaning of the court orders and whether or not the father was permitted to communicate with the children via telephone, with the father maintaining that he was and that the mother refused. Mr M goes on to say:

   47. …He related it back to her [the mother’s] documented concerns that if he were to have supervised contact with the children he would discuss the issues of the parenting dispute with them and blame her for him not being allowed to see them. Mr Kabat stabbed at this point with a finger and then loudly proclaimed “in other words, she is afraid I will tell the children the truth!”, despite the fact that this was one of the reasons he was why (sic) the court declined to allow him some form of supervised time with the children. These are not good signs …

   48. Mr Kabat guaranteed that he would abide by any decisions that the court made, but unfortunately, I harbour ongoing concerns about his willingness to live up to that guarantee. … I think he might not be able to resist opportunities to denigrate the mother to them, given that this is a very central aspect of his beliefs about her and the situation and he becomes quite agitated about these issues.

3. Mr M remains very pessimistic about the father’s capacity to change and expressed concerns about the father using his time with the children to not only tell them his ‘truth’ but also to find out where they live. Mr M’s concerns were intensified by the father’s presentation as “very intense, obsessive, preoccupied, and self-righteous”. Mr M recommends against the father spending time with the children. While acknowledging that such an outcome is a tragedy, he opined – “it is a tragedy made of [the father’s] own attitudes, decisions, and behaviours”. I accept Mr M’s recommendation and his opinion accords with my own.

4. Dr L expressed some doubt that supervision of the father’s time with the children could adequately protect the children from him if he continues to believe the mother will kill them. I note that, as at 21 May 2019, the father was still raising this as a concern and it formed the basis of his objection to the mother viewing the video recordings he was to produce. Throughout the trial, the father maintained that the mother was harming the children.  

5. The father is manipulative. He may be quietly spoken but his propensity to try and wear people down is now somewhat notorious. I do not consider that supervision in a contact centre would be a sufficient deterrent to prevent the father seeking to undermine the mother’s relationship with the children, as he has done for years. There is also a very real risk that he would abduct the children, given his conduct in October 2017.

6. While I have no doubt that the children miss the father and want to have a relationship with him, their safety and wellbeing is paramount. The children are doing well at school and have developed into confident and happy children who have a close relationship with the mother. That does not mean that they will not struggle at times because of their loss but I am not prepared to jeopardise the children’s current stability by re-introducing the father into their lives when the likelihood is that his behaviour will cause them harm and undermine their relationship with the mother.  

Does the mother pose an unacceptable risk of harm to the children by reason of her alleged mental health issues?

1. The mother acknowledges that she suffered from post-natal depression after the birth of Z and Y in 2012, for a period of approximately twelve months, and that throughout the relationship she was vulnerable and had few emotional support networks. She also acknowledges that between June 2017 and October 2017 she suffered from emotional distress as a result of the father’s restriction of her time and communication with the children. The mother has demonstrated insight into her vulnerabilities from time to time and sought appropriate support.

2. Dr L undertook a psychiatric assessment of the mother on 18 April 2018 and did not consider the mother was suffering from a mental illness, although he noted a history of post-natal depression after the twins were born. Dr L also opined:

   With respect to the mother’s personality, … If the father’s account is to be believed that the mother exhibited significant features of emotional instability, as well as aggressive behaviour, albeit in the context of significant stressors. This may suggest the presence of personality vulnerabilities in the cluster B range. It would not be my view however, that even on the description of the father, that the mother would be exhibiting features of a Borderline Personality Disorder. The fact that the mother remained in a relationship with the father as characterised by herself, does suggest dependent features in her personality, although concurrent depressive illness, as well as her social situation may well have exacerbated this dependency.

3. Mr M prepared the family report in this matter and he did not observe any behaviour of the mother that caused him concern.

4. The mother has seen a psychologist, Mr N, on nine occasions during the period 9 August 2018 to 9 May 2019.

5. Mr N said that he had no concerns about the mother’s mental health. Specifically, he said that he had no concerns about her parenting. He felt she could be a bit hard on herself at times and, in his view, her difficulties were more about time management.

6. The father maintained throughout the trial that the children were being harmed by the mother. His cross-examination of the various experts suggests that he rejects their opinions that the mother does not suffer a mental illness or personality disorder.

7. The father persists in arguing that evidence suggesting the children were struggling emotionally at times was conclusive of the harm the mother was perpetrating upon them.

