Kafka & Anor and Fife

[2013] FamCA 954

FAMILY COURT OF AUSTRALIA

KAFKA AND ANOR & FIFE [2013] FamCA 954

FAMILY LAW – PARENTING – Proceedings to vary final orders made in 2005 – the father and paternal grandmother seeks to spend time with the children - Rice v Asplund (1979) FLC 90-725 - where there is sufficient evidence of significant change in circumstances – evidence that the father’s mental health has improved – supervised visits between the two youngest children and the paternal grandparents ceased in 2010

FAMILY LAW – CHILDREN – Best interests – injunctions - children to spend no time or communicate in any way with the father of the paternal grandmother – father and paternal grandparents restrained from enquiring of any person or entity about the address or any other related information about the children - the eldest child’s views are given considerable weight – although improved the father still has issues with mental health and drug abuse – the paternal grandmother does not acknowledge past family violence inflicted by her son and would not be protective of the children -  – the mother has a genuine fear of the father and security for her and the children needs to be maximised – where there has been family violence which has continuing impact on the mother and the children

Family Law Act 1975 (Cth) ss 60CC, 64B

Rice v Asplund (1979) FLC 90-725

FIRST APPLICANT: Mr Kafka

SECOND APPLICANT: Ms Kafka

RESPONDENT: Ms Fife

INDEPENDENT CHILDREN’S LAWYER: Harrington Family Law

FILE NUMBER: (P)BRC 5730 of 2011

DATE DELIVERED: 28 November 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Cleary J

HEARING DATES: 17 and 18 October 2013

REPRESENTATION

FIRST APPLICANT: In person

SECOND APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Selfridge

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Foley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Law

Orders

1. That all previous orders be discharged.

2. That the mother have sole parental responsibility for B born … 1998, C born … 1999 and D born … 2000 (“the children”).

3. That the children shall live with the mother.

4. That the father and the paternal grandmother shall spend no time with the children nor communicate with the children or any of them.

5. That the father and the paternal grandparents be restrained and an injunction is hereby granted restraining them , or any of them, from enquiring of any person or entity (including the children, any business or educational establishment or medical practice) as to:

   (a)the address of the children;

   (b)any information that would be reasonably likely to disclose or otherwise enable the father or paternal grandparents to identify the residence, medical practice or educational establishment pertaining to the children.

6. That the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: (P)BRC5730 of 2011

Mr Kafka

First Applicant

And

Ms Kafka

Second Applicant

And

Ms Fife

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction  

1. This is a dispute over proposed variation to final parenting orders made in this Court on 18 April 2005.  The dispute extends to whether there has been a sufficient change of circumstances to justify the Court revisiting Orders made after a contested hearing in 2005.

2. The first applicant is Mr Kafka (36).  The respondent is Ms Fife (32).  They are the parents of three teenage children, B (15), C (14) and D (13). 

3. The second applicant is Ms Kafka.  She is the paternal grandmother of the children.

4. The children have lived solely with their mother for the period of almost 13 years since the parties separated.

Short history

1. The parties began living together in November 1996 when the mother was 15 and the father 18.  During the four years of their de facto relationship the three children were born to them. 

2. The father has been diagnosed with schizophrenia.  He was almost certainly suffering from that illness at the time when the parties got together.  He inflicted cruel abuse on the mother and also on B and to a lesser extent, C.[1]  The effects of his mental illness were aggravated by his use of marijuana. 

   At the time that they lived together neither parent understood the mental illness of the father and the father had no insight into the impact on his family of his behaviour. It was undoubtedly a terrifying ordeal for the mother.

   [1]  Affidavit of Mother filed 05/2/2013, pars 29 – 31 and exerts from the affidavit of the Mother   filed 08/10/2003, pars 108–167.

3. In January 2001 the mother left the relationship with the children, all aged under three years.  She did so for their safety and her own.  The father now acknowledges that she was right to do so.

4. In April 2005 final orders were made in this Court after a contested hearing as follows:

   ·the children live with their mother;

   ·the mother have sole parental responsibility for them; 

   ·the children have no contact with their father.

   ·the paternal grandparents  have limited supervised contact with the two younger children; with their older brother to attend at the mother’s discretion.

5. Time between the girls and the extended paternal family did take place but ceased in around Easter 2010.  This was mainly as a result of unavailability in the Contact Centre and differences between the paternal family and Centre management.

6. Now, eight years on, the father and his mother assert that there has been sufficient change of circumstance to justify a revisiting of the orders.  In particular, orders sought are for supervised time for the father and paternal grandmother, exchange of letters, provision of gifts and Skype calls and provision of information.

7. The mother opposes the application.  She goes further and asks that those orders relating to supervised time with the paternal family, which have since become inoperative, are discharged.

