Kinsley and Kinsley
[2017] FCCA 2518
•21 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KINSLEY & KINSLEY | [2017] FCCA 2518 |
| Catchwords: FAMILY LAW – Parenting – whether Father has unresolved mental health issues which present risk of psychological harm to the children – where Father does not accept there is an issue to be addressed – where recognition contact ordered. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS KINSLEY |
| Respondent: | MR KINSLEY |
| File Number: | WOC 592 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 20 – 22 September 2017 |
| Date of Last Submission: | 2 October 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 21 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Access Law Group |
| The Respondent appeared in person and was self represented |
| Counsel for the Independent Children's Lawyer: | Ms McIntosh |
| Solicitors for the Independent Children's Lawyer: | JPM Legal |
ORDERS
All previous orders in these proceedings are hereby discharged.
The Mother have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2011 (the children).
The children live with the Mother.
The children spend supervised time with the Father on four occasions each year, at such times and days as agreed to between the parties or otherwise, failing agreement, the first Saturday each February, May, August and November, for a period of not less than 2 hours, and on each occasion, such time shall be supervised by and at a supervised Contact Centre proximate to the home of the Mother and children.
For the purposes of Order 4 above, the Mother is to deliver and collect the Children from this service for the purpose of them spending time with the Father.
The Father is responsible for the payment of all fees associated with the supervision of the children's time with him in accordance with these Orders.
Twice yearly (and no later than 1 February and 1 August), the Mother provide, or cause to be provided, to the Father at his last known address or as nominated by the Father, information relating to the children, including:
(a)Any serious medical problems or illnesses suffered by the children;
(b)All school reports, reports on progress and behavioural issues and other school circulars in relation to the children; and
(c)Photographs of the children.
The Mother notify the Father by mail at his last known address of any major long term decisions she makes in the exercise of her parental responsibility within 30 days of such decision.
Each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the child, and shall immediately remove the child from the presence of any other person who does so.
The Father be restrained from contacting or approaching the Mother and the children by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing (including via email or SMS in an emergency).
The Mother shall within 7 days of these Orders provide to the Father an address to which he can send gifts and cards to the children on the following occasions:
(a)The children’s birthday;
(b)Christmas; and
(c)Easter.
The Independent Children’s Lawyer shall bear her own costs of these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Kinsley & Kinsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 592 of 2013
| MS KINSLEY |
Applicant
And
| MR KINSLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, who is eight, and her brother, Y, who is six. It is a very sad case which was difficult to decide. The main issue for the Court is whether the children’s Father suffers from a mental health illness and, if so, how that illness affects his relationship with the children and the circumstances in which he should see them. These reasons for judgment explain why the Court has ordered that the children should spend time with their Father no more than four times each year on a supervised contact basis.
Background
The Applicant in this case is the children’s Mother. She describes herself as a (occupation omitted), is 30 years old, lives with the children and her partner in the (omitted) region of New South Wales. The Respondent is the children’s Father. He is 42 years old, describes himself as a (occupation omitted), and lives in (omitted) Sydney. The parents met in (omitted) in (omitted) 2007, commenced cohabitation in (omitted) that year, moved to Sydney shortly thereafter, and separated in July 2012. They lived together, therefore, for just under five years.
The present proceedings were commenced by the Mother in July 2013. The litigation history is a long one. A family report and two expert psychiatric reports were commissioned. The Father was represented at times, but unrepresented at other times including the final hearing.
A consistent theme in the evidence led in the Father’s case is that he does not suffer from mental illness, and that he presents no risk of harm to the children, who he dearly loves. Whilst the Father concedes that he had mental health issues in the past, it was, again, a consistent theme in his case that he was either misdiagnosed at the time, or recovered completely. The Court finds, however, that for most of the Father’s adult life, he has struggled with mental health issues. The Court further finds that throughout the course of these proceedings, he has attempted to minimise the nature and extent of his mental health illness.
Even Dr R, the Court‑appointed expert, found it hard to make an accurate diagnosis of precisely what condition the Father suffered from in the past, and indeed continues to suffer from today. What is abundantly clear from the evidence, some of which will be discussed below, is that the Father has, in the past, been diagnosed with bipolar disorder, depression, paranoid delusions, probably drug‑induced, schizophrenia, probably drug‑induced, schizoaffective disorder and personality disorder. The current diagnosis of Dr R) will be discussed below.
The Court also finds, however, that compared to the past, the Father’s current mental health is reasonably good. There is evidence of thought disorder and paranoia. There is evidence of underlying personality disturbance. The totality of the evidence suggests that any risk that the Father presents to the children is unlikely to be a physical one, but rather a psychological or emotional one. The dilemma for the Court is in finding a way to protect what is clearly a good relationship between the Father and the children whilst at the same time protecting them from the risk of the adverse consequences on them not just of their Father’s mental health condition but of his reluctance to acknowledge same, to obtain treatment and to be medication‑compliant.
There are many historical facts in this case that, ultimately, play little part in informing the Court’s decision in this case. Mr Jackson of Counsel represented the Mother in these proceedings. His amended case summary document dated 14 September 2017 (the week before the hearing but before he received Dr R’s second report) contains a comprehensive chronology of background facts. Having considered all the evidence in this case, including extensive materials produced on subpoena, the Court is satisfied that this statement of background facts reflects, for the most part, historical matters. The chronology obviously drew on independent sources of information such as documents produced on subpoena. That statement of background facts, therefore, will form the first schedule to these reasons.
The current orders relating to the children are interim orders made by the Court on 10 February 2016 following an interim hearing. These orders discharged earlier interim orders. The current orders provide for equal shared parental responsibility, for the children to live with their Mother, and to spend time with their Father for two hours each fortnight on a supervised basis. For the most part, the children have spent time with their Father in accordance with this order. There have been difficulties. The supervision of the Father’s time by CatholicCare was terminated by that organisation for reasons that will be discussed below. The Father has had ongoing supervised time with the children through Relationships Australia, and that continues pending order of this Court.
