Lei & Nuan (No 2)
[2023] FedCFamC2F 628
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lei & Nuan (No 2) [2023] FedCFamC2F 628
File number(s): BRC 7418 of 2021 Judgment of: JUDGE VASTA Date of judgment: 20 April 2023 Catchwords: FAMILY LAW – Children – contact – indefinite supervised time Legislation: Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC, s 60CG, s 61DA, s 64B, s 65D, s 65DAB Division: Division 2 Family Law Number of paragraphs: 132 Date of last submission/s: 20 April 2023 Date of hearing: 18, 19 and 20 April 2023 Place: Brisbane Counsel for the Applicant: Mr Taylor Solicitor for the Applicant: Life Law Solutions Counsel for the Respondent: Mr Purcell Solicitor for the Respondent: Hofstee Lawyers Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor ORDERS
BRC 7418 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEI
Applicant
AND: MR NUAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE VASTA
DATE OF ORDER:
20 APRIL 2023
BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.That the previous Orders are discharged.
2.That the mother have sole parental responsibility for the children X born 2014 and Y born 2016 (“the children”).
3.That the children live with the mother.
4.That the children spend time with the father as may be agreed between the parties but failing agreement as follows:
(a)Each alternate weekend on either Saturday or Sunday for a period of 2 hours at B Family Services, C Family Services or D Contact Centre or such other Contact Centre as may be agreed between the parties in writing.
(b)The father be responsible for all costs associated with the supervised visits.
(c)If the children are unwell and unable to attend to spend time with the father the mother produce a medical certificate to the contact centre and the father.
5.That the father communicate by telephone or facetime with the children each Wednesday from 6:00pm with such calls to be limited to 15 minutes only unless otherwise agreed. If when the father initiates the call and the children are unable to take the call the mother will have the children return the call as soon as possible.
6.That the children be at liberty to communicate with the father by telephone or facetime at such times as the children reasonably request and the mother shall facilitate the call.
7.During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of and to the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(d)Not expose or subject the children to domestic and/or family violence; and
(e)Not discuss adult issues in the presence or hearing of the children or allow any other person to do so.
Passports
8.That the parents do all acts and things and sign all documents necessary, within seven (7) days of written request received from the other parent, to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued (and if requested, re-issued) with an Australian travel document, with the requesting party to be responsible for the costs of the issue or re-issue of the children's passports.
9.That children's passports are to be held by the mother when not in use and the following is to apply:
(a)Where the father is the travelling parent, the mother is to release the children's passport to the travelling parent upon receipt of a copy of the children's itinerary and other information pursuant to Clause 10(d) for any overseas trip; and
(b)The father is to return the relevant children's passport to the mother within seven (7) days of the children's return from any overseas trip.
Travel
10.That, unless otherwise agreed between the parents in writing, during the time that the children are spending holiday time with either parent, that parent shall be at liberty to take the children to a Hague Convention country only and in relation to same:
(a)The travelling parent shall give 6 weeks written notice to the other parent of their intention to travel with the children;
(b)Unless otherwise agreed, travel is to occur during the time the children are ordinarily spending with the travelling parent;
(c)The travelling parent is not to take the children to a country listed as having an advice Level 3 or higher or listed as "do not travel" on the Australian Smart Traveller website
(d)The travelling parent shall provide to the other parent at least three (3) weeks prior to their departure the following:-
(i)general itinerary setting out the travel arrangements for the parent and the children, which must include details of the intended destination, accommodation, departure and return dates;
(ii)copies of the pre-paid return tickets for travel or other evidence of the pre-paid ticket;
(iii)copies of the children's travel insurance; and
(iv)telephone numbers on which the children may be contacted during the period the children will be overseas.
11.That the Independent Children’s Lawyer is discharged after 28 days from the date of these Orders.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lei & Nuan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
This is an application for parenting orders. The mother, Ms Lei, was born in 1987. The father, Mr Nuan, was born in 1973.
The parents met in Country E whilst they were both working for the same company in 2011. They commenced cohabitation in 2012 and were married in early 2013. They lived in a rented property in City F in Country E and the mother became pregnant with their first child.
In 2014, the parents relocated to Australia. The mother gave birth to the child, X, in 2014. The mother has since become a permanent resident of Australia. The decision to relocate seemingly was a joint decision, made after the parents came to the conclusion that Australia would provide a better living environment for their children.
After X was born, the father was the one who looked after the child and became her primary caregiver, whilst the mother established an online business. That business was registered in, and operated from, Country E. The mother worked from home, though she did have to take trips to Country E.
In early 2015, the father obtained employment in City G as an educator. The family relocated to City G and stayed there for two years. Whilst they were there, the child Y was born in 2016.
The father ceased his employment and the family moved to Region H towards the end of 2017, beginning of 2018. Cracks were now forming in this relationship, and according to the father, the parents had separated and were living separately under one roof. The mother’s version is simply that she and the father were growing apart.
Whatever the status was, the parents and the two children moved to Country E at the beginning of 2019 where the mother continued her work. The mother had assistance from her family, in Country E, to care for the children and it was easier running the business from there. However, the cracks that had appeared in the relationship were widening whilst the parents were in Country E.
The father did not speak the language and did not have much with which to occupy his time. He started to express the view that the mother was controlling him and not giving him money whilst they were living in Country E.
At this time, Y started to display problems with his development. Those factors, being the dissatisfaction of the father and Y’s development, caused the family to leave Country E and move back to Region H.
The conflict, however, between the parents increased and there were a number of verbal disagreements that occurred. The mother said that the father filed an application for a domestic violence order on two separate occasions, but withdrew those applications without any final order ever being made.
The mother eventually moved out of the family home in mid-2020, whilst the father remained in the home with the children. The mother said that the father then began restricting the times in which the children were able to see her. She said that visits were occurring approximately once a week.
In late 2020, the mother moved to Brisbane as she had found better accommodation, but she said that the father still limited the visits that she had and was insisting that he supervise some of those visits. The mother said that the father did not allow her to see the children from 21 February 2021.
The mother launched the present proceedings on 7 June 2021. In her initiating application, the mother was seeking to have regular time with the children in the form of alternate weekend visits.
When the matter came to Court on the first occasion, which was on 14 September 2021, consent orders were made for the children to spend time with the mother at a shopping centre for short periods of time. The matter was adjourned to December 2021, with orders for a family report to be prepared. The pivotal events in this matter occurred at about this time.
In late 2021, the father went to his GP, Dr J. According to the notes of Dr J, the father stated that he had been destroyed by his wife. He felt that she had manipulated him and their situation, and she had contrived to break him completely. He felt backed into a corner.