8. The Independent Children’s Lawyer supported the change proposed by the mother.

The Evidence

Treating Psychiatrist for Father, Dr E

1. There were two reports by Dr E annexed to the father’s affidavits.[2]

   [2] Annexure ‘KZ 01’ to affidavit of Father filed 30/01/2012(report dated 20/06/2011) and Annexure               ‘ZK 02’ to affidavit of Father filed 12/02/2013 (report dated 05/02/2013)

2. The doctor was made available for cross examination.

3. Dr E has been the father’s treating Psychiatrist since 4 August 2002.  The father was referred to the doctor by his general practitioner.  Dr E says, and I accept that:

   Following his unsuccessful attempt to win access to his children in the Family Court of Australia in 2005, I was able to convince him to fully comply with his treatment.  Consequently over the last six years he has been continuously taking anti-psychotic medication as prescribed.

4. The doctor noted the vast improvement in the father’s clinical condition as a result of his compliance with medication.  In the witness box the doctor said that he believed the father had more insight and acceptance of the need for lifetime medication and that he has taken the doctor’s recommendation to stop using cannabis since the beginning of 2013.

5. I had the impression that the doctor has a strong professional relationship with the father and that the father trusts him.  The doctor readily accepted that the father may not have been entirely forthcoming with him about his ongoing use of marijuana.  Further, I had the impression that the father accepted that the doctor’s view was that the father may have some personality issues arising from violence and abuse in his own childhood, but that his main focus was on managing the mental illness schizophrenia.

6. The doctor was easily able to give this direct and forthright answer about drug use directly to the father during  re-examination: 

   You probably haven’t been entirely honest about your marijuana use. 

7. Dr E readily conceded that his view that the father could safely have supervised contact with his children, was based entirely on his knowledge of his own patient.  The doctor unreservedly accepted that what was in the best interests of the children was a matter for the Court.

8. I have no doubt that the father has been greatly assisted in improving his mental health through the supervision and treatment of Dr E.

Dr F, Single Expert  

1. Dr F relied upon his affidavit filed 26 February 2013 which annexed his report.

2. I was assisted by the written assessment by Dr F of the two parents and by his oral evidence.  The doctor was present in the Court room when Dr E was giving evidence and expressed the view, with which I agree, that the treatment relationship between the father and Dr E is a good one. 

3. In his assessment of the father, Dr F diagnosed an “ongoing mild degree of formal thought disorder, which might also suggest some residual disorganisation in behaviour”.[3]  He noted the father’s improvement in health and recommended that the father continue to seek treatment from his treating psychiatrist and to comply with recommendations.

   [3]  Affidavit of Dr D F filed 26/02/2013, p 25 of 34

4. He further recommended in his report that the father cease totally his use of marijuana, noting that if the Court were to decide that the father should have contact with the children, the doctor would strongly recommend frequent random urine drug screens be required. Further that evidence of ongoing use of marijuana should lead to the cessation of all contact. 

5. The latter recommendation has significance. Ongoing drug testing would have been problematic logistically.  However the father has in fact continued to use marijuana and to conceal the extent of use from his treating psychiatrist. I take into account the weight attributed by Dr F to this ongoing use.

6. The doctor’s assessment of the mother was that her insight and judgment appeared reasonable and that she had experienced depression and symptoms of anxiety  in the context of the Court process.  In fact, a major depression in the context of the last Court hearing for which she received treatment. 

7. Dr F noted the mother’s resilience in terms of her own achievements in education and employment and her anxiety about the children’s welfare. 

8. The doctor made this important observation: 

   I suspect the mother remains vulnerable to relapse in the setting of considerable stress, such as the current Court proceedings and there are some indications that she is having some mild symptoms of anxiety and major depression that could perhaps be better described as an adjustment disorder at this stage. 

9. The doctor recommended that the mother seek a referral from her GP to a qualified mental health practitioner to assist her with the emotional turmoil inherent in the Family Court process and in particular her past, rekindling her fears about contact with the father.[4]

   [4]  Affidavit of Dr F filed 26/02/2013, p 33 of 34

10. Dr F was able to provide information to the father, who cross-examined him in person, in a most helpful way: 

    Q:       Could I see the children? 

    A:I don’t think you’re a physical threat.  The children may come to          emotional harm because you have symptoms.  Your symptoms may be difficult for children and their mother is the primary carer.  If she becomes symptomatic then that could cause emotional harm.

11. Dr F was clear to draw a line and establish that he had no psychiatric expertise in treating children.  He was clear to say that any time between the father and the children would need to be supervised and that if the father continued to use marijuana, his risk of becoming psychotic increased, and time should not take place.

Ms G, Family Consultant

1. In her report dated 1 June 2012, Ms G made a recommendation in her report in clear terms: 

   The benefit of the children re-establishing a relationship with their father and paternal grandparents is outweighed by the significant risks to their ongoing physical and emotional safety and development.  In light of this is respectfully recommended that the children have no contact or communication with their father or paternal grandparents.

2. Ms G did not resile from this recommendation. 

3. Ms G’s central concern was that the father did not possess insight into his mental illness, or his likely impact on his children. 

4. In relation to the paternal grandparents, Ms G was concerned that they are entirely supportive to their son to the extent that they do not perceive that his marijuana use is problematic, or that there could be any emotional damage for their grandchildren in being reunited with their father.