The Competing Proposals
At the hearing, the Mother’s proposed order was that she have sole parental responsibility, that the children live with her and that they have no time or communication with their Father. However, he would be permitted to send to them birthday cards and birthday presents. It should be noted that whilst this was the Mother’s proposal at the final hearing, less than a week before the hearing her proposal had been that the children continue to spend time with their Father on a supervised basis, for two hours each fortnight. Counsel for the Mother explained that the change in her position was brought about by the receipt of Dr R’s second report, and the evidence at the hearing.
The Father’s proposal was contained in the Minute of Order that accompanied the written submissions he provided to the Court on 2 October 2017. In short, he sought equal shared parental responsibility, that the children live with their Mother, but spend unsupervised time with him each alternate weekend but using the changeover service provided by Relationships Australia. He also proposed a number of ancillary orders including time during school holidays and on special occasions. He proposed, however, that the parenting order be reviewed on 13 April 2018.
In closing submissions, the Independent Children’s Lawyer proposed that the Mother have sole parental responsibility, and the children live with her, the Father spend time with the children no more than four times each year, on a supervised basis. The supervision would be at the Father’s cost. The Father would be able to provide to the Mother birthday and Christmas cards and/or presents to be sent to an agreed post office box. The Mother would be required to provide to the Father packages twice yearly which include photographs of the children and updating material in relation to them.
The Issues
The main issue in this case is whether the evidence indicates that the need to protect the children from physical or psychological harm arising from their Father’s mental health, if so found, is greater than the benefit to the children of having a meaningful relationship with him. There were other issues raised in the evidence which, ultimately, are peripheral to the issue just stated. In these reasons for judgment, the Court intends to focus on the evidence about the Father’s mental health presently, informed by his past mental health history. An assessment will need to be made about what, precisely, is the nature of any risk to the children which arises from any mental health conditions which are found, and then how to manage such risks.
The Evidence
The Applicant relied upon the following material:
a)Amended Initiating Application filed 8 September 2017;
b)Minute of Orders sought;
c)Affidavit of Ms Kinsley sworn 6 September 2017; and
d)Amended Case Outline dated 14 September 2017.
The Respondent relied upon the following material:
a)Amended Response to Initiating Application filed 8 September 2017;
b)Minute of Orders sought;
c)Affidavit of Mr Kinsley sworn 8 September 2017;
d)Case Outline filed 12 September 2017; and
e)Further Submissions filed 2 October 2017.
The Independent Children’s Lawyer relied upon the following material:
a)Family Report by Ms C dated 22 March 2015;
b)Single Expert Report by Dr R dated 3 December 2015; and
c)Updated Single Expert Report by Dr R dated 11 September 2017.
The following documents came into evidence as exhibits of the Court:
| Date | MFI No. | Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 20.9.17 | A1 | AM | Minute of Order | |
| 21.9.17 | ICL1 | ICL | Dr R's Report | |
| ICL2 | ICL | Dr R's Updated Report | ||
| R1 | RF | (omitted) printout | ||
| R2 | RF | (omitted) Certificate | ||
| ICL3 | ICL | Payslips of Father | ||
| ICL 4 | ICL | Paragraph 74 of Father’s Affidavit | ||
| ICL5 | ICL | CDC Memorandum | ||
| ICL6 | ICL | Para 14 and Annexure I | ||
| 22.9.17 | MFI1 | A2 | AM | NSW Police – Yellow tags and F21 (blue tag) 2 x bundles |
| MFI2 | A3 | AM | (omitted) Hospital Records – yellow tags | |
| MFI3 | A4 | AM | Supervised contact centre Relationship Australia document | |
| MFI4 | A5 | AM | (omitted) Therapy | |
| MFI5 | A6 | AM | Relationships Australia – blue tags | |
| ICL7 | ICL | Drug Tests results from Mr Kinsley | ||
| ICL8 | ICL | Catholic Care records | ||
| ICL9 | ICL | Costs |
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Outline of Reasons for Judgment
These reasons for judgment will commence with an examination of the expert evidence, namely the reports of Family Consultants Ms C and Ms O, and Dr R. This will be followed by a discussion of the evidence produced on subpoena by a number of third parties including New South Wales Police, hospitals to which the Father had been admitted, a psychologist he had previously consulted, and importantly the files produced by Connecting Families, CatholicCare and Relationships Australia, whose centres provided supervision. The evidence of the parents will then be considered, particularly by reference to the objective material before the Court.
The Expert Evidence
The parents attended a Child Dispute Conference with Family Consultant Ms O on 20 March 2014. The Mother’s concerns about the Father’s mental health are highlighted in this document. The Father’s response is noted as follows:-
The father denies that he has any mental illness. He reports that he was diagnosed with schizophrenia when encouraged by his mother to feign illness to access services to withdraw from marijuana. He states that his other diagnosis of bi-polar disorder was made at the time of separation and therefore not accurate. The father reports that he is well and recently underwent a mental health assessment in (omitted) which reportedly showed mental health concerns. The father denies that he requires any counselling/medication or treatment. When questioned about reference to him having a brain tumour in Affidavit material, the father reported he made this up in an attempt to elicit sympathy from those around him.
The Family Report in this matter was prepared by Ms C, and is dated 23 March 2015.
The report was in evidence, and Ms C was not required for cross‑examination by any party. Ms C’s recommendations are found at paragraphs 89‑93 of the report:-
89. It is recommended that the mother exercise sole parental responsibility for the children X and Y.
90. It is recommended that the children live with their mother.
91.It is recommended that the children spend two hours each fortnight with their father at the Children’s Contact Centre in (omitted).
92.It is recommended that the father attend upon his General Practitioner for a referral to the ATAPS program to assess his mental health status and that the father undertakes to comply with any recommendations for treatment arising out of his engagement with a psychiatrist in the first instance. It is further recommended that a copy of this Family Report is made available to each of the mental health professionals who may be engaged to assess and/or treat Mr Kinsley.
93.It is recommended that the key professionals involved with Mr Kinsley report to the Court through the Independent Children’s Lawyer on a regular basis (but no less than every eight weeks) on Mr Kinsley’s level of engagement with, participation in, and compliance with treatment modalities and also his prognosis.
By the time of the report interviews, the Father had commenced spending supervised time for the children, and one of the main issues was the future parenting arrangements. Ms C noted the Mother’s concerns that the Father was in denial about his mental health diagnosis, and his refusal to seek appropriate treatment. By contrast, the Father raised concerns that the Mother was significantly overstating issues to do with his mental health in order to prevent him from having a relationship with the children.