He mentioned a few times to Dr J that the only way out was if the mother were to “disappear in a river”. The father used the words “murder” and “murder‑suicide” and explained to Dr J that he would not commit suicide as it would leave his kids without a dad, so it would have to be murder‑suicide. Dr J noted that the father clearly stated that he “does not think he would act on it”. The father said to Dr J that he “feels as though he was going to end up homeless”.
The doctor was concerned because of the number of times that the father had alluded to this concept of murder‑suicide. The doctor thought it was out of character for the father. The doctor said that she was going to refer the matter to the K Health Facility and the father had agreed to that referral and agreed to commence medication.
He was advised by the doctor that, sometimes when starting, things may feel like it is getting worse before getting better. The father’s reaction was to make a comment about being able to blame it on being medicated if he were to do something.
The doctor noted that the father was the primary caregiver for the children. He noted that the father was saying that the wife had been violent towards him and that he had tried many times to report it to police, but he felt as though it was dismissed as it was all violence from a female towards a male. The father told Dr J that he had struggled to find support for males in his situation and he felt that he had no way out.
The K Health Facility arranged a phone interview with the father. He spoke about his own history and, in speaking about his history, he said that he had been reluctant to accept any prescription for medications until that day. He said that he did so only because he feels “so desperate today”.
He told the K Health Facility that he did not know where his wife was, just somewhere in Brisbane; that he had no plans to kill her or himself; and, that he had spent most of his assets fighting his wife over custody. He claimed that she did not want to have custody of the children, but she does not want him to have them but rather that she wants the children to be put into care.
He described her as “a malignant narcissist” who takes delight in attempting to destroy him. He claimed that she had poisoned the minds of all his family and he has no‑one to help him with the kids. He said both his parents are nearly 80 and they have health issues. He said that his brother is his nearest relative, but they are estranged and his brother will not help him.
He said that the legal wrangling was ongoing and costly and that he is just about broke and will possibly be homeless by January. He said that the prospect of being homeless with a six year old and a four year old was frightening. He said that the courts are aware of his situation, but Child Welfare are not yet involved. He said he was going to be doing a training course in an attempt to get a job and improve his situation.
The K Health Facility had noted that the descriptions (of the way his family of origin, and now his wife, have treated him) may be fantastic, but true, or they may indicate a paranoid psychosis, and that this would have to be examined more closely. There did not seem to be any indicia of perceptual aberrations.
The K Health Facility followed up the next day, and noted again that the history was either true, but fantastic, or indicative of a deep underlying psychosis. At that time, the K Health Facility professionals were not confident that they understood “which position is true” and that they “are currently denied an opportunity for collateral” and they needed to have a face‑to‑face interchange with the father.
It seems that they were trying to arrange that face‑to‑face interview to occur on a short time later. The father had told the K Health Facility that he was unable to attend because he needed to drop the children off in the morning and pick them up in the afternoon and that he will be travelling to Brisbane every day for training for the following two weeks.
An arrangement was made for a telehealth interview to be conducted in lieu of a face‑to‑face consultation and this occurred within a few days. In that interview, the father said that he still had feelings that he was under attack from his ex‑wife, the mother. He explained that he was in a custody battle with her at the moment; that they separated in mid‑2018; that she was paying for the children, but had stopped supportive payments in mid‑2020.
He said that the mother was of Country E heritage and that she is stuck in Australia because of COVID-19 and she has no interest in looking after the children. He said that he has been a victim of intimate partner violence and that the mother is the offender, but he denied that he was being harassed or stalked by her or anyone else. He told the K Health Facility about his upcoming family dates in this Court.
He told the mental health professionals there that his ongoing legal battles over child custody would cost him a total of $15,000. He said that he has a financial debt of $160,000 from previous loans that he lent his wife because she could not access a loan as she was not an Australian citizen. He said that he has been unemployed, in that he has not worked for seven years as he was a stay‑at‑home dad. He said that he had previously worked in industry as a professional.
He said that he was currently studying through TAFE and that would not finish until mid‑2020; that he pays $430 in rent; and, that there was a rental increase coming and another one he thought would happen again in January 2022. He said that he would not be able to stay in his current accommodation if there is an increase, and that his current income was $1600 a fortnight.
He denied any current thoughts of deliberate self‑harm or suicide and no plan or intention to kill himself. He said that he had no thoughts of homicide, in particular, towards the mother or the children. He said that he had no real plans or intent to kill his wife, who is the mother.
He said that his last contact with the mother was on 11 or 12 October where he asked her for some money to pay for a school disco, an amount of $5, and that the mother refused. The notation from the K Health Facility was that the father was noticeably frustrated over this. He told the K Health Facility that he is unsure of the mother’s whereabouts.
Because the father told the K Health Facility that he did not have these homicidal or suicidal thoughts, the hospital noted that the next step would be that he would be reviewed by his GP the next day. The hospital would then attempt to review him a day later. This occurred through a phone call.
The K Health Facility offered the father a face‑to‑face contact the next day, but the father explained that he needed to reschedule a number of other appointments because he has just managed to obtain a couple of days work in Brisbane. He says that he needed to take this work as he is undergoing extreme financial struggles due to the custody battle with his ex‑wife.
He has said that he spends a long time lamenting his situation with his ex‑wife. He reported his major stress was money and he was worried that he will become homeless and be unable to look after his children.
He said that he had hit rock bottom when he saw his GP recently. He said that, since this time, he has improved dramatically in his mental state. He says he still had the same stressors, but he was coping better and he was relieved that he had some work and he hopes to get more.
He told the K Health Facility that he has no‑one to talk to about his problems. He is estranged from his family and he blames his ex‑wife for this. He denied any thoughts of harm to self or others, but he followed this up by saying that he can understand how people can get so desperate that they hire a hitman. Upon further discussion, he denied knowing how to hire a hitman and he denied any current intent. He indicated that these feelings would become more intense if he was made homeless. There was another telehealth conference scheduled and he was accepting of those future appointments.
The next day there was a telehealth appointment. At that time, he said that he gets $3 a day for child maintenance from the mother. He said he separated in December and previously the mother had supported the family 100 per cent financially, but now “refuses to give them a dime”.
He reported the mother not wanting anything to do with the children and wanting them to go to foster care. He said that the mother has one hour face‑to‑face with the kids per fortnight where they meet at the Town L Shopping Centre, under surveillance. The father said that he does not let the children out of his sight. He said that the mother interacts with the children at the playground and has a video link with them every Tuesday.
The father said that he was exhausted from court proceedings and lawyers and financial hardship that he is experiencing. He said he did not qualify for legal aid as his case had no legal merit. He voiced that the child system is geared towards women.
He said that his stress and anxiety have led to fatigue. He said that he had depleted all moneys and emptied the children’s bank accounts. He said that he utilises Foodbank, and believed he will be homeless by the end of the year.