5. Statements by both paternal grandparents to Ms G, that they believed that “the Court got it wrong in 2005” is of concern.  I note also that Ms G’s strong impression was that the paternal grandparents believed that their son’s application was motivated by his desire to reunite with the mother.

6. The father denied that proposition in the witness box.  However on his own evidence, he had wished to restore a platonic relationship with the mother “for the benefit of the children.”  I share Ms G’s view that the father minimises past violence perpetrated by him on the mother, particularly that he minimises its ongoing effect.

7. Ms G gave informative evidence about the children; young as they were prior to separation, would likely have memory of the event that they saw, particularly violent attacks on their mother by their father.  She said this:

   It pre-verbal so they don’t have the ability to put the experiences into words.  The triggers (for those memories) are sounds, words, smells and images.

8. This is significant evidence about the potential for adverse effects on the development of the children from exposure to triggers for past traumatic events.

9. Ms G also noted in the case of B, that the relationship between the parents being chaotic and dangerous, could have meant that the mother was less available to B, so there could have been attachment issues for him at that time.

10. I take this to mean that he has been a more vulnerable child for that reason.

The Applicant Father, Mr Kafka

1. The father relied on three affidavits as follows:

   a)      affidavit filed 30 January 2012;

   b)      affidavit filed 12 February 2013; and

   c)      affidavit filed 17 October 2013.

2. The father represented himself and also assisted the Court in relation to the position of his mother through cross examination and in submissions.

3. The father lives with his parents in the family home in Brisbane. He receives a Disability Pension and some financial assistance from his parents.

4. In his first affidavit the father expressed a wish to develop and build a working and practical relationship with the mother. He expressed a hope that the mother would attend his family home during visits with the children, so the children would feel more comfortable.  The father referred to re-establishing contact with the mother to “carry on a platonic relationship for the sole purpose of our three children”.[5]

   [5]  Affidavit of Father filed 30/01/2012, par 28

5. After the release in June 2012 of the family report by Ms G, the father changed his position somewhat.  In his second affidavit he denied having made an application to the Court in order to reunite with the mother. He asserted that he accepted “[Ms Fife] and I cannot have a relationship”.[6]

   [6]  Affidavit of Father filed 12/02/2013, par 32

6. On the morning of the hearing, in his final affidavit, the father referred to “resuming supervised contact with the children with the possibility of gradually increasing the contact overtime”.[7] 

   [7] Affidavit of Father filed 17/10/2013, par 13

7. The father’s wish to re-establish a working relationship with the mother, in combination with some express remorse, is a positive approach.  However there is no realistic basis for the father to believe that the mother would ever wish to be engaged in that way.  He knows that he injured her, that she fears him and that she has good reason to do so.  She has never contacted him since separation.

8. The father, it seems to me, has grossly underestimated, the lasting adverse impact he has had on the mother. 

9. He appears to have allowed himself to think that all that was needed was for him to make progress was to improve his mental health. In submissions he expressed the hope that the mother could forgive him. The father has not understood that the state of mind and psychological health of the mother is in no way linked to his progress or otherwise. Those two matters are independent considerations.

Drug use

1. In September 2013 the Independent Children’s Lawyer directed that the father undergo a drug test. This was a second random test. The first test was negative for the presence of any drug. The father failed to undergo the test. He asserted that he was not notified of the test. I do not accept that is the case. The evidence suggests otherwise.[8]

   [8] Annexure “MT2” to the Affidavit of Matthew Winter Taylor Lawyer filed 09/10/2013

2. There is an available inference that the test would not have supported the father’s assertion that he is free of his addiction to marijuana. 

3. The father of his own motion arranged to undergo a test on 15 October 2013. The test result was annexed to his third affidavit.  Even if the test had been a valid one, it could be given no weight, given that the father arranged his own timing a month after the request.

4. However, in fact the test was not in compliance with the Australian New Zealand Standard.  The temperature of the specimen did not register at the time, with the available inference that the sample was not contemporaneously provided, and a further test was recommended by the testing laboratory.[9]

   [9] Annexure to Affidavit of Father filed 17/10/2013, Urine Drug Analysis

5. I have the impression that the father made strenuous efforts to improve his mental health with the goal of establishing relationships with his children.  He has developed some insight into the reality of having a mental illness, although may still not understand the effect that it has on him and the people around him.  He has reduced his dependence on marijuana, but not eliminated it, with ongoing risks of inducing psychosis.  The father has not taken that consequence as seriously as he should have.

6. The efforts the father has made are commendable.  The deficiencies in his insight and function are factual findings and not a matter for criticism.

7. The significance is that the father represents a risk to the children of asking inappropriate questions and having unrealistic expectations of their reactions to him.  Of even greater significance is for the potential for the mother to be destabilised as a parent if the father is re-introduced into the lives of the children to any extent.