At paragraph 25 of the report, Ms C recorded the Father’s belief that his mental health had been misdiagnosed. Thus, the Father explained, when he was diagnosed with bipolar in 2012:
He was actually suffering from ‘broken‑heart syndrome’ and he was traumatised by the break‑up of his relationship with Ms Kinsley, rather than suffering from mental illness.
Referring to his earlier diagnosis of drug‑induced schizophrenia in 2005, the Father insisted that this came about because of his Mother’s manipulations. He was firmly of the view that he never had schizophrenia. He explained that he did take medication for a few months in 2012/2013 but he stopped:
because there was too much happy. I got high on life while taking them and I forgot about my worries but in a hyper way. It was fake happiness. So I said to myself it was time to wake up and get on with real life.
The Father explained to Ms C that he felt “ridiculed and victimised” by people insisting that he has a mental health issue.
At paragraph 33, Ms C notes:
33. Mr Kinsley was asked if whether, should the Court find that his mental health is a concern in relation to him spending time with the children, he would agree to psychiatric review and intervention, including the possibility of medication, as a condition of him spending time with the children in the future. Mr Kinsley said that he would agree “if it would get me out of this mess” but the Court would need to pay and the Court would also need to be on notice of a later compensation claim, due to the side effects of psychotropic medication. Mr Kinsley also suggested that the Court would need to prove the diagnosis of bi-polar in the first instance and that he suffers from a chemical imbalance, rather than just intemperate emotions brought on by life stressors, as Mr Kinsley believes is actually the case.
In her evaluation, Ms C makes a number of important points. For example, at paragraph 77 she deals with the Father’s autonomy to make his own decision about mental health treatment:
77. It is, of course, every patient’s right to exercise free choice over whether or not they wish to take medication for a mental health condition. Mr Kinsley spoke at length about how he has chosen to take responsibility for his behaviour by recognising his problematic thoughts, moods and emotions and actively choosing to resist being controlled by them. It is beyond the expertise of the Family Report writer to comment on, or analyse, whether this course of action is an appropriate one for dealing with bi-polar disorder. It is notable, however, that Mr Kinsley continues to strongly deny that he has bi-polar disorder, despite evidence of clinical diagnoses over time, and also the fact of a significant family history of the illness. When a person denies they are mentally ill, they are less likely to recognise when they need professional assistance and to seek it in a timely manner. This can put the sufferer at considerable risk and put those around them at risk as well.
She continues with this theme at paragraph 82:
82. Mr Kinsley was ambivalent about whether he would agree to psychiatric review and intervention as a prerequisite for him spending unsupervised time with the children in the future. The various comments he made about this possibility indicate that it is unlikely in any event that he would do anything other than superficially comply and probably only while there was a level of official scrutiny. While Mr Kinsley is a free agent in regards to his choices about medication and treatment, he needs to understand that these choices will have logical consequences in relation to his time with the children. Currently, his insight into the impact of his behaviour on his time with the children is limited. He indicated that he believes, rather, that there are institutional forces intent on taking away his relationship with the children and the Court system fails to uphold fathers’ rights.
Ms C recommended at paragraph 85, for example, that the matter would actually benefit from being adjourned to enable the Father to decide if he was going to actively seek out psychiatric assistance including the possibility of resuming medication. She emphasised that it needed to be more than a basic GP mental health plan, but rather a full psychiatric evaluation with a treatment plan, and ongoing sessions with a clinical psychologist and possibly medication.
What is clear to the Court is that from early April 2015, when the Father received Ms C’s report, he was on notice not just of the significance of the issue of his mental health, but of recommendations for a pathway that he might follow to address this issue. This is significant because, as further evidence will show, he did not follow up on the recommendation, and the Court finds this was entirely consistent with his view back then, and now, that he does not have a mental health issue that needs to be addressed.
Dr R was the Court‑appointed expert. The engagement of a psychiatric expert followed from Ms C’s report. Dr R’s first report is dated 3 December 2015. Dr R described the Father’s manner as being:
A little odd in his emotional reactions at times.
The Father told Dr R that he did not believe he had any mental illness, but Dr R’s observation immediately thereafter was:
There appeared to be lack of insight into the fact that he has had some significant mental health problems. (lines 231‑232).
At lines 287‑300, Dr R reported some of the Father’s forensic history:-
From a psychiatric point of view he was treated with Prozac and an antipsychotic from the age of 23. He couldn’t really explain what happened here. He was treated at (omitted) “mum threw me in. I smoked dope.” It appeared that he may have had a psychotic episode. He used marijuana from the age of 14 until 26 on a regular basis. He hasn’t used marijuana since that time except he had one smoke of a marijuana joint at the time of the breakup. He tried heroin on one occasion in 1996. He used acid in the 1990s a lot. He also used ecstasy occasionally over 2 years. He used speed between 20 and 36. He last used drugs when he was 36. He has been clean of drugs for the last 2 years. He denied any alcohol abuse.
The Father told Dr R that he was not on medication, although he had previously been on antipsychotics and antidepressants. He said to Dr R that he was not on medication because:
I don’t need any.
The Father was, however, seeing a counsellor, indeed two counsellors, one through CatholicCare, and the other a psychologist. The Father explained that he used CBT and mindfulness.
In his evaluation, Dr R was conscious of a number of issues. In relation to the children, he records at 489‑493:
It was difficult to get a clear picture of his ability to understand the needs of children. He probably was able to understand the biological needs of what children would require. However the psychological and social needs it was unclear to me that he had a clear picture of the children.
Dr R continues at 498‑510:
His use of drugs seemed to dominate his life from the age of 20-36. The drugs were mainly marijuana and speed. I believe that he cares a great deal about the children. He has been attending contact on a supervised basis. I believe he cares a lot about the children and wants to be involved in their lives. However I’m not sure he has realistic ideas and expectations about the children. Some of his comments about his sister’s son setting up the separation to occur seemed odd. His description of women’s problems because of menstruation also seemed odd. His description of him being immature was odd as were his comments about wanting to go back to school to study. He said he was the top (hobby omitted) person and that he was an outstanding athlete and that he operated a whole (omitted) suggested the possibility of unrealistic thinking.