He said that his mother lives in Town M and supports his ex‑wife. He said that he does not want anything to do with his mother. He reports that his mother was giving $500 a month to support the ex‑wife because she was stuck in Brisbane and unable to return to Country E due to COVID-19.
He said that he is lonely and he is financially crippled. He said that the children were well looked after, with food from Foodbank. He said that he cooks breakfast for them and that they attend kindergarten and primary school.
The K Health Facility then planned to review the father again five days later.
Two days earlier, the father phoned the K Health Facility to advise that he had been unexpectedly offered work all week and that he would not be able to attend the review. An arrangement was made to try and conduct the review the following week.
On the following Wednesday, the father and the mother had contact with each other. The mother reported that she received a number of concerning text messages from the father during the course of the day and a number of phone calls from him during the afternoon and into the night. She said that she estimated she had some 15 missed phone calls, and she ultimately turned her phone off to avoid having to speak to the father. She said that the father was quite abusive during the phone calls and in his text messages.
The mother annexed the text messages in her affidavit and the father did the same in his affidavit. Whilst it is lengthy, it would seem to me that it would be best that I put these text messages on the record. The text messages start this way:
The mother said: “[Mr N] (that is, the brother of the father) and your mother want to see kids. They miss them. I showed them videos and photos. What’s wrong with it??
The father: “You said you were not seeing them. You lied.”
Mother: “Is that a problem?”
Father: “Yes, stay the fuck away. They are not your family, so fuck off.”
Mother: “They are kids’ family. You have no right to stop everyone seeing kids. Kids are not your personal belongings.”
Father: “You have poisoned the kids against you with your craziness.”
Mother: “They are my kids as well.”
Father: “I just do not see what you hope to gain as you have hurt them so much. They will not be sad at your funeral, whereas mine, they will be devastated.”
Mother: “You are out of control.”
Father: “You have fucked up their lives.”
Mother: “Good night.”
Father: “I have to say no to them as we have no money. No birthday parties, no gifts, no Christmas. It’s a daily struggle to survive.”
Mother: “They can stay with me.”
Father: “No. Fuck you. I do not have enough fuel or money to buy fuel. I am trying to shield the kids from our poverty, but you do not follow the fucking order and pay a share of anything, not even dicko $5 for disco. Kids hate you and will always hate you. You are the reason they had to empty their bank accounts and have no birthdays or means to pay for school, and you’d still refuse to pay for shit. You are irresponsible. Read your fucking orders.”
Mother: “I will just follow the parenting order and won’t say anything bad about you. Thanks.”
Father: “[Ms Lei], we are in serious financial trouble here and I am begging for help. We are out of options and if things do not improve, we are likely to be homeless in the next few weeks. I will be unable to comply with any orders and will not be caring, as the kids and I are out of money.”
Mother: “Can you ask your lawyer to talk to my lawyer regarding financial and kids’ safety issues? They can live with me. I am their mum. I won’t see them homeless. Thanks.”
Father: “Fuck the law. Your appreciation is suing us, is so kind. You are just horrible. Well, I will not show you any mercy when we go to trial.”
Mother: “I will see you on Sunday. Smiley face emoji.”
Father: “See you on Sunday and we can scream about it in the park. You are fucked up. I had my interview with the court psychologist early and you are fucked. Kids will tell all kinds of shit about you and it will go badly for you. You are going to lose over and over again. Good luck proving shit. You had to lie. Cannot substantiate anything in your statement. That is why your lawyer waved the white flag and gave up. Let’s make every conversation just awful. Heartless cunt. We are desperate and you lawyer up.”
Mother: “Calm down and have a rest. Don’t stress kids too much. See you on Sunday.”
Father: “I just off. [Ms Lei] ready for a big fight. [Ms Lei], stay the fuck away from my Mum, bad mouthing me and spreading lies. You will never be left with the kids. You are fucked too. Your family will never see them.”
Mother: “You must had a bad day. Hope you feel better soon. I love my kids. I won’t see them suffer.”
Father: “I am desperate, all because of you and the financial shit you did. I have no money to get to [Town L], so fuck you. Now, you enjoy the frustration of court.”
Mother: “I will still be there. If you won’t show up, please let your lawyer know the reason. Thanks. Have a good night.”
Father: “Fired lawyer. We doing this street style. Kids are crying for shit and I cannot give it to them. All your fucking fault. We are desperate. Desperate is not what you want. We have nothing to lose now. Courts will do fuck all. Just watch. Ha, ha, ha.”
Mother: “Are you threatening me?”
Father: “You are not welcome.”
Mother: “All I care is kids’ safety.”
Father: “Bullshit, coward.”
Mother: “I don’t want to fight with you.”
Father: “You started this fight. Well, then why fucking sue?”
Mother: “I just want to see kids. You won’t let me.”
Father: “You have less than you started. Bullshit. I begged your help and next thing is you sue me, refusing contact.”
Mother: “I only want to talk to kids, not you [Mr Nuan].”
Father: “Breach of order. Re‑read your order.”
Mother: “You are out of control.”
Father: “Nonsense. You take no responsibility. You just take. Be in for a rough ride now gloves are off. You only got the visits because of my sympathy for you.”
Mother: “Can I have the custody?”
Father: “You would be back at visitation in centres. Kids hate you.”
Mother: “That’s not up to you.”
At 11.08, father wrote: “[…].”
Mother: “You really hate me that much? I said I don’t hate you at all, [Mr Nuan]. Hope one day you will get better and stop the hate. I have no feelings towards you. The reason why I am still here talking to you with respect is because you are the father of my kids. Good night.”
Father: “So much respect. You sue us and make us poor. You hate me. That is why you screw the kids over too.”
Mother: “You totally make it wrong, [Mr Nuan].”
Father: “They used all of their money to fight you in court.”
Mother: “If there are no kids between us, I will be long gone.”
Father: “They were adamant they reject you. And won’t talk to you at all.”
Father: “Run and leave a mess like in [Country E].”
Mother: “I don’t hate you, I just don’t love you.”
Father: “With all your business partners and employees you shafted and investors you lost their money.”
Mother: “That’s it. Hope you understand.”
Father: “That is why you will never go back to [Country E]. You are on the run. Ha, ha, ha.”
Mother: “Are you lost your mind? Go to sleep.”
Father: “Your family will grow old and, die. You will never see them again. This court thing is making things worse for you too.”
Mother: “Don’t say anything about my family, [Mr Nuan], that’s too far.”
Father: “Trial is going to rip your case to shreds. Stop talking to my mother.”
Mother: “I won’t.”
Father: “You spread so many lies about money. You were there after your first visit, I heard, that same night.”
Mother: “And I won’t talk to you either, other than seeing the kids.”
Father: “Liar. We need money now.”
Mother: “Which part is our lie?”
Father: “You were with my mother.”
Mother: “Did I say I was not?”
Father: “Lies throughout your documents. Nasty, nasty, the court process is going to be.”