8. In her most recent affidavit the mother gave evidence about an incident which has severely disrupted the family.[10]   On 3 August the children had entered an art competition and as part of that competition they were invited to submit their art work to an Art Gallery.  The children used alias names on the art work at the gallery.

   [10]  Affidavit of Mother  sworn 17/10/2013, pars 7-19

9. On 4 September 2013 B received an email from the curator of the gallery with respect to his art work.  A person had expressed interest, the person’s name being Filip Alexander with a stated phone number.  This person had apparently offered $3,800 for the art work.  The curator of the gallery became concerned because of the amount of money offered and the rarity of student’s art work being purchased at all.  The curator of the gallery contacted the school.  The interested purchaser was described as a tall, dark and very slender man.

10. The mother became concerned that the description and the name pointed to the father being involved in this offer.  The mother became immensely concerned for the safety of herself and the children.  She contacted the police and subsequently moved the children into a new school and moved the family into a different residence.

1. Counsel for the Independent Children’s Lawyer asked the father some relevant questions.  The father was asked what he knew about Alexander the Great.  The father was rather dismissive in response. He stated that he had come to Australia at age five, that he was more Australian than Country H and what was being asked about was a matter from history thousands of years ago.  When pressed with the question, “Who is Filip Alexander?”, the father’s response was spontaneous and heartfelt, “He is the greatest King in the history of the world, the father of Alexander the Great.” 

2. The father denied all knowledge of the art work and being the person interested in purchasing it, but the evidence and the father’s responses does give rise to concern. 

3. Most significantly when the mother herself felt that concern, she acted swiftly and comprehensively to protect the children.  It is a very clear indicator of the level of fear at which the mother operates in relation to the father.

4. Overall, I was left with the impression that the father believes it is unfair to him that he is unable to see the children because of violence perpetrated by him on the mother and the children 13 years ago and more.  He is unable and/or unwilling to contemplate what this Court accepts, that the events which took place in the relationship traumatised the mother, sensitised her permanently and that although she manages her life very effectively, the events of the relationship are as fresh for her as if they had just happened.

5. Further there was still a note of blame in the father’s evidence.  For instance, when being asked about incidents of serious violence where the mother was punched, kicked, had her cheekbone fractured, her upper lip split and a knife held to her throat,[11] the father said this: 

   I never did anything until she did something.  There’s no excuse for it, I take full responsibility. 

   It is an equivocal response.

   And again:

   I was guilty mate, I was guilty, I regret what I did, I take full responsibility.  I was in the hospital.  You’re trying to put the blame on me, it takes two to tango sir.

   [11] Affidavit of the mother filed 05/02/2013, pars 29-30

6. In my view there is some basis for the mother’s fear that the father is a current risk to her and the children, in addition to the separate issue of her traumatised response to past events.

The Second Applicant Paternal Grandmother, Ms Kafka

1. Mrs Kafka relied upon the following documents:

   a)      affidavit filed 30 January 2012;  and

   b)      affidavit filed 12 February 2013.

2. Mrs Kafka was assisted by a Country H interpreter.

3. Mrs Kafka asked a question of the Family Consultant Ms G which illustrated her thinking.  She said this: 

   Everyone says we’re dangerous but we have a 17 year old grandchild.  These children should know their cousins.

4. This statement reflected the tenor of all of Mrs Kafka’s evidence, both in her affidavits and her oral evidence. 

5. She has been quite understandably distressed that she has lost contact with her son’s three children.  She has not seen her grandson B since he was two years old.  She did see C and D for supervised monthly visits at a contact centre over a period of about four years.  However, the centre gradually withdrew from ongoing support for the family through needing to give support to new and more urgent situations.  The last contact was at Easter in 2010.

6. Mrs Kafka was defensive of her son, particularly of his use of marijuana, although she agreed that he had previously lied to her about the extent of his use.  Inconsistently, she denied telling the Family Consultant that she thought the father was using marijuana once a week and accused the Family Consultant of manipulating her words.

7. It seems Mrs Kafka had not read the family report.  She denied that her son was keen to reunite with the children’s mother, although grudgingly acknowledged that she had told the family reporter that he did wish to see her.

8. Importantly the paternal grandmother denied violence by her son directed at the mother, “In our home nothing bad happened.”  She agreed that for the first time in these proceedings she had heard some evidence of the extreme violence that her son had visited on the mother, “I heard those things I’ve never even heard about.”  However Mrs Kafka then went straight on to say, “He’s been punished for 12 years for it”.

9. Mrs Kafka was also challenged over the father’s evidence that his own father had punished him harshly and had forced him to drink alcohol as a four year old.  Mrs Kafka’s answers were illuminating.  First she said that children like alcohol and “they can try it in [Country H]”.  When pressed over the fact that the father was four when this was happening, her response was, “We’re here for the children, that’s all been judged”.

10. Mrs Kafka’s strong view was that whatever had happened in the past was now irrelevant, both in her own household and in the father’s relationship with the mother.  I have no doubt she has had some very difficult issues to confront within her own family over the years and that the solution for her has been to work hard and try not to think about those issues of violence and emotional distress.