At 523‑529, he discusses the diagnostic possibilities relating to the Father:
Bi-polar affective disorder with manic episodes that maybe worsened by stress. The other possibility is drug induced psychosis that occurs when he uses psychoactive substances that induce psychotic symptoms. He probably suffered an adjustment disorder following the breakdown of the marriage.
Dr R’s recommendations are found at 563‑582:
I recommend that Mr Kinsley continue with his psychological assistance. He also needs to be under the care of a psychiatrist to review his mental state.
His serious mental health disorder appears to be largely dependent on his substance use. He is unlikely to have further psychotic episodes at this point unless he uses substances; however his underlying personality disturbance has predisposed him to drug use and also led to dependent and narcissistic features with poor insight into the effect on others. To his credit he has been able to be gainfully occupied with work and support himself and he has also formed a new relationship with Ms L.
I note that he was diagnosed by the psychologist Ms E as meeting the criteria for bi-polar however it wasn’t clear to me how she formed this diagnosis.
It was also worth noting that he was diagnosed with schizophrenia in 2006 and also again in 2012.
Finally, Dr R addresses the specific questions asked of him at 587‑627:
1. Mr Kinsley’s psychiatric disorder?
I believe that he suffers from drug induced psychosis. I couldn’t find any evidence to support bi-polar affective disorder. He did have an acute adjustment disorder with suicidal ideation when the relationship broke down in 2012. Underlying the disorders and the history of drug use is a personality disorder with dependent and narcissistic features.
2. In opinion if the children are at at an unacceptable risk if they spend time with the father?
When with the father for short periods of time I believe that there would not be an unacceptable risk unless the father was directly under the influence of substance or if he was under an acute stress. At other time she appears to be able function adequately such as being able to work fulltime and also has a new relationship with Ms L.
3. An opinion as to any impact which the children may face in spending unsupervised time with the father in the event that the father does suffer from a psychiatric disorder?
The personality disorder itself does not prevent the father from being able to have a positive relationship with the children. They are not likely to be in an unacceptable risk unless there are additional circumstances such as drug use or acute stressor that might destabilise his mental equilibrium.
4. Any recommendations you may make in relation to parenting arrangements for the children in the event that the father suffers from a psychiatric disorder which would include the issue of parental responsibility?
As I have not assessed the whole family including the children and the mother or the interactions I am not in a position to provide firm recommendation in relation to parenting arrangements. However even though the father does suffer from a personality disorder I don’t believe that this should prevent him from having some contact with the children. I would probably recommend it be for periods of time that are not likely to overly stress him and that it may need to be graduated. I don’t have a firm view as to whether the time should be overnight. However I do believe it could be graduated from supervised to unsupervised for daytime contact. In relation to parental responsibility I don’t have a firm view however if there is unacceptable conflict between the parents in some situations it is better for the parental responsibility to lie solely with the residential parent.
It is important to note that, as Dr R notes at 615 above, his assessment was not of the entire family, but really focused on the Father’s mental health. One would have thought, however, that the Father might have reacted to this report with a degree of optimism, and that he might have embraced the recommendation even if for the purely pragmatic purpose of enhancing his prospects at a final hearing.
Dr R’s updated report is dated 11 September 2017, was released on 13 September 2017 and was thus only available shortly before the hearing itself. The recommendations are found at lines 792‑822:-
RECOMMENDATIONS
1. I recommend that the children remain the care of the mother whom I believe is a capable caring parent and would be able to continue to provide well for the children.
2. I recommend that although the children want to have a relationship with the father that he is not able because of his mental illness to have a substantial input into the children. At most I believe that he can provide recognition contact. The aim of recognition contact is to allow children to have enough contact with a parent to be able to identify positively with the parent without being adversely affected by the parent. Unfortunately Mr Kinsley is not well enough to have a substantial input into the children.
3. I recommend that neither parent denigrate the other parent in front of the children.
4. I recommend that neither parent use any drugs or alcohol or coercive parenting with the children.
5. I would recommend that Mr Kinsley seek treatment with a psychiatrist and that he probably needs to have antipsychotic medication possibly even a trial of Clozapine to see if this could improve his disordered thinking. Mr Kinsley needs to be involved with a mental health service.
6. I recommend the mother have some supportive counselling to assist her to manage her situation.
7. Mr Kinsley needs to be involved in a long-term rehabilitation service to try and assist him to develop work skills and to find also appropriate long-term accommodation.
At lines 825‑870, Dr R responds to the specific questions asked:-
1. Mr Kinsley’s psychiatric disorder?
I believe that although I thought previously he suffered from a drug induced psychosis and that there was an underlying personality disorder. I now believe in addition to the above disorders that due to his odd thinking such his (omitted) beliefs and persisting thought disorder that there is mild chronic schizophrenia which is exacerbated by drug use. The chronic schizophrenia does impair his parenting ability significantly with his disordered thinking and lack of executive functioning and poor planning and organisational thinking.
2. Opinion if the children are at an unacceptable risk if they spend time with the father?
I believe that the father although he would not physically harm the children is an unacceptable risk because of his lack of insight and ability to understand the psychological and social needs of the children. Therefore I do believe that he is an unacceptable risk and cannot be left unsupervised with the children. For example as outlined in the interview with me on page 12, he attempted to suggest or initiate concerns about possible sexual abuse of the children by Mr M and was also questioning the children inferring that they were physically being hit by Mr M. For example in the report from (omitted) Children's Contact Service at Relationships Australia on 20/05/17 the father questioned the children and there was a report that Mr M would get angry with them and the father asked the children “does he hit you.” This is suggestive questioning which is problematic and very destructive.
3. Any recommendations you make in relation to parenting arrangements?
I don’t have a firm view about parental responsibility except that the mother appears to be in a good position to take this responsibility.
For the father to be able to graduate to unsupervised time with the children he would need to demonstrate that he is engaged well with psychiatric treatment, accepted medication and rehabilitation and be able to demonstrate that he does not have thought disorder and has support from his treating psychiatrist that there is no disordered thinking. Mr Kinsley would also need to actively promote and support Ms Kinsley and Ms Kinsley’s partner and their role with the children. Mr Kinsley would also need to be able to demonstrate that he can support himself, have stable residence and stable employment.