8. The father placed some importance on the summary of treatment reports produced by a play therapist, Ms R. The father accused the ICL of intentionally keeping important evidence from the Court. He submitted that the reports corroborate his allegations that the children are being harmed or are at risk of being harmed by the mother. The reports do not support the father’s contention. I will nevertheless provide some detail of the content of each report.

9. The children each attended upon Ms R and there is a report for each of the three children. Ms R suggests that by using play therapy, i.e. using toys, children work through emotional, behavioural, and psychological difficulties. The report also suggests that play therapy is a “relevant and beneficial form of treatment for children who have experienced trauma or suffer from childhood psychological disturbances such as low self-esteem, social and family adjustment issues, anxiety, depression, and aggression”.

10. In relation to Z, the report indicates that she has had twenty-one individual thirty minute play therapy sessions between 29 June 2018 and 1 March 2019 and that the reason for the initial referral from the E Group was because of regular nightmares, being fearful of the dark, being emotionally sensitive at home and in the classroom, and struggling to express her emotions when upset. Z displayed a range of emotions during her sessions from sad and withdrawn to happy and engaging. In her last session, she expressed emotions of happiness and sadness when leaving the playroom.

11. Y also had twenty-one individual thirty minute play therapy sessions over the same period. The reason for referral was the same as for Z. Y is described as confident, content, and happy throughout most sessions, although quite withdrawn and anxious initially.

12. X also attended twenty-one individual thirty minute play therapy sessions over the same period. The reason for referral is said to be because X was displaying “internalising behaviours such as being emotionally sensitive, withdrawn at school, finding it challenging to connect and make strong friendships with his peers, sleep issues such as nightmares, and occasionally having toileting accidents at school and at home”. X was reportedly also upset because he could not see his dog, who lived with the father, and could not understand why he was not seeing the father. It is interesting to note that X sought physical comfort from the mother directly after his third session, where he had presented as anxious and withdrawn. During the following sessions, X is observed to become more relaxed, calmer, and comfortable.

13. Ms R is complimentary of the mother’s commitment to the children’s therapy and raises no issues of concern.

14. Mr N has also seen X separately on six occasions during the period 10 October 2018 to 28 March 2019, and has conducted family sessions with all three children and the mother on 2 and 9 May 2019.

15. Mr N described X as quite sensitive and emotional at times but that he has generally engaged well during sessions. He noted that X is doing well at school but expressing some frustration about the situation of his parent’s separation. X does not understand why he is not seeing the father. In Mr N’s view, X is making progress in the sessions.

16. Mr N rejected the father’s suggestion that the children are suffering effects of trauma. He opined that children struggling as a result of parents’ separation is to be expected and that there was nothing unusual about the children appearing sad or withdrawn from time to time. He noted that, in the family sessions, the children present as “very happy and relaxed, and are generally well behaved, often showing a lot of affection towards [the mother]. … There have been no observable signs of abuse in sessions”. Mr N also rejected the father’s suggestion that a reference to “regression” in some of his written assessments for X indicated any particular cause for concern. Mr N opined that it was not uncommon for a client to see some regression during therapy and that the reference to regression in his notes just indicates that scores have moved away from where it is hoped the client will be moving. In any event, he said that there had been no significant regression.

17. All three children attend T School. X is now in grade three and the girls are in grade one. The most recent school reports for the children are from semester 2 in 2018. All of the children are reported to be progressing well at school and there are no issues of concern raised.

18. X is described as “a highly motivated and independent learner” with a “strong work ethic” who “contributes eagerly and intuitively in class discussions”. He is also described as being “respected by his peers and has a large circle of friends who enjoy his company and energy” and “is emerging as a confident and independent young learner”.

19. Z is described as “a happy and responsible student” who “is always considerate of the thoughts and feelings of others” and who “enjoys the social elements of the classroom”.

20. Y is described as “a happy and caring student” and as being “well-mannered” who “sets a superb example for others to follow”. She is said to “enjoy the social elements of the classroom and contributes to making our classroom a community of friends”.

21. There is no evidentiary basis for a finding that the children are at risk from the mother because of mental illness.

Is the mother emotionally, psychologically, or physically abusing the children?

1. The evidence and findings set out under the previous heading are also relevant to this issue.

2. The mother was observed with the children during the family report interviews in June 2018. Overall, Mr M, the family report writer, describes a positive interaction between the mother and the children, although he noted a degree of anxiety demonstrated by the mother. He says in his report:

   87. X seemed to share his mother’s anxiety, though whether because he sensed it and was responding to her or because he shared the same nervous disposition and mistrust of new situations is unclear. In contrast the girls presented as very relaxed and comfortable with their mother, the situation and myself. They were constantly smiling and laughed often.