11. Mrs Kafka confirmed in the witness box what had been observed by Ms G:

    Q:       You think the Court was wrong (the 2005 orders)?

    A:       They should not have separated the children from their father.              The court did wrong then.

12. I also consider that Mrs Kafka’s motivation in seeing the children is to ultimately reunite her whole family, most particularly the children with their father and that if they were not to see their father, she would be unable to sustain the restoration of short supervised visits.

The Respondent Mother-Ms Fife

1. The mother relied upon the following documents:

   a)      affidavit filed 5 February 2013;  and

   b)      affidavit filed 17 October 2013.

2. This second Family Court hearing has imposed its own difficulties on the mother, reactivating for her the memories of the first hearing, which had stirred up her emotional responses to events in her relationship with the father.

3. Her resilience referred to by Dr F, is reflected in the healthy development of the children.  Their school reports have been good; they are happy, engaged children.

4. The mother gave compelling evidence of her fear.  In answer to the father’s question:  “Is it your firm belief that I’m trying to track you down”, the mother said “Yes.”  In a clear but halting voice, with evident distress , the mother repeated a threat which I accept the father made at separation: 

   If you do not come back to me within seven days, I will kill you and your children. 

5. The mother said it was that threat that has made her fearful ever since.  The mother asserted that the father always said what he was going to do to her before he did it. For that reason she believed him.

6. The mother went on to say:

   I’m doing all that I can to live a life that is peaceful so we can live.  That’s all we want. 

   Directly to the father she said this: 

   So my fear is you will kill us.

7. I accept that the mother genuinely holds that fear.

8. The father made the statement to the mother that he was happy for there to be no contact, but that he’d like to know what was being done for the children.  The mother responded by providing him with information as follows: 

   They are clever and happy.  They try hard at school.  They have lots of skills.  They have a stable, secure and attentive home.  They are great kids and normal. 

   With [B], he’s had so many trip ups because of what you did to him.  Your duty of responsibility is to let that continue without interruption; by letting them live; by stepping back you’ll help them.

9. The father put questions on behalf of his mother that contact between the children and his parents was in a different category.  The mother responded that the children had felt stressed and tired with the supervised visits and that it had become hard work for them.

10. The father asked about the benefit of contact for the children with their cousins.  The mother answered thoughtfully that it was “really tricky” and that she had nothing against the cousins, although one of them had said to D, “You’re dad gets drunk all the time;  it’s scary when he’s drunk.”  The mother was clearly sorry that the children had heard such a statement at all.

11. I came to the firm conclusion that the mother is a woman of courage, who has devoted herself to the care and safety of her children, but has lived with an ongoing fear which rises and falls, depending on triggering events, of a violent even fatal attack on her and the children by the father. 

12. She seeks help when she needs it, but otherwise gets on with the business of mothering.  She has withstood this second set of proceedings, probably at a cost which may reveal itself in emotional distress after the conclusion of the proceedings.  Her plea for stability was heard by the father and he acknowledged in submissions his own belief that the mother feared that he would hurt her again.

13. I am satisfied having heard the evidence of the mother, that her emotional stability is put at risk, both by her fear of the father’s future actions and by litigation which brings her into contact with the father and has required her to be reinterviewed about matters which she has tried to get into perspective over the last 13 years.

The law

1. By the close of evidence I was satisfied that there had been a sufficient change of circumstances to justify revisiting the final orders made in 2005.[12] The mental health of the father had improved. The supervised visits between the two younger children and their grandparents had come to an end. After eight years there was sufficient evidence to hear further parenting applications.

   [12] Rice v Asplund (1979) FLC 90-725

2. When the Court is asked to make a parenting order, s 64B of the Family Law Act, in deciding whether to make a particular parenting order about a child, the Court must regard the best interests of the child as the paramount consideration.

3. The Court must also presume that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. In this case, there are findings made in prior proceedings that the father engaged in abuse of the mother and the two older children.

5. The mother was still sufficiently traumatised by the violence inflicted on her during the relationship that participating in the hearing in this Court in 2005 caused a deterioration in her own mental health, such that she suffered an episode of depression and anxiety, for which she obtained treatment.

6. The presumption of equal shared parental responsibility is easily rebutted in those circumstances. 

7. Indeed the father does not seek an order for the allocation of any parental responsibility to himself. Nor does he challenge residence with the mother .This was a realistic position for the father to take.

8. The real issue is whether there should now be provision in fresh orders for time and communication between the children and their father and paternal grandmother.

9. An express object of the Family Law Act is that children should have a meaningful relationship with both of their parents to the maximum extent consistent with their best interests.

10. In determining what is in the best interests of these children the Court must consider the factors in s 60CC of the Act.

11. I turn to that section now.

Section 60CC(2)(a) - the benefit to the children of having a meaningful relationship with both of their parents

1. The children do not have a relationship with their father at this time.  They last spent time with him prior to January 2001 and have otherwise only seen him briefly for the preparation of family reports prior to the hearing in 2005.