Once that text exchange finished, the father telephoned the K Health Facility at 23.25 or 11.25 pm. The notes from the K Health Facility state:
Phone call from client – (meaning the father) – stating that he was scared, worried, can’t sleep and angry, about to be homeless, feeling cornered. A number of themes around homicide/suicide were repeated throughout the call.
The notes go on that:
It was initially unclear as to the trigger for the call, but the client raised that he had contacted his wife tonight, desperate, asked her for help and she reportedly threatened to take the children (client has full custody, with wife having access visits).
Assessment indicates court for custody at the start of December. The father stated, “I’m not going to comply.” He reported that he had been caring for the children since they were born and hadn’t worked and now can’t work as there was no‑one to support him to look after the children. He reported that he has been there for the children their whole lives, whereas his wife has spent a significant portion of time in [Country E] and didn’t want custody of them and is now threatening to take them with her to [Country E] to be raised by her parents. The wife is currently paying $3 a day in child support and won’t give any money to him for the children.
The client reported he is struggling to pay rent. The lease is up in December, but cannot move to a more affordable area due to court order/custody arrangements. The father expressed frustration with lawyers and legal costs, reporting that he has paid $5000 to lawyers and the next round will cost $15,000 and he doesn’t have this money. He reportedly had spent his children’s savings on legal costs, but they said it was okay because they could see how stressed he was. He also stated his children don’t understand why he can’t buy them things. The father was concerned about his ability to buy food and pay for school needs for his children.
He reported that he had experienced DV from his wife and that he had cut her and that she also beat up her daughter. He feels these concerns were not taken seriously. He was expressing heightened stress around legal process, talking about “fucking lawyers”. Talked about being served by his wife’s lawyers twice. “It’s like the hunger games. You’re always being hunted.” He reported it was intimidating getting served and reported he was frustrated with his own lawyers, “Wish I could let loose and kill them all.” He said he was angry at the social injustice.
He said that he had a plan to start working next year when the children would be at school and that he could live off his finances until then, but given the legal costs, he has run out of money. He talked about his situation being hopeless and that no‑one can help him, that when discussing his situation he was dismissive of options for support externally and made comments such as, “I’m intelligent so come up with these solutions quickly,” and, “I’m savvy about money.”
He said that his wife had turned his own mother – that is, the paternal grandmother – against him. He said that his wife has told everyone that she has given him lots of money and that he has spent it all. He reported that his mother feels sorry for her because she can’t go back home to [Country E].
The K Health Facility noted that there were risks in that the father had reported that the only solution is murder:
“Murder or murder‑suicide is the only option left.” When speaking about his wife he made a number of comments about her, “She is evil incarnate. The only source of the problem is her. She’s evil.” “He reported that, “I need to run away with the kids.” He spoke about going off the grid and he would hide and not use credit cards or access Centrelink, and live off the land. He said that, “This is not a mental health issue and only got criminal options.”
He was asked about the seriousness of his thoughts in an attempt to determine his immediate risk and the father reported, “Very serious. I will kill myself now, but I would rather kill her.” He said that he was unaware where his wife was living and he was indicating that she had not told him or his legal team.
He said that there was a planned contact on Sunday with the children and he said he could kill her then and he didn’t care if it was in a public place. He reported that if he killed her, he will go to jail, giving him somewhere to live and that his children would at least be able to go into foster care and that he would spend less time for murder than dealing with her for the next 20 years. “She just needs to die horribly.” And he said, “No relief until she’s dead or out of the country” and that “murder would be the most morally vacuous option.” In relation to his own risk, he stated, “Suicide looking pretty good at the moment.”
The K Health Facility noted that the father was generally evasive about the immediacy of his risk or plans, however he was not aware of his wife’s location, and his future plans appeared to indicate a desire to be around his children.
That phone call went into the early hours of the next morning. When there was a change of shift, the K Health Facility attempted to contact the father, but could not speak to him. They simply left messages. The K Health Facility then contacted Policelink and told them of the concerns that they had. The police attempted to contact the father as well and the police told the hospital that they would try again later that night.
At about 5.00 pm that day, the father phoned the K Health Facility, responding to multiple missed calls on his mobile. The notes say that it was unclear as to whether the father was aware that the QPS had been contacted, and given the sensitivity of that and multiple comments previously from the father to suggest that he would relocate, this was not mentioned during the call, and the K Health Facility advised the father the purpose of their phone calls to him, which he missed, were to follow up following his call last night.
The notes noted that the father was difficult to build a rapport with. He said, though, that he was “good”. The K Health Facility tried to explore conversations stating that it sounded like he was quite distressed last night and the father said, “I am always distressed.” The father was asked about his plans for the evening and about his children, but the father did not respond.
The notes say that the father was pleasant, but short, stating that he was simply responding to missed calls. The K Health Facility advised that they had planned a medical review tomorrow at 10 o’clock and the father confirmed that he was aware of that and he was agreeable to attend. He was encouraged to call the 1300 number if anything happened overnight or he required additional support. The notes show that the K Health Facility was awaiting some advice from the police.
At 6.30 pm, the father called the K Health Facility again:
From the outset, he appeared angry and irritable, stating that he never wishes to engage with mental health services again and wants to disengage with their service immediately. He went into a statement about cancelling his planned appointment with the doctor and that the MH service had made things a whole lot worse for him.
The K Health Facility tried to explore what had happened and the father said that Queensland Police had contacted his ex‑wife and advised her, but he was unsure what had been said. He told the K Health Facility that he is likely going to be facing court now and he wants no further contact from that team. He then stopped the phone call.
According to the police notes, they went to the house that night with one of the mental health workers. Their notes were that the child, X, opened the door of the home and police and mental health entered the home. She pleaded with police and mental health not to take her daddy. I note that X had recently turned seven years of age at this time.
The police noted that:
The father was instantly heightened and was swearing at police and mental health, telling them to leave his property. He blamed [X] for letting them in the house and told her she should have listened to him and that they would not be there. The father was telling both children not to speak to police and the police were bad. As a result, both children, specifically [X] was refusing to speak to police and was yelling at police telling them to leave and telling them that they should not speak to her father like that.
Police and mental health were at the home for about two hours attempting to defuse the situation and de‑escalate the father.
Apart from the father appearing to escalate the children, the children appeared healthy and were dressed in their pyjamas ready for bed. Police attempted to speak to the father about care arrangements for the children and he said that he has no‑one to look after the children, no extended family and that the mother has been physically abusive towards the children.
The police contacted the mother, who agreed to come and collect the children. Police and mental health transported the father and the children to O Hospital, specifically the K Health Facility, and the mother later attended to collect the children.
The police noted that the children, especially X, appeared to be very emotional when leaving with her mother. She was screaming that she did not want to go and she was stating, “Mummy is mean. Mummy is not paying Daddy. Mummy is wanting to take us to [Country E].”