In essence the father is functioning at a childlike level and so is not able to respond appropriately with the children. In my view the father is attempting to and wants to undermine the relationship between Ms Kinsley and Mr M.
Pausing here, before considering the report further, what is apparent from the above is that Dr R formed the view that the Father continued to deny and/or minimise that he suffered from a mental health condition and had not sought further treatment. The impression formed by Dr R is entirely consistent with the evidence before the Court. The risk to the children was described in psychological and social terms, rather than physical risk. Dr R recognised that, in many ways, the future of the Father’s relationship with his children was very much in his own hands (see lines 857‑865).
In interview, it seems that Dr R quickly became conscious of possible thought disorder. At lines 365‑369 he records:-
Mr Kinsley’s thoughts appeared to be very circumstantial. There was evidence of woolly thinking and loosening of association. His thoughts had difficulty with coherency and staying on a logical train of thought. In all I thought there was some formal thought disorder.
As will be seen from a discussion of the Father’s evidence below, the issues of woolly thinking, loosening of association, lack of coherency, and staying on a logical train of thought, were all apparent during the hearing, either from the evidence the Father gave, or the manner in which he conducted his cross‑examination.
A further example of this is provided at lines 404‑411:
Mr Kinsley said the wants to help people and keep children safe and wants to make a difference in life. Mr Kinsley explained that Ms Kinsley was now living in (omitted) and he was planning to see if he could work there to make the environment safe. “I will reach for the stars and get to the moon. I want to help the bad area of (omitted). I want to make the area safe.” These are examples of odd illogical thinking characteristic of schizophrenic thought disorder. He believes that he can make a difference in (omitted) to make the place safe by doing family dispute resolution and to help the homeless.
Yet another example is found at lines 420‑428:-
I asked him about whether he was hearing voices. His flippant response was “Jesus wore short pants. I am over these questions. I’ve told people. I don’t hear things. I never did hear voices.” He was affronted about my questions about whether he heard voices. Then he said “I can’t remember.” He was upset. I asked if he had any thought interference. He denied that he had any feelings of thoughts being put into or taken out of his mind. There was no control of his thoughts. The television and radio has not interfered with his thoughts. He was denying any thought disturbance. Mr Kinsley said he would like to have mediation to be able to see the children.
Dr R was concerned about inappropriate comments that the Father made to him during the course of a forensic interview. At 457‑460, he records:-
Some of the interaction with me. Clearly I looked a little tired as there had been several hours of interview. It was interesting that Mr Kinsley said to me when I looked a bit tired “am I keeping you up.” I thought this comment although possibly accurate was still inappropriate to make.
This is significant, because the examination of the records produced by the supervised contact centres also evidence inappropriate discussions with children. Interestingly, both of these categories of inappropriate comments occur in a forensic setting, ie, where the reasonable inference to be drawn is that the Father knew that his behaviour and comments would be recorded for the purposes of the proceedings before the Court.
There was concern about a comment the Father made in relation to the Mother’s new partner at 462‑471:-
Mr Kinsley was concerned about Ms Kinsley’s new partner as he expressed a view that he may be sexually inappropriate. “He flashed his dick at him. Y told me. Mr M flashed his dick at him. Mr M said his dick is bigger than Y’s.”
This interaction and report concerned me greatly that Mr Kinsley was questioning Y about sexual matters and sexual exposure which is highly inappropriate. Mr Kinsley seemed very focused on Mr M as a source of great concern for him and it would appear that he has inappropriately questioning Y about Mr M and sexual matters such as “his dick.”
There is reference to this in the records of the supervised contact centre. In that context too, the Father was told that the discussion was not appropriate with the children.
At 482, Dr R appears to summarise his interview with the Father by saying:
It wasn’t possible to get any coherent picture from Mr Kinsley.
What was clear is that he was not on any medication.
Dr R observed the interaction between both parents and the children together. This is recorded at 505‑545. The observations were quite good but for something that Y said. At 526‑535 the report states:-
Y said “I want you two to get back together.” Both parents looked a little shocked. Then inappropriately Mr Kinsley said to Y “look at your mother’s finger” referring to the mother’s engagement ring.
Ms Kinsley quickly stopped this train of discussion and said no to try and divert Y. The father clearly was trying to make a point that the mother was engaged and that the parents reuniting would not be possible. However this was at a level of understanding that was quite inappropriate. Therefore the mother’s response was appropriate and the father’s response here showed a lack of insight.
Again, the observation will be made from the supervised contact centre records below that the Father has on other times, indeed several times, said inappropriate things in the presence of the children, even in a forensic context.
Dr R found that the children had a very good relationship with their Mother, who had remained their primary carer, and has always focused on their needs. The children have a very strong bond with her and a strong loving attachment. The Mother has no current mental health issues and is a capable caring parent who should continue to provide well for the children into the future. Indeed, Dr R expressed the strong view (not in contention in this case) that the Mother wanted to promote a relationship between the children and their Father, subject to their safety.
Dr R found the Father to have had a very difficult childhood and early life, which was dominated by drugs and mental health illness. Nonetheless, he loves the children a great deal, and they are attached to him. Dr R’s opinion of the Father’s mental health is found 628-659:
As mentioned Mr Kinsley had severe adversity during his childhood and early years with coercive parenting from both parents. He used marijuana from the age of 14-26 and speed from 20-36. There were two admissions to (omitted) for psychosis and also a crisis admission to the (omitted) Unit. He has had various diagnoses of schizophrenia and bi-polar affective disorder as well as personality disorder. I believe that he had also significant early adversity which impacted on his personality development. Previously I had raised the possibility of chronic mild schizophrenia or bi-polar affective disorder. He also has had drug induced psychosis.
On my previous assessment he described some odd features. In my previous assessment he seemed to have unrealistic ideas and unrealistic expectations of the children and his understanding of the motivation of others. The unrealistic of the expectations of the children was demonstrated in some of the sessions that were observed in how he wanted the children to report to him about the mother’s boyfriend and how he had unrealistic expectations of the children as outlined by the mother (see early reports from the mother.) Mr Kinsley reported odd description in my previous assessment about women’s problems being caused by menstruation. He had odd ideas about (omitted) and being an outstanding athlete. Now he has odd ideas about becoming a pallet person who can make pallets from overhearing some discussion with a homeless person.