   88. There was a degree of comfort in each other’s presence. The girls in particular would often look to their mother and demonstrate positive emotions and engagement such as smiles or laughs. They allowed their mother to enter their personal space freely and to touch them (for example hugs). X seemed more closed but he did allow his mother to sit very closely to him and engage with him, and he did not seem distressed or discomforted by this. 

3. As noted above, all of the children have been seen by Mr N in the presence of the mother and X has also been seen separately. Mr N raises no issues of concern about the mother causing any harm to the children.

4. Also as noted above, the children are all performing well at school and appear to be happy and settled in their environment. There are no issues of concern identified.  

5. Despite all of the above, I have no doubt that the children have suffered and are suffering emotionally from being deprived of a relationship with the father and paternal grandmother, but that is not of the mother’s making. It has arisen as a direct consequence of the father’s and paternal grandmother’s own conduct. The mother has taken appropriate steps to ensure that the children receive psychological support from appropriately qualified experts, although I consider that the mother should in future ensure that only one expert provides such support and/or coordinates any treatment.

6. Despite the father’s assertions, the evidence does not support a finding that the mother is abusing the children in any way.

Is the mother engaged in ongoing criminal activities?

1. It became apparent during the trial that the criminal activity alleged by the father against the mother is perjury. The father did not particularise his allegations against the mother and, even if the father had done so, it is not the primary task of this Court to determine such matters but rather to make an order that is in the best interests of the children in the given circumstances. 

Does the mother have the capacity to facilitate and encourage a relationship between the children and the father?

1. Given my other findings, this issue does not require determination. But if my findings supported the children having an ongoing relationship with the father and paternal grandmother, I am satisfied that the mother would comply with an order and seek appropriate support to assist her.

Does the father have the capacity to facilitate and encourage a relationship between the children and the mother?

1. The father has no capacity to do so. The video recording is but one example of his attempts to have the children side with him against the mother. The father did not demonstrate any capacity to reflect on his behaviour or accept responsibility for the unfortunate predicament in which the children now find themselves, namely, being deprived of a relationship with their father and grandmother.

Will the father comply with Court orders?

1. The father did not comply with the order made on 12 October 2017 to return the children to the mother that afternoon and to attend upon a family consultant the next day. He went into hiding with the children and subjected them to days of being on the run from police.

2. I reject the father’s evidence that he did not understand what was required of him by the order made on 12 October 2017. Not only was he present in court but in one of his many emails to Reverend K he said:

   I feared for the children’s safety, so I didn’t deliver them to court immediately, as requested, because the judge was lied to.

   This appears to be a fairly clear admission by the father that he made a conscious decision to contravene the order.

1. The father has also breached protection orders on many occasions (whether or not he has been sanctioned for those breaches). I reject his evidence that he did not understand what was required of him. The father, who has an impressive command and understanding of the English language, disingenuously suggests otherwise when the circumstances suit him. While the charges against the father may have been dropped, I am entitled to take into account the admissions by the father, namely, that there were “very light breaches of the DVO”. Whether the breaches were minor or not (and I do not necessarily accept that any breach of a protection order is minor), the fact remains that the father has an admitted history of not complying with orders.

2. The father has also repeatedly failed to comply with orders made for the preparation of this matter for trial by failing to file affidavits on time or at all and failing to produce recordings that he maintains were relevant to an issue in the proceedings.

3. Mr M, the family report writer, opined on this topic:

   I remain concerned about Mr Kabat’s capacity to comply with orders that the court would choose to make, if he views them as unfavourable. His previous disregard for the court’s authority was quite brazen. …

4. I agree with Mr M’s assessment.

Should an order be made for the paternal grandmother to spend time with the children?

1. It seems that the children had a close relationship with the paternal grandmother prior to 17 October 2017, although they did not share a common language. It is tragic for the children that they have been deprived of that relationship. However, that is of the father’s and paternal grandmother’s own making.

2. The children were with the paternal grandmother when the father and mother were before the Federal Circuit Court on 12 October 2017 and the father says that he told his mother about the order that was made. There is no evidence that she counselled the father to comply with the court order. The paternal grandmother slept in the car with the father and children on at least 15 October 2017. The paternal grandmother’s phone was used to book a hire car in her name when the father’s vehicle was abandoned. While the paternal grandmother was not present when the police found the father and children, she did nothing to assist police in their location.