The notes also detail that the father was causing significant stress and fear to X by stating to her, “This is why I told you not to open the door. See, these people have guns. They are bad people and you cannot trust them and now they will take daddy away and hurt him.”
They noted that the child was extremely traumatised and distressed, and her father, knowing this, continued along the same lines, increasing her distress. The boy Y was also present. He was crying and fearful.
The father refused to engage on any level for any mental health assessment to establish his mental state and level of risk. He said he had been refusing to take antidepressants that were prescribed by his GP.
When he was advised that he was required to attend the emergency department for further assessment on the advice of the consultant psychiatrist, the father refused, stating to police that they will need to use their guns. The police note that the daughter X could hear the conversation, despite police trying to prevent her from hearing or seeing things to distress her.
The father was taken to the K Health Facility and an emergency examination order was then performed. The notes there record this:
Tonight, when QPS and MH clinician arrived, the father refused to answer the door. Eventually, his seven year old daughter opened the door to police, with the daughter being distressed, asking police not to take her daddy to jail. The father immediately met police and the clinician in an angry and verbally aggressive state, telling police and the clinician to get out. The father then commenced verbally scolding his daughter for opening the door, and causing fear and anxiety in his two young children, telling his daughter the police have guns and they are here to hurt him and that she cannot trust the police or the clinician.
The police and clinician made numerous attempts to de‑escalate the situation and explained to the father the reason for the police and mental health clinician attending, however, the father was highly agitated, pressured speech and yelling over the top of police and clinicians. He kept repeating that police and the clinician were violating his rights and had now made his situation worse. He refused to engage for mental health assistance, stating that he has no trust with mental health.
The notes say that:
The father was consumed by his current stressors relating to his conflict with his ex‑wife over custody battle, that he was ruminating over the same issues that he has previously reported. He said that his ex‑wife is attempting to financially ruin him and destroy his life and he now believes that the police and mental health services have helped her do this.
He denied that he had a mental illness. He said he had not been sleeping, only getting about two hours a night due to the stress his ex‑wife was causing him. He said that his situation is hopeless and he states he called mental health asking for help and asking what other options did he have. The father now believes that since the police have been involved, it will now affect him in his court case. He refused to speak with the clinician. It was offered for him to go to the emergency department voluntarily for a further assessment, and he refused.
The notes re‑state that:
The father had earlier said that he had a planned access handover visit with his ex‑wife on Sunday and stated that he would carry out murder‑suicide and was not worried that it would be in a public place. He said that killing his ex‑wife would be better than facing lengthy legal battles and having to deal with his ex‑wife for the next 20 years with her involvement with the kids.
He said that his ex‑wife does not want the kids and she is refusing to pay him any money for them. He states that he has called her, asked for money to help the kids, claiming that he asked for as little as $3 and she refused to help.
He stated that when he called mental health, he was in a desperate state wanting help. He now feels that mental health have betrayed him by attending with police. The notes note his history of depression and the prescription by the GP.
The father then went on a “rampage” about the class action that was taken against the pharmaceutical company and doctors who prescribe [a particular medication], which “caused suicidal ideations and people kill themselves”. He continued to agitate and ruminate over past wrongs by his ex‑wife.
Even though police had removed the children to other bedrooms, the father was continually trying to talk to his young daughter, telling her not to listen to police and not to trust them, that they are dangerous and they have guns to hurt people. The notes say that the father appeared to have no insight into the fear and distress he was causing his young seven year old daughter.
Not surprisingly, the father was then made the subject of an involuntary treatment order. He remained in hospital for some weeks. Whilst in hospital, one of the conversations that the K Health Facility had with the father:
He reportedly had a traumatic experience with police while he was transported to the hospital. He said that nine police turned up and put him in the back of a van and brought him here. He said that he felt very claustrophobic and he freaked out.
He later found out that his children had been given into the custody of their mother, which was causing him significant distress. He said he is concerned about the children staying with her as they are scared of her. “She can be a bully and has been abusive towards them.” He mentioned that his wife had physically abused their daughter in the past. He said he called police a number of times in the past in regard to aggression from the wife, but they never entertained it. He said he does not trust anyone when it comes to the care of his children. He mentioned his law suit battle with his ex‑wife, resulting in a lot of psychosocial stressors and mental distress and that his ex‑wife had been living in [Country E] mostly for the last seven years due to work commitments and that he had been mostly looking after the kids, but she decided to separate from him and stop paying him money to look after the kids and that resulted in a lot of financial stressors due to it as he did not have any work. He said that he had some savings, but he had spent most of it on this legal battle with the ex-wife. He said that recently he has been quite desperate, and was worried about losing his accommodation and not being able to pay his children. As a result, he contacted his ex-wife for financial support till early next year and has time to sort his things out; however, his ex-wife did not help him and told him to come through the lawyers.
He mentioned that police have told his wife that he has made threats towards her. He said “I am screwed now.” He said that she was never really under threat. He said he does not even know where she lives. He said he made some statements about hiring a hitman, but said it as a joke and he did not really mean it. He said he understands why people end up killing their family in the context of psychosocial stressors and having no hope of getting out of the situation. But he said that he had no intention or any plans of harming his children or his ex‑wife. He said he was feeling great before the police turned up and brought him to hospital. He said he has been struggling with sleep recently due to worries about his financial situation and legal issues.
The father was discharged from hospital in late 2021. It would seem that he remained on the involuntary treatment order. The father has appended to his affidavit a report that was authored by his treatment team that was meant to go to the Mental Health Review Tribunal (because the Mental Health Review Tribunal has to review everyone who is on an involuntary treatment order to see whether or not the ITO is still justified). In that report, the treating team wrote that:
There are concerns that without the Mental Health Act, the father will not engage with treatment inclusive of mood-stabilising medication, and therapeutic and social supports aimed at decreasing stressors to decrease dynamic risk factors. There is a current inability to assess capacity due to significant evidence of confabulation, conflicting stories between [Mr Nuan] and collateral information. There is a general inconsistency in behaviour, personality and recall of events over time, which extends to an inconsistency in decision-making.
The matter came back to this Court on 15 December 2021. The children have been placed with the mother ever since the evening of 28 October 2021, and, because the father had been in hospital for most of that time, they had not seen him since. Orders were made, by consent, which meant that the children would live with the mother and spend supervised time with the father.
In early 2022, the involuntary treatment order was revoked. There was a delay in the father accessing supervised time because of the waiting list at the B Family Services contact centre. The parties, quite sensibly, decided to engage with D Contact Centre so that time could commence, albeit with the father having to pay for this service. The final visit at D Contact Centre occurred on 18 June 2022; the father reporting that it stopped because he could no longer afford the fees.