I found on mental state that he had loosening of associations and odd incoherent ideas characteristic of schizophrenic thinking. I believe that the most likely diagnosis is chronic low-grade schizophrenia which can be exacerbated with illicit drug use. The oddities in his thinking his incoherence and lack of logical thought, difficulty understanding the needs of others I believe are characteristic of schizophrenic thought disorder.
He formed the view that the Father could, notwithstanding his mental health issues, provide for the biological needs of the children, but not the psychological and social needs of them. At 668-682 the report notes :-
Previously I had noted that he believed that his sister’s son had ruined his marriage which seemed rather odd. Mr Kinsley was inappropriately suggesting that the children may have been sexually abused or sexually interfered with by Mr M. He also inferred that Mr M was physically assaulting the children.
Mr Kinsley was inappropriately questioning the children I believe. Mr Kinsley wanted to write inappropriate information in a communication book. The statements in front of the children and the burden on the children that Mr Kinsley was placing on them I believe was inappropriate. Therefore I unfortunately believe that Mr Kinsley’s schizophrenic illness does impact on his ability to provide for the psychological and social needs of the children which does present an unacceptable risk to the children because he could in his inappropriate questioning unwittingly undermine the children’s relationship with their mother.
It is clear that Dr R was firmly of the view that the Father’s schizophrenic illness did impact on his ability to provide for the children’s psychological and social needs. Notwithstanding that, the children would like to spend more time with their Father and, indeed, are probably puzzled as to why this is not taking place. Nonetheless, Dr R formed the view that the Father had a loosening of associations and odd incoherent ideas characteristic of schizophrenic thinking. He thought the most likely diagnosis was chronic low-grade schizophrenia which could be exacerbated with illicit drug use. He thought that the Father’s oddity in his thinking, his incoherence, and lack of logical thought, as well as difficulty understanding the needs of others, are characteristic of schizophrenic thought disorder.
Under the heading Possible Outcomes, Dr R states as follows at 776-790:
Should Mr Kinsley continue to have supervised contact with the children I believe that they would enjoy that time however in the long-term supervised contact would be difficult to maintain and is likely to breakdown. Even if Mr Kinsley is not using drugs his chronic low grade mental illness is a significant problem for him. If he were to use drugs it is most likely that he would relapse into an acute psychosis.
The major revision that I would make from this assessment on this occasion is that the thought disorder I believe is much more significant. The reports of inappropriate behaviour and pressure on the children from the supervised visits are strong indicators that Mr Kinsley does have significant impairment of his parenting capacity. In all I formed the view that he is not able to provide adequately for the children and is at risk in attempting to undermine the children’s relationship with the mother and Mr M.
It is important to record at this juncture that where Dr R refers to records of supervised contact centres, the Court has reviewed these records, which all came into evidence, and is comfortably satisfied that Dr R has accurately interpreted the same.
Before considering the cross-examination of Dr R, it is worth pausing for a moment, and standing back to look at the totality of the expert evidence before the Court. On 20 March 2014, at the Child Dispute Conference, the Court is satisfied that the Father was well aware that the Mother’s greatest concern about the children was his, ie, the Father’s, mental health. Ms C, in her report dated 23 March 2015, recommended that the Father engage with a psychiatrist. Dr R, in his first report dated 3 December 2015, recommended that the Father be under the care of a psychiatrist. The same recommendation is found in Dr R’s final report dated 11 September 2017. There is no evidence before the Court of the Father acting on any of the above expert evidence. As will be seen below, the only reasonable inference that the Court can draw from the totality of the evidence before the Court, including the Father’s own evidence, is that he does not seriously believe that he suffers from a mental health condition, and therefore does not see the necessity of engaging with psychiatric assistance.
Dr R was extensively cross-examined on the second day of the hearing by Mr Jackson for the Applicant Mother, by the Father, and by Ms McIntosh, Counsel who appeared for the Independent Children’s Lawyer. A number of matters emerged from the cross-examination:
a)Dr R acknowledged that the diagnosis he had made was not a clear-cut one, but he remained of the view that the Father suffered mild schizophrenia, or a form of schizo-affective disorder, which was present all the time, and that was having an ongoing effect on the Father and his ability to function. This involved an ongoing disorder of thinking, an ongoing difficulty with his judgment, and an ongoing ability to function.
b)Dr R acknowledged that his position about the Father’s time with the children had changed between reports. He explained that the basis for that was as set out in the point above. His concern was about the Father’s disordered thinking. Dr R agreed with Mr Jackson that paragraph 19 of the Father’s affidavit sworn 8 September 2017 was a clear example of the Father having disorganised thought processes. Referring back to the interview with the Father, Dr R referred to the Father’s meandering, quite disordered and sometimes irrational statements, which was reflected in the said paragraph 19. He described it as either derailment or tangential-type thinking, which was quite characteristic of an underlying schizophrenia.
c)Dr R explained that a consequence of the above is that the Father would have difficulty in understanding what the needs of the children are, and being able to place their needs above his own, and to use executive thinking about how to place emphasis on what is important to the children, and to be able de-emphasise what is important to him. He referred once again to the records of the supervised contact centre, suggesting the Father had great difficulty in avoiding inappropriate conversations with the children.
d)Despite the Mother’s proposal for no contact, Dr R felt the best option for the Father to have a face-to-face relationship with his children was by way of a recognition-type arrangement. He thought there was a real difficulty in maintaining ongoing, extensive supervised time on a more frequent basis. He accepted, however, that there were potential risks associated even with recognition-type contact. The Father would still need to be closely supervised. If he were mentally unwell, the contact would have to cease. There was the risk that in a more regular supervised contact arrangement, it could not be sustained because of the Father’s non-compliance with directions, as had occurred with Catholic Care.
e)Dr R was clearly concerned not just about the fact of the Father’s inappropriate discussions with the children in a supervised contact context, but the very nature of those discussions, which could have the effect (as well-meaning as they might be) of undermining the children’s relationship with their Mother.