2. The children do have a meaningful relationship with their mother.  She is their main source of stability and support.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

1. This section of the Act is directly relevant.  B did suffer physical and psychological harm from his father’s harsh treatment of him in the first two years of his life including the father forcing him to inhale marijuana on more than one occasion.  C was also exposed to the forced use of marijuana.

2. All three children were also exposed to family violence, having observed their mother being struck and on occasions beaten severely by their father.  On his own admission, the father blamed the mother for all that was negative in their relationship and “punished her” accordingly. 

3. At least to some extent, the father was in the grip of mental illness when he abused the mother in this way. I note the mother’s evidence is that the father did not want her to take B out where people could look at him as the father believed that other people could influence the child in evil ways, or put curses on him, or control his thought processes just by looking at him.[13]

   Mental illness is probably not the complete explanation for the violence of the father. On his own evidence he was exposed to family violence and alcohol abuse growing up in his family of origin.

   [13]  Affidavit of Mother filed 08/10/2003, par 135

4. At times in their very early years, the children were deprived of food due to the father gambling and losing family funds.  In the case of B, the expert evidence is that he is likely to retain memories of those events. Reference to his father provokes anxiety in him.  C and D may also retain such memories, but apparently with less significant ongoing effects.

5. The children have had minimal contact with their father since the parent’s separation, and only in the context of court proceedings. 

6. The evidence before me is that the father’s mental health has undoubtedly improved although he is still somewhat symptomatic.

7. The evidence of his own psychiatrist and of the single expert establish that improvement.  After the last Court hearing Dr E was able to convince the father that there was a long term need for strict compliance with his medication. 

8. I accept that the father no longer poses the same level of risk, as he once did, of direct physical harm to the children. However there is still risk. The father continues to use cannabis although he is well advised of the potential of that drug to aggravate his mental illness. Further he has not been candid with his psychiatrist about his level of use.

9. There is still a need to protect the children.  Supervision would be necessary in these circumstances even for teenage children.

10. Significantly the mother continues to be affected by past family violence.  I find that she is still fearful for herself and the children at a very high level of fear. The threat made by the father long ago to kill her and the children continues to influence her own mental health and decision making.  That fear is reactivated by Court proceedings and presumably by physical proximity to the father in the court room.  That was my observation.

11. Psychological harm is highly likely to flow on to the children from their mother’s reaction to a restoration of relationships between themselves and their father.  There is an unacceptable risk to them of their mother becoming less available to them or having impaired capacity to meet their needs each day

12. I also take into account the following considerations.

Section 60CC(3)(a) - any views expressed by the children and any factors that the Court thinks are relevant to the weight it should give to the children’s views

1. B at 15 has consistently expressed a wish not to see his father at all.  B has suffered anxiety intermittently for most of his life.  As the oldest child he had the longest exposure to violence in the household when his parents lived together.  He reacted with fear and regressed development after an encounter with his father at a family report interview in 2004.[14]

   [14]  Affidavit of Mother sworn 05/02/2013, par 38

2. B has been assisted by regular counselling and adherence to routines.  He is presently doing well.  He has had no wish to see his father, quite the reverse.  He feels angry about the impact of his father on his life and that of his family.

3. In mid 2012 he reported to the Family Consultant, Ms G:

   If he was forced to spend time with him [the father] [B] told me he would punch his father.[15]

   [15]  Family Report dated 01/06//2012, par 54

4. B is reported by the mother to have a strong wish not to spend time with the paternal grandparents.  The mother exercised the discretion provided to her by the 2005 orders and permitted B not to attend those supervised visits. 

5. B has two more years at high school.  He has again, most unfortunately, had a change of school as a result of a fear of the mother’s that the father was tracking him through a public display of his artwork.[16]  I give significant weight to his strongly held view that he does not wish to have any association with his father or their family.

   [16]  Affidavit of Mother sworn 17/10/2013, pars 3 and 7-19 inclusive

6. C is aged 14.  C’s only independent memory of her father was at a supervised visit, when he tried to give the children a mobile phone which included his details.  He also asked for their telephone number.  C knows that their mother is frightened about their father resuming contact with them and has had some limited information given to her by the mother about the reasons for her fears.

7. C’s main concern is for her mother’s position.  If her father re-entered their lives, C is reported to be worried about her mother, “She’ll worry about us.”  She expressed a curiosity about her father:

   A part of me wants to meet him [her father].  Because of what mum told me I’m frightened of him.[17] 

   [17]  Family Report dated 01/06/2012, par 59

8. C was open to visiting her paternal grandparents, but not in their home. 

9. C’s views express her lack of knowledge or memory of her father and her natural interest to see for herself what he is like.  She is also conscious of the potential impact on her mother of the restoration of relationships. C is   interested to meet her father but her priority is her immediate family, her mother, brother and sister.

10. D, aged 13, has been affected by her innocent response to a question from her father at an interview in 2005.  She told him where her brother and sister went to school.  The consequence of that disclosure was a change of schools for B and C.  D has an ongoing sense of responsibility and self-blame for that situation.