Contact through the B Family Services contact centre began in July 2022. That ceased on 4 December 2022 for conflicting reasons, but the fact of the matter is that the father has not spent any time with the children since 4 December 2022, with the exception of time in which the father and the children spent being observed by their family report writer in March 2023.
Since his discharge from the involuntary treatment order, the father has been at pains to attempt to convince the Court, and everyone else, that he does not have any form of mental illness. This would seem to be quite a consistent theme of his. In a letter that he wrote to the ICL on 5 April 2022, the father stated that he was suffering from a medical condition. He wrote, and this is quoting from exhibit 7:
Given that the symptoms of [this medical condition], to which I was treated in the hospital, could be mistaken for a mental health episode, I’m of the firm belief that I did not display symptoms of mental health deterioration. Concurrently, it was established that, in fact, I was not suffering from mental illness, but in fact, [from a medical condition]. I was not diagnosed with any mental health issues, but in fact, the only diagnosis that the medical staff could report was the presence of [a medical condition]. As an individual with no history of mental illness or the diagnosis of any mental health conditions that need treatment or medication, I suggest that the police understandably made an inaccurate assessment at the time of their attendance upon my residence. I will endeavour to demonstrate this incorrect assessment through medical experts and reports. I urge the ICL to perform her own research as to the similarity in symptoms.
The father was trying to blame whatever occurred in late 2021 as having a physical origin rather than a mental one. As the notes from the hospital illustrate, the father was not given any diagnosis of any form of mental illness. The immediate explanation for his statements and his behaviour of that night was not forthcoming; however, the notes are replete with many comments that the father, when asked about what he had said, attempted to minimise and obfuscate what had occurred in late 2021.
The ICL arranged for a psychiatric report to be compiled by Dr P. Dr P conducted quite a thorough examination of the father. In the end, she concluded that the father had no mental illness. She conducted quite a number of tests: cognitive and psychometric testing, being the Montreal Cognitive Assessment; the Depression Anxiety Stress Scale; the Personality Inventory for DSM-5 Brief Form; the Adverse Childhood Experiences Questionnaire; and, the Paulhus Deception Scales.
Her opinion was that the father’s history, collateral information, presentation and reported subject of experience was in keeping with objective assessment and psychometric testing. Dr P wrote:
I am of the opinion that the father would not meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for any serious mental illness, personality or substance use disorder.
She said as to his risk, that the father’s risk to self and others was assessed as increased, but not to the extent that he would require in-patient admission or treatment under the Mental Health Act at the time of the assessment, although his risk profile could change within a very short period of time depending on circumstances.
What is significant is that when discussing Paulhus Deception Scales, Dr P makes comments that echo what was said in the clinical report for the MHRT, as well as the notes of the hospitals. Dr P wrote about that:
The Paulhus Deception Scales is a 40-item self-report instrument that identifies individuals who, when responding to assessments and rating scales, distort their responses. It is designed to be administered concurrently with other instruments to indicate the validity of the results of other instruments. The PDS score is correlated against a measure of desirable responding and can be broken down into two specific scales: Impression Management (IM), which represents a well-known category of social desirability aimed at the crude form of dissemination known as faking or lying, and Self-Deceptive Enhancement (SDE), which represents an unconscious favourability bias closely related to narcissism.
The father scored a high IM score and a high SDE score. Dr P wrote:
The father’s responses indicated a high IM and a high SDE score. Such a profile can be conceptualised as a “repressor pattern”. Individuals scoring high on both subscales tend to be restrained and generally well socialised, but when they do have problems, they lack the insight to deal with them and appear rigid. They may also appear sanctimonious about other problems. In sum, they have a trait-like style towards self-enhancement, as well as a tendency to be influenced by situational demands, leading them to respond in a socially acceptable manner. The father’s tendency to unconsciously impress needs to be taken into the context of the situation of the mental health assessment for family legal proceedings.
When one looks at all of this evidence, a clear picture starts to emerge. The father was making some quite outlandish statements from late 2021 onwards.
The first of those was that the mother was attempting to take away the children. There is no evidence of this at all. The application of the mother was that the children live with the father and the mother have contact. That was all she wanted and that is the history of her involvement, that is, once she separated from the father, he was restricting her involvement and he was controlling it. She wanted there to be orders that allowed for a regular regime of her being able to see the children and to be part of their lives. There is nothing that would show that she was in any way attempting through the courts to do anything other than regularise her contact.
For the father to say that the mother was trying to take the children away from him is just patently untrue, and he knows it to be untrue. The only things that she ever said about taking the children were that in regards to the threats that the children would be homeless, she said that she would look after them because she would not see her own children homeless. That is not trying to take away the children and no one could ever come to the conclusion that that was some sort of threat. And considering that that was only said in response to the father’s threats of being homeless, it could not ever justify all those statements that had been made from late 2021 onwards.
The other outlandish statement was that the mother was exerting financial control in keeping the father in a state of impecuniosity. The fact of the matter was that the mother herself needed support. She needed the help of the paternal grandmother and she was getting money from her to be able to support herself. The father was living in, what was, the family home and the mother was finding other places to rent. At one stage, as Exhibit 5 illustrates, she was being berated by the father, saying that:
You keep making me waste hours on end, waiting around to drop them off and pick them up, and you make minimal effort in every regard.
And she said:
Well, if I had a car, that would make things much easier.
The father said:
I cannot buy another one. We still have over $150,000 in net debts to repay. It will take me years to repay that, as I doubt you will pay anything.
The mother’s response was:
Sell the property –
(that being two properties that the father had as a trustee in City Q.) The father said:
I do not own it.
The mother said:
So why should you pay for them?
The father then changed the topic, saying:
You know our movements. We’re going home. If you want to see them, I will offer you a lift to and from the train station, but you are a very nasty person. Life is always going to be hard for you.
The mother said:
You don’t need to say those nasty words to me. I wish all the best to you and I mean it. You need to control your feelings, as you are an adult. We need to deal things like an adult.
The father gave evidence here that he – well, it was very difficult to make out what the father’s evidence was, but in effect, that he was a trustee, the registered owner of two properties. He was trustee for an organisation called R Incorporated. He gave very vague evidence and simply would not answer questions about this particular matter.
But as so brilliantly pointed out by counsel for the ICL, the trust document, that the father presented, allowed him, as the trustee, to act on that property as if he owned the property, and he could do anything and everything that he wanted with that property as he saw fit. That meant that he could sell that property. More to the point, it meant that he did not have to keep making payments for that property if he really believed that that was not his property. It begs the question as to why it was that, if he was so destitute, he would keep making those payments. The wife’s interrogatory to him said it all: “Why are you still paying for this?”