f)Quite apart from the mental health issues, Dr R was concerned about the Father’s lack of insight into the effect on his children of some of his words, and actions (some of which will be discussed below). There was the risk that the Father could become unpredictable, or unstable, particularly when he does not have insight into the fact that he has a significant chronic mental illness.
g)Dr R acknowledged that one risk factor towards exacerbation of the Father’s mental health condition is not being able to see the children as much as he sought.
h)In cross-examination by the Father, it emerged that Dr R had made a number of typographical errors and misinterpretations in the report. Dr R readily conceded these mistakes and misinterpretations. The critical issue is whether, having acknowledged these mistakes and misinterpretations, Dr R was prepared to ultimately vary his opinion and recommendations. He would not. He made it clear that even allowing for mistakes and misapprehensions, there remained an oddity about the Father’s preoccupation with certain things, his reasoning, and his impulsive nature. At the very least, he suggested an inability to prioritise the children, but it was more likely to be an example of schizophrenic thinking. Dr R insisted that the Father demonstrated an oddity about how he formulates ideas and makes logical decisions in his life. Dr R explained that the conclusion of schizophrenic thinking was based on a number of foundations, and even when the mistakes and misapprehensions were removed, he believed the foundational basis for his concern remained in place.
i)Even when the Father sought to explain his perspective on what others seemed to regard as inappropriate conversations with the children in a supervised context, Dr R pointed out the inappropriateness of the questions the Father asked, and the statements he made, from the children’s perspective. Thus, even if the Father genuinely believed that his children had been sexually abused by the Mother’s partner, the manner in which he had discussed this with the children was plainly inappropriate.
j)The Court notes this exchange in cross-examination by the Father at lines 40 of page 19 to page 20 line 14:
MR KINSLEY: Thank you, Dr R. I just wanted to touch on an issue that I believe needs some clarity, and that is outlined in your report, at point 164 of the allegations of “these (hobbies omitted) and I was involved in”, and in addition, your point 326 to 327, “and we have also heard mention of the (hobbies omitted) and me endeavouring to make magnets in both the mother’s affidavit and my affidavit”. I have snapshot of a conversation from a forum, that I believe that the mother can also confirm – which you may not. The author’s name, (omitted). If I can show you, which – you’re not here, which is maybe in possible. If I can show you this snapshot, does the highlighted portion of this fellows statement add some insight into previous statements made about my involvement with (hobby omitted)? If it pleases the court, I would like to show my friends and his Honour
HIS HONOUR: Do you want to read it out to Dr R? Would that be helpful?
MR KINSLEY: Yes. There’s a paragraph here, from a forum. It’s the (omitted) and Hobby Forum. It’s dated back in 2011, of the (hobby omitted), Run and Won. It says:
Mr Kinsley, you are mad, but it all paid off in the end for you, with a couple of wins and the quickest and fastest pass ever, even though (omitted).
k)The context, of course, was Dr R’s statement that the Father was obsessed with (hobby omitted), and aspects thereof. It is by no means clear to the Court, however, how the extract from the (hobby omitted) and hobby forum provided any clarity to the evidence. Indeed, the Court’s impression is that this exchange between the Father and Dr R was another example of the Father’s oddity of thinking.
l)Another similar exchange is found at transcript page 27, line 36 to page 28, line 22:
MR KINSLEY: Okay. So I will start again. The mother mentioned in her affidavit, and I’m sure the ICL will bring it up at some stage, that the mother was shown a photo of me holding a rifle with two dead kangaroos in front of me. My passion for transparency and belief in mediation aids me to inform the court that this is, in fact, true. There was also another post, in the whole scope of transparency, Dr R, which I’m sure you’re aware of – there was also another post I made during Halloween, in 2015, of me and, in the background, my late friend, who has passed on – Mr A – pointed out, via a Facebook post – he could also see a large container with the label “laboratory grade sulphur” in the background. This is also, in fact, true. Now, mixing sulphur with potassium chloride and charcoal – you get gunpowder. Now, with your misinterpretations, and everybody, I believe, infatuation to bring up the past and discredit me, do you feel, with the admissions I’ve provided you and the court, if I was in any way as presented so grossly childlike and lacking of insight, do you feel that I should have already, by now, committed similar atrocities that occurred in 1984, regarding the Family Law Court in Parramatta and, in short, the death of the Federal Magistrate’s – Mr R’s wife, Ms P. Are you aware of these happenings? Dr R, are you there?
Dr R: Yes. I’m not sure what the question is. Can you just phrase it in a question?
MR KINSLEY: With what I have said to you, and what I have admitted to everybody in the court, as well as yourself, with your comments, “childlike”, “lacking insight”, with the admissions of me having access to a rifle, to possible bomb-making materials, chronic mild schizophrenia, odd ideas – do you think that I should have done something in an atrocity manner by now?
Dr R: No. I don’t think that’s logical thinking. The fact that these concerns have been raised about how you’re functioning doesn’t mean that you would commit any atrocity, or that you should have committed an atrocity.
MR KINSLEY: But the way that your report is, Dr R, your report outlines me as to be somewhat of a mindless dimwit, who is uncapable and is unacceptable to be – even walk past children on the street?
Dr R: That is not – that is not what I suggested at all. My concern was that you didn’t show insight into the fact that, even when you had the opportunity to spend time with the children, you were focusing on undermining the children’s relationship with the mother and the mother’s partner.
m)As Dr R himself states, the line of questioning was another example of the Father’s odd thinking.
n)Cross-examination by Counsel for the Independent Children’s Lawyer elicited clear evidence from Dr R as to what the Father might do to assist himself in the circumstances. Dr R said at transcript page 34, line 43 – page 35, line 3:
Dr R: Yes. So he needs to demonstrate that he can take responsibility, not only for himself but also in promoting the children’s relationship with the mother and the mother’s partner, and that he is not going to undermine the children, and that he can place their needs above his own needs, which means that he needs to be able to come to terms with an underlying schizophrenic process, which might mean medication or – and in addition, or alternatively, be able to take responsibility for his ideas and anxieties and not place them onto the children.
o)The Court observes here that there is clear hope for the Father, if only he will embrace the medical advice that is being given.
p)The benefit of an order for recognition contact four times a year was that it would be enough contact between the children and their Father for them to be able to internalise some positive aspects of him and feel that there is an important Father figure who loves them and cares about them so that they are able to grow up knowing who their Father is, and have positive aspects about him. Conversely, the negative side of recognition contact is that they might feel a sense of loss and longing, wanting to share more of their lives with their Father, and feeling that they have been robbed of that experience. That sense of loss was one that might be carried into the future. Dr R emphasised that there was a balancing consideration at work.
q)Dr R rejected the no-contact option. Despite his concerns about the Father, he thought that the children had a strong positive view of him. They saw him as an important person, and thus no contact would be quite damaging, would confuse them, and create a great sense of loss which would be difficult for them to come to grips with.