11. D too has a memory of her father at a supervised visit with her brother and sister, where the father gave them a phone with his details, as well as a tennis racquet and tennis balls.  She too expressed a little bit of curiosity about her father:

    I want a dad around but a good dad who is not harmful that gambles, does drugs and hurts mum.[18]

    [18]  Family Report dated 01/06/2012, par 63

12. D said she would only consider meeting her father if he was well.  She too wishes to form her own point of view, based on her own feelings about her father.  She would want any such meeting to be properly supervised and to thereafter have control over whether there were to be any more visits, “I’d like to be able to say if I don’t want to see him anymore or see him a bit more”.

13. D was quite confident that her mother would support her to build a relationship with her father if that is what she wanted.  She also knew that her mother was nervous about such meetings. 

14. D does not want to have contact with her paternal grandparents.  She was uncomfortable about an incident at the Contact Centre where her paternal grandfather had “told her to take her top off so she could try on the top they had brought her.”  She also was worried when the grandparents asked for a family portrait; worried that her father would use such a portrait photo to find them.

15. D expressed herself to be “kind of happy with how my life is now.”  She particularly had felt the instability of “B and his illness, mum and her job, moving”. 

16. In mid-2012 during interview for the family report, D said she was keen not to have the “boat rocked” in relation to her family.  She is likely to be really impatient with any more disruption given the recent upheaval of a change of school.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons

1. The children have a strong loving bond with their mother, each other and the extended maternal family.  They do not have any relationship with their father.

2. I have no doubt that the father, most particularly since his health stabilised in 2005/2006, has very much wanted to be a part of the children’s lives, to learn about their progress and to participate in decision making.  He has been restrained by orders from doing so in the best interests of the children.

3. C, alone of the three children, has a positive, if somewhat vague memory of her paternal grandparents.  However, although there were supervised visits between C, D and the paternal family, I have the impression that they became friendly strangers because relationships did not have the opportunity to develop in the artificial setting of short supervised visits in a Centre.

Section 60CC(3)(c) - the extent to which each of the children’s parents has taken the opportunity to participate in long term decisions

1. The mother has had the sole responsibility for all long term decision making and financial support.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

1. This is a significant matter.  The children have thrived in the care of their mother with the support of the extended maternal family, who went so far as to move house in order to support the mother’s need to keep the children safe and private.

2. The children have again changed schools very recently, as a result of the mother’s concerns that the father was attempting to find where the children lived and knew where they went to school.

3. Organised visits on a supervised basis are quite problematic.  The children as young and middle aged teenagers are too old to comfortably be accommodated in Contact Centres, which work best for young and primary age children. 

4. To again establish a regime of short supervised monthly visits, could easily become a source of resentment for the children who are increasingly developing their own independent interests outside of school and their own friendships and other relationships, which would naturally take priority in their lives.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with a parent

1. Leaving aside physical safety it would be very difficult on a practical level for the children to develop relationships with their father and grandmother.  They know they cannot divulge information about their lives, where they live, where they go to school their special interests and friendships. There would quite literally be nothing to talk about. Photographs are highly problematic.

2. All of the children must know of the strange circumstance of the anonymous offer of a huge sum of money by “Filip Alexander” for a painting of B’s in a school exhibition.

3. The visits in any setting would be strained and awkward.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children

1. The mother has a demonstrated capacity to meet all of the children’s needs.  She has clearly been able to communicate to the children that their father’s mental illness is responsible for at least a part of the difficulties that she and they have experienced.  

2. The fact that the two girls have an interest in knowing who their father is and have particularly in C’s case, positive feelings about the paternal grandparents, is strong evidence that the mother has not, in any way, influenced the children against the paternal family.

3. The father continues to suffer from mental illness.  In particular, his own psychiatrist Dr E and the single expert appointed by the Court, both note that he is less symptomatic and now managing his illness much more effectively.  Dr F said this:[19] 

   It appears that in more recent years he has made considerable improvements in terms of managing his illness.  It appears that his delusional system has essentially ceased, but he continues to exhibit some odd beliefs, as well as evidence of more mild or subtle formal thought disorder.  I also suspect that he has significant negative symptoms, which is consistent with schizophrenia, namely difficulties with motivation and difficulties with abstract thinking and planning.

   [19]  Report of Dr F, p 32 of 34 conclusions

4. The father’s capacity is also affected by his use of marijuana.  This is significant in two ways.  First of all, that he is using marijuana at a level which I cannot be certain about.  He has told different people very different stories about that use.  For instance, he told the Family Consultant in 2012 that it was four years since he had used marijuana at all.  His own parents told Dr F that he was using marijuana weekly and the father told Dr F that he had ceased all marijuana use before February 2013. 

5. The father failed to undertake a random test directed by the Independent Children’s Lawyer. The test he arranged for himself a month later did not comply with the Australian standards.