So it seems to me that these claims of destitution just do not, at all, have any basis in fact. The father had plenty of options if it were that he wanted money. But it was easier to make wildly emotional claims about being homeless and not being able to feed the children than to actually do something about it. It seems to me that, again, that aspect was certainly untrue.
The father was making claims that the mother was evil, that she was a malignant narcissist, that she was a nasty person. And yet he was the one who was using all sorts of epithets, calling her a liar, a cunt and many other names that I really do not have the desire to mention at all. And yet her responses were perfectly civil and showing that she still respected him. How on Earth she could be a nasty person for simply querying why, if he is crying poor all the time, he continues to pay money for something that he says that he does not own and has no interest in? The very document that he says proves this state of affairs, actually gives him the authority to do anything he wants with the property. This really goes to show the traits of nastiness and narcissism are reflective of the father, not of the mother.
The father kept saying that the mother wanted the children in foster care. That is patently untrue as well. But it does seem that the father wanted the children in foster care after he killed the mother and then killed himself.
When all these complaints about the mother are given a “reality test” the only conclusion is that they are absurd. Yet, for the father to believe such absurdities is sufficient to understand why it is that the initial thoughts of the K Health Facility, back in late 2021, were that either these things are true, but they are just fantastic, or there is a deep-seated psychosis.
A psychosis simply means that a person is out of touch with reality and has delusional beliefs about matters which are fixed and fly in the face of logic. The beliefs, that the father had, were fixed. They flew in the face of logic. It is easy to see why there were such investigations into the mental illness. But he does not have a mental illness. These are things that he truly believes. These are things that the father has allowed the irrationality of his hatred towards the mother to make him believe.
When persons get to that point, it is only time that allows the anger or the hatred to subside and go away. But it does not seem as though that has happened in this case at all. If it were that this were the sort of aberration that the father wants to make out that it was, then one would think that there would be some form of acknowledgment that he had behaved in an appalling manner. It would be expected that the father would have an understanding of how it is he came to mistakenly believe these matters and an understanding of what the true situation is. But that is not what has happened.
And as pointed out by counsel for the mother, the father simply took every opportunity he could during his evidence to still fire ‘pot shots” at the mother. He has not “owned” these incorrect assumptions, to use the buzzword that is prevalent these days. He has not given any explanation as to how he could ever have thought this way, but instead he continually minimises what he has done. As beautifully phrased by counsel for the ICL, he, in effect, claims that it was all just him having a bad day.
In his affidavit at paragraph 73, the father said:
I recognise that my behaviour in these text messages, in hindsight, were inappropriate and I am sorry for sending same.
That is such a mealy-mouthed apology that it really has no credence at all. What, however, is clear (and is hinted at by the hospital notes and by Dr P’s report, with the Paulhus Deception Scales), is that the father has learned that there are consequences if it is that he voices what he actually feels. It seems to me the father has learned to keep quiet about these matters – simply apologise, minimise and then behave as if these events never even occurred. And it is for this reason that the father remains a risk to the mother and to the children.
The father has, in the past, well and truly involved the children in his hatred of the mother. It is clear that he indoctrinated these very young children that the mother was not paying him. Such is clear from the statements made by the child, X, when the mother was going to take the child away after the father had been admitted on the emergency examination order.
It is also clear, from his own evidence, that the father took money from the children’s accounts and told them that he needed the money for legal battles against the mother. It is also clear, by his behaviour in late 2021, that he had no regard to shielding them from matters with which they should not be in contact. The children certainly were far too young to understand the significance of what was happening and should never have been exposed to such an event.
And that is where the danger comes from; because the beliefs are still there; they are just not going to be voiced, and they are going to be selectively acted upon when the father knows that there are not going to be the consequences for what it is that he believes.
I have been assisted by the family reports compiled by the Court Child Expert, Ms S. The March 2022 report was compiled some four to four and a half months after the incidents in late 2021, and four to four and a half months after the children came into the care of the mother. When she started these proceedings, all the mother wanted to do was to maintain a regular relationship with the children. What was striking to me, in the report of Ms S, was the mother’s insight that she did not have being the caregiver for the children “on her radar”.
Her reluctance to being the caregiver is also reflected in the police notes, where the impressions of the mother by the police were that there was almost an annoyance or a reticence for the mother to be having to take the children in the circumstances that she did.
But since then, she has taken on that mantle, notwithstanding that she was not prepared to do so. She has now warmed to the task, and has realised the joy that being the caregiver for these two children can give, and has given, her. As Ms S said, there appears to be no significant or immediate risk in the mother’s care.
Ms S said that the discomfort and fear that X projected around the pressure she experienced from her father will cause further stress and emotional harm, with long-term consequences. That is why she did not support the children returning to the father’s primary care. She said she gave weight to the father’s attitude, mental health and the emotional burden he placed on, particularly, X, as well as the risk of threats.
Ms S supported X and Y remaining living with the mother and spending time with the father in a supervised setting. She said it was difficult to project what the children’s time with the father would look like into the future without evidence of his meaningful engagement with mental health professionals that addresses the issues of stress management, coping, grief and loss, insight into his behaviours and putting his attitude towards the mother onto the children.
Ms S opined that the father need to demonstrate his ability to be child-focused on the quality relationship he has with the children, which will be around his interactions with them, type of conversations that he has with them and acknowledgment of the mother’s significance and presence in their life. She also opined that insight-based therapy would assist him to progress, in addition to taking on practitioners’ advice regarding medication which will help stabilise his mood and emotional dysregulation.
If this occurred, then the father’s change of behaviour would allow the children to rebuild a positive relationship. It is likely that the adults’ communication would improve once it is child-focused and centred.
She recommended that the children live with the mother and spend time with their father, weekly, at a supervised contact centre, and that information from the contact centre will be informative of the father’s behaviour towards the children.
Ms S has now completed an updated family report. The unfortunate aspect of that family report is that she had no material from the contact centres, and therefore, using her previous reports, she had no evidence in which she could be informed of the appropriateness of the father’s interactions with the children.
The other thing that seemed to be clear was that Ms S was of the belief that the father had been interacting with his mental health professionals. The only mental health professional that the father has interacted with was a Dr T, with whom he had a number of telehealth conferences. But the father had not provided a report from this particular practitioner and so no one knows exactly what had been going on. But in any event, Ms S was proceeding upon the basis that there was a mental health issue for the father (which the father has totally denied and which has, in effect, been backed up by Dr P).
The recommendations that Ms S made in the recent report were that the father spend unsupervised overnight time with the children. With all respect to her, I cannot accept that recommendation, and when it was that, during her evidence, I put to her that the father must, through a series of logical conclusions, be hiding what it is that he truly believes about the mother, Ms S agreed and conceded that this meant that the father was still a risk, notwithstanding the recommendations that she had made.