(omitted) 2012 Mother tells the Father ‘I cannot do this anymore, please leave’. Father leaves the family home taking his work clothes with him. Over the next few days the Father returns to collect more of his personal items.
(omitted) 2012 Mother states the Father telephoned her whist driving down the highway and told her ‘here they come again, they are everywhere’. The Mother asked the Father what was everywhere and he replied ‘the speckles’. Police inform the Mother the next day that the Father is at (omitted) Hospital for observation. The Father spends one week in hospital. Father is prescribed medication. The mother notices the Father is more calm and relaxed in general. The Father stops taking the medication a month later as he tells the Mother ‘this medication effects my sexual function and I am not going to take them anymore, I am not myself on them”.
(omitted) 2012 Parties agree for the Father to see the children five days per fortnight. The Father tells the Mother “I have bi polar disorder, having a disorder makes me look weak”, “I am not coping with the break up”.
(omitted) 2012 The Father tells the Mother “I do not think I love the kids”, “I do not want the kids”, “the kids are better without me”.
(omitted) 2012 Father tells the Mother “I’m drinking and smoking pot”.
(omitted) 2012 Mother receives excessive text messages from the Father. Police decline to take messages any further as they feel the messages were not threatening.
(omitted) 2012 Father goes to Mother’s friend’s work and starts abusing her and accusing her and the Mother of being lesbians. Police were called.
(omitted) 2012 Father is admitted to hospital again after he texts the mother stating “I am going to kill myself”.
(omitted) 2012 The paternal grandmother tells the Mother “I’ve kicked Mr Kinsley out”. The Father tells the Mother he is living out of his car.
(omitted) 2012 Father states he attended a social function and consumed ecstasy. He also states he had consumed ice on six occasions during the relationship.
Christmas 2012 The Father tells the Mother “I was living in my car. I was selling myself to buy you gifts. I was raped and bashed”. Later the Father tells the Mother he had been lying about selling himself.
December 2012 Father spends time with the children for Christmas. Father states he purchases jewellery and on finance a Honda (omitted) for the Mother.
(omitted) 2013 Father tells the Mother he has a brain tumour.
(omitted) 2013 Father tells the Mother he has accommodation at a share house in (omitted). He tells her ‘the people I live with are drinking and fighting’, ‘”I have been sleeping with a knife under my bed for safety”. The mother tells the father ‘the children will not be staying there anymore’.
(omitted) 2013 Father takes up position as (occupation omitted) with (employer omitted).A few weeks later the father is terminated from his job at (employer omitted).
(omitted) 2013 Mother receives a text message from the Father stating ‘Hi Ms Kinsley, I would love to kill you”.
(omitted) 2013 Mother receives text message from the Father, within the message it read “the amount of hatred I have towards you is amazing’.
(omitted) 2013 Mother receives a call from the paternal grandmother telling her ‘Mr Kinsley has been sending me abusive and threatening text messages about harming family members. I have applied for an AVO’.
(omitted) 2013 Father tells the mother ‘I just found out my mother has been hypnotising me from the age of 17’.
(omitted) 2013 Father works casually at (employer omitted) in (omitted).
(omitted) 2013 Mother states on one occasion she consumed speed. She was upset and experiencing a difficult time. The children were not in her presence.
(omitted) 2014 Father commences supervised visits with the children being supervised by Connecting Families after court orders are made for him to spend two hours each weekend seeing the children. The mother feels the supervision is quite lax as the supervisor often sat 5-10 metres away.
(omitted) 2014 Father commences fortnightly weekend visits supervised by Catholic Care (omitted).
(omitted) 2015 Family Report is released.
Mid 2015Mother states on a few occasions she used methamphetamines with friends and has not consumed illicit substances since.
(omitted) 2015 Mother commences a relationship with Mr W.
(omitted) 2015 Mother is informed by Catholic Care that they will no longer be offering supervised contact for the Father and the children. Mother understands visits were stopped because the Father was having inappropriate discussions with the children.
(omitted) 2015 Dr R's Expert Report.
(omitted) 2016 Father resigns from his job as (occupation omitted) and receives Austudy payments.
Y attends speech therapy sessions.
(omitted) 2016 Mother’s boyfriend, Mr M tells her that ‘Aunty Ms C’ pulled him aside and told him that the Father was prepared to injure her mother and others close to her if the Father did not receive some custody of the children at the upcoming trial.
(omitted) 2016 Father relationship with Ms L (17 years of age) ends and the Father moves out of Ms L’s home.
(omitted) 2017 Mother receives email from Relationships Australia advising her they were able to offer some contact visits at the (omitted) centre.
(omitted) 2017 Father commences to spend time with the children supervised by Relationships Australia.
(omitted) 2017 Mother and Mr W become engaged.
(omitted) 2017 Mr P, School Counsellor of X’s school prepares a report indicating X may suffer from ADHD and may be on the Autism Spectrum.
(omitted) 2017 Y is suspended for 2 days from school has he had punched another student.
(omitted) 2017 Father spends time with the children supervised by Catholic Care.
(omitted) 2017 Parties commence communication by way of a communication book regarding matters of the children.
(omitted) 2017 Mother is advised by Relationships Australia that they will no longer facilitate communication by book as the Father has written inappropriate notes in the book.
(omitted) 2017 Relationships Australia tell the mother that the Father has told the children that his new partner is expecting a baby.
(omitted) 2017 Mother meets with Expert, Dr R for the purposes of him preparing a further Expert Report.
(omitted) 2017 Parties argue at the front of the Mother’s home. Mother reports incident to Police as she is concerned for her safety.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
0