6. The father admitted in the witness box that he had lied to the Family Consultant in order to prevail in his wish to start spending time with the children.  The consequences of the father lying are the usual ones; that it makes it difficult to have faith in any evidence that he gave.  The consequence of the marijuana use is, and again I quote from Dr F:

   … can exacerbate psychotic symptoms in vulnerable individuals, especially in people suffering from schizophrenia.

7. I accept that Dr E has repeatedly told the father that he should cease using marijuana because of the real risk of it provoking psychosis.  Exposure of the children to the father in a psychotic state to the smallest extent would be extremely damaging for them at the time and for the mother when she learned of it. 

8. I note that overall, although the father has made an impressive improvement with the management of his mental health and is much less symptomatic, he is still ill and is vulnerable to using marijuana.  He therefore has a limited capacity to meet the needs of the children at this time.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

1. The children are one boy and two girls of teenage years.  Their father was born in Country H and came to Australia as a young child.  The extended paternal family is Country H and Country H speaking.  There is a wealth of language and culture to which the children to do not presently have access.

2. The mother was born in Country I and came to Australia as a young child with her family.  Her parents were members of Christian denomination before they left that community and came to Australia. 

3. The children all have an interest in music and are strong academic achievers.  This is a particular credit to the mother who has devoted herself to their education and personal development.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. The mother first became a mother at age 16.  She had three children in quick succession and endured a violent and frightening relationship.  She has since achieved tertiary education and stable employment. She has been financially responsible for the children for 13 years.  She has sacrificed her own young adulthood to the obligations of parenthood with a most positive outcome for the three children.

2. The father has more recently come to understand a perspective other than his own.  He now wishes to give the mother money towards the support of the children, but in my view that is directed to encouraging belief in his interest in them.

3. I am not convinced that the father understands the sacrifice the mother has made to provide adequately for the children alone.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

1. There has been family violence to which all the children were exposed in their infancy. 

Section 60CC(3)(k) - any family violence order that applies to the children or a member of the children’s family

1. The current Court orders have been sufficient for the mother to make decisions appropriately to keep the children well protected.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings

1. If orders were made at this time for a restitution of supervised time between the children and their paternal family, and particularly if orders were made for time and communication between the children and their father, it is in my view highly likely that the arrangement would break down fairly quickly.  This is so because of the age of the children.  Contact Centres are unsuitable and there is no one put forward as a supervisor.  It could hardly be otherwise.  The two extended families have no contact quite deliberately and there is no one from the father’s family who the mother would feel confident in as a supervisor.

2. The evidence of the paternal grandmother is her hope that there would be easy unsupervised time in her family home.  The children themselves do not want that and the mother is genuinely anxious at the thought of such exposure to the father. 

3. The evidence of the paternal grandmother was that in her view her son had been a good husband to the mother and that there had been no violence in that relationship.  Further, her evidence suggested to me that even if there had been violence her attitude is “that was then and this is now”.

4. I consider it would be impossible for her to be appropriately protective of the children.   Her clear priority is to her son and to reuniting his children with him.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. The thought of restoring relationships with his children appears to have been a strong motivating factor for the father to maintain better mental health and to reduce his use of marijuana.  He has continued to consult his psychiatrist, Dr E, with whom he has a strong positive professional relationship.  He has continued to live in the family home and has undertaken some limited paid employment from time to time. 

2. His situation is altogether better than it was at the time he was living with the mother.  However he continues to be ill.  His parents continue to be hopeful that he will return to full health.

3. To be able to see and develop relationships with his children would undoubtedly be positive for the father, it would continue to give him a motivation to be a healthy person engaged in the community.  If he is unable to achieve that, it may well reduce his motivation to continue with treatment.

4. At aged 36 he is a relatively young man.  A second relationship, a marriage with a Country H woman, failed in unhappy circumstances.  The thought of his children growing up without him has been both a cause of sadness and a source of motivation to change.

5. However the mother is the source of stability and support for the children.  She has done a magnificent job of raising them successfully.  To his credit the father acknowledged that fact in his submissions.  

6. B has suffered from anxiety which has been appropriately treated.  C has a need for order and routines, but is not anxious.  D is doing well, although she continues to blame herself over the first change of schools for her siblings.

7. All of the children love their mother and understand that she has suffered at the hands of the father and that she does not want that to happen to them.  It is in their best interests that the stability of their family life be protected.

8. Accordingly in considering all of these factors, I consider that the best interests of the children are promoted by allowing them to continue with the current arrangement, giving the mother sole parental responsibility, with no provision by way of order for any time between the children and their paternal family.

9. Further in those circumstances there is no benefit to the children in anonymised school and medical reports continuing to be provided. Indeed there is a need to maximise security around the children their residence and school.  I take into account the strange incident involving Filip Alexander in coming to this decision.

10. In due course, as they become adults themselves, one or more of the children may seek out the father and his family.  That may or may not lead to ongoing relationships.  As young adults that will be a matter for each of them.

11. Orders are made in accordance with the mother’s application.  For clarity and the benefit to the children of one set of operative orders I have discharged the earlier orders to do so.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 November 2013.

Associate: 

Date:  28 November 2013.