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975. Section 65D of the Act, subject to section 61DA, the presumption of equal shared parental responsibility, and section 65DAB, parenting plans, gives the Court the power to make a parenting order. A parenting order is defined by section 64B of the Act. In deciding whether to make a particular parenting order, section 60CA requires that I must have regard to the best interests of the children as my paramount consideration. In determining what is in the children’s best interests, I must consider the matters set out in section 60CC(2), primary considerations, and section 60CC(3), the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents, and the second is the need to protect a child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary, and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B, that the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and protecting them from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. There are 14 additional considerations, which I will refer to later in detail in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount. That is section 60CG. I will also be guided by section 60B, which sets out the objects of Part VII of the Act and the principles underlying it.
I must now consider the application of the legal principles in the circumstances of this case, namely, the background facts and the findings I have made, and how they apply in determining what parenting orders are most likely to promote the best interests of X and Y.
Turning firstly to the application of the primary considerations, namely:
(a)the benefit to the children of having a meaningful relationship with both parents; and
(b)the need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.
My conclusion as to these primary considerations are, in summary, it is important to X and Y that they have a meaningful relationship with both their mother and father, and (b) there is a very great need to protect them from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are that the children have been brought up with the father as their primary caregiver and that seemed to be from the time they were born up until late 2021. He being the primary caregiver for that time, the relationship that they have is important.
But the manner in which the father has treated them, that is, by exposing them to the conflict between he and the mother; indoctrinating them as to what are patently falsehoods about her actions; blaming the child for opening the door to the police; telling X not to talk to the police and that they were bad people and that they had guns, really shows that there is such a great need to protect them. Given that these considerations and my findings are central to the structure of the orders that I ultimately propose to make, this means that section 60CC(2A) has great relevance here.
As to the considerations in section 60CC(3), I will go to them seriatim:
(a)I take into account the views that the children have made; that is, that they would like to see their father a lot more than they have been seeing him, that they love him, that they care for him, and they want him as part of their lives. The fact is, though, that they are still extremely young, being eight and six, and they do not have an appreciation of the danger that they have been in. It is very refreshing to see that the mother, having the opportunity to have manipulated the children in much the way that the father had, has not succumbed to any temptation, has not tried in any way to give the children a negative impression of their father, but continually talks of him in a respectful way and supports their decision or their need to speak to him and interact with him. She just insists that it be done in a safe way. The reaction that the children had, in March 2022, when they saw their father with Ms S, shows the sincerity of what the mother has done and is a prime example of the proof of the pudding being in the eating. But I only give this consideration minimal weight.
(b)I have spoken extensively of the nature of the relationship of the children with each of their parents. The mother is maintaining a relationship of the children with the paternal grandmother and the paternal uncle, much to the father’s chagrin. But I have taken into account all of those relationships.
(c)I take into account the extent that they have taken the opportunity to participate in making decisions about major long-term issues and what will now happen in the future.
I have taken into account the extent to which each of the parents have fulfilled, or failed to fulfil, their obligation to maintain the child, which is circumstance (ca), and have spoken about this already.
(d)I have looked at the likely effect of any changes in the children’s circumstances. I am very cognisant of the fact that, having lived with the father as their primary caregiver for the majority of their lives, that, in the past nearly 18 months, they have had minimal contact with the father. I take into account the shock, in some ways, that this would have caused the children. But in the end, that has been done for their safety. But still, it is something that I have taken into account, and taken into account what will happen in the future and how it is that they will interact with their father in the future, and their separation from him.
(e)There really is no practical difficulty in what has been proposed.
(f)I have spoken extensively of the capacity of each of the child’s parents to provide for the needs of the children, including their emotional and intellectual needs. I do not need to speak of this any further.
(g)I have already spoken about the maturity, sex, lifestyle and background of the children. I have taken into account the developmental problems that Y has faced as well.
Circumstance (h) is not relevant here.
(i)I have spoken about the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
(j)I have spoken already about the family violence that has been involved here; and
(k)the family violence order that was instigated by the police and made by the magistrate following the incident on 28 October 2021. I have taken all of those matters into account; and
(l)I have taken into account the sort of order that I should make, being least likely to lead to the institution of further proceedings in relation to the children; and
(m)I have looked at all facts and circumstance that I feel are relevant.
Under section 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply, however, if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence. That is certainly the case here, and the presumption simply does not apply.
It is still there for the Court to then look at whether equal shared parental responsibility is appropriate. In this case, the facts of the matter really speak very obviously as to what is involved. Mr Purcell, on behalf of the father, conceded that the appropriate order in the best interests of the children was for the mother to have sole parental responsibility.
The question is whether or not the mother should be obliged to, before making any such major decision, be mandated to consult with the father. The mother said that she was open to doing this and said that she had no problems with this; however, given the findings that I have made, I do not believe that it is appropriate for this to occur. Given the findings that I have made, I am of the view that it is not in the children’s best interests for this burden to be placed upon the mother having to deal with a man who has such terrible thoughts towards her. If it is that she chooses to do this of her own volition, well, that really shows the innate goodness and decency of her, but I am not going to place that burden upon her, and so the order will be for sole parental responsibility.
As to what time the father should spend with the children, there is, it would seem, an agreement that the time needs to be supervised, simply because of the sorts of findings that I have made consistent with the evidence that has come out in this Court.
The father submits, though, that given the other matters that Ms S, the report writer, had looked at, that a graduated increase in time would be appropriate. It seems to me that that sort of plan is one where the Court can have some hope. If it were that the father actually were suffering from a mental illness, then there would be some real, identifiable markers upon which the Court could look at, when it is that time could be escalated.
However, having found that the father has these thoughts, but simply will not voice them because of his knowledge as to the consequences of the voicing of such opinions, the Court can really have very little confidence that any promise, that the father makes, is actually reflective of the way he is truly thinking, let alone be one upon which the Court could trust.
The performance in the witness box bore testimony to that. A very small example of that was when I asked some questions as to the way in which supervised time had ceased in December 2022 and what had happened, the father was very quick to then say that it was good that some action was happening because of proposals that he had put to the parties.
I consequently questioned, “Well, what did you end up proposing to the ICL? Where is that letter?”
The father immediately had to backtrack and say that he did not ever send any such letter.
This was an example of how the father, having on a number of times been told to answer questions truthfully, and to ensure that he kept to his oath, still blatantly disregarded that. If the Court cannot trust him in little things, it cannot trust him in big things. This is in keeping with what Dr P had discovered using the PDS. It seems to me that the risk will always be too great.
Unfortunately, this means that this is one of those rare cases where the Court sees that there is too much of a risk for the father to be spending unsupervised time with the children. However, the best interests of the children are not such that they should be denied contact, and a relationship, with the father. In the circumstances, it means that this is one of those very rare cases where indefinite supervised time is the only order that the Court can make in the best interests of the children, and that is the order that the Court makes.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 20 April 2023
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