3. The paternal grandmother is intent on promoting the father’s agenda, which is perhaps best demonstrated by two questions she asked the mother during cross-examination:

   Do you take full responsibility for emotionally hurting the children?

   And

   Aren’t you afraid that when the kids become adults and they realise what the truth was they are not going to be able to speak to you ever again?

4. The mother accepts that the children love the father and the paternal grandmother but she says they cannot be trusted. They will use the opportunity if they see or communicate with the children to blame the mother for the situation and undermine her relationship with the children. In my view, the mother is correct to think that.

what parenting order is proper?

1. Having already made findings that the father poses an unacceptable risk of harm to the children and that supervision cannot adequately protect the children, it remains to consider whether or not the father should be permitted to communicate in some way with the children.

2. It is not in contention that the children love the father and that they would like to maintain a relationship with him.

3. During the family report interviews in June 2018, X said he wanted to live with the father but, when pressed, said he could not decide. In Mr M’s assessment, X presents as immature for his age and has a limited understanding of the nature of the dispute between his parents. In his view, X provided “vacuous reasoning for his decisions, and often contradicts himself within his own reasoning. This [is] particularly true of his comments about which parent he would like to live with…”. Not unusually in such circumstances, and given his age, X expressed a desire for his parents to live together. It must be remembered that X was only seven years old at the time of the interviews and had experienced considerable upheaval in his life up to that point.

4. The girls told Mr M they liked living with the mother and also liked living with the father. The girls seemed to prefer an equal time arrangement between their parents. At the time of the interview with Mr M, they were five years old.

5. Given the children’s ages and lack of maturity, I can place little weight on their expressed wishes.

6. There is no doubt that it would be preferable for the father to be able to communicate in some way with the children. However, the vexed issue is whether the father would use any opportunity to involve the children in the dispute by telling them his version of the ‘truth’. The father’s version of the truth is that: the mother is mentally ill; she has harmed the children; she will harm them in the future; and it is the mother’s fault that the children do not see the father. The father is also completely fixated on his opinion that the mother has told many lies. He was unable to demonstrate any insight into the damage his behaviour has caused his children, or into the reason for the situation in which he now finds himself, i.e. not seeing his children. It is because of his own behaviour, not the mother’s so-called lies.

7. Mr M, the family report writer, said that the advantages of the father being able to send gifts and cards to the children are that the children at least know they have a father who cares for them and it keeps a connection.  The disadvantages are practical concerns such as difficulties the mother would have in managing receipt of gifts and cards e.g. she would have to monitor the content of communication which is likely to be upsetting, and if the gifts are expensive it might be used to “split” one parent against the other. Mr M also opined that intermittent communication may be confusing for the children. Another disadvantage, in my view, is that such intermittent contact may cause the children to be reminded of their loss and might detrimentally impact their relationship with the mother as they question why they do not see the father. Of course, the mother will have to inform the children at an appropriate time in an age appropriate way, but that will be at a time she considers they will be able to understand, not at a time they have just received a gift or letter from the father.

8. The outcome for the children could have been different if the father had ceased his obsessive behaviour and need to prove the mother to be a liar. The father’s conduct during the trial left me with no optimism that he has the inclination or capacity to change.

9. The parents have no capacity to make decisions jointly and given the order I propose to make, the mother will have sole parental responsibility and the children will continue to live with her.  

other matters

1. The mother sought an order to be able to obtain passports for the children. The mother has family in Country W. It is entirely reasonable for the mother to wish to travel to her home country to spend time with her family from time to time.

2. The mother also sought an order permitting her to formally change the children’s surname. It is conceded by the mother that she has not placed any evidence before the Court to support such an order.

3. I do not propose to make any order about the children’s names.

4. Given my findings about risk of harm, I propose to include personal protection orders for the mother as requested.

Conclusion

1. Like most cases dealt with in this Court, the circumstances are tragic for these three children. I have no doubt that they love the father dearly and miss him very much. I also accept that they had a close and loving relationship with the paternal grandmother and are likely to be missing her too.

2. Unfortunately for these children, it is not possible for them to have a relationship with the father or paternal grandmother. The father is unrelenting in his attack of the mother. He maintains that she is harming the children and he will not countenance any opposition to his view. The father presents an unacceptable risk of harm to the children and the paternal grandmother is so closely aligned to the father’s views that she too would be unable to see the children or communicate with them without involving them in the conflict and undermining their relationship with the mother.

I certify that the preceding one-hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 31 July 2019.

Associate: 

Date:  31 July 2019