Lofts and Lofts
[2016] FamCA 95
•19 February 2016
FAMILY COURT OF AUSTRALIA
| LOFTS & LOFTS | [2016] FamCA 95 |
| FAMILY LAW – CHILDREN – how the children are to spend time with their father – whether the children’s time with their father requires supervision – whether the father poses a risk to the children – where the mother contends the children will be at an unacceptable risk of harm if they spend unsupervised time with their father |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Lofts |
| RESPONDENT: | Ms Lofts |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1978 | of | 2013 |
| DATE DELIVERED: | Orders made 4 December 2015; Reasons for Judgment delivered 19 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 18, 19, 20 May 2015 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Baker O'Brien & Toll |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Duncan, Legal Aid Queensland |
Orders
Amended on 19 February 2016 pursuant to rule 17.02 of the Family Law Rules 2004
IT IS ORDERED THAT
All previous parenting Orders are discharged.
AND IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT
The children B, born … 1999, C, born … 2002 and D, born … 2009 live with the mother.
The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, save that the mother shall, prior to making a decision about any such issue:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The child B spend time and communicate with the father at all such times as she may determine
AND IT IS ORDERED BY WAY OF FINAL ORDER THAT
The children C and D shall spend time with the father at all times as may be agreed between the parties in writing but, failing agreement, as follows:
(a) from 9.00 am until 1.00 pm on:
(i)12 December 2015; and
(ii)19 December 2015; and
(iii)26 December 2015; and
(iv)3 January 2016; and then
(b) from 10.00 am until 6.00 pm on:
(i)9 January 2016; and
(ii)16 January 2016; and
(iii)23 January 2016; and
(iv)30 January 2016; and then
(c)from after school on Friday, 5 February 2016 until 6.00 pm on Saturday 6 February 2016; and
(d)from after school on Friday, 12 February 2016 until 6.00 pm on Saturday 13 February 2016; and
(e)from after school on Friday, 19 February 2016 until 6.00 pm on Saturday 20 February 2016; and
(f)from after school on Friday, 26 February 2016 until 6.00 pm on Saturday 27 February 2016; and
(g)from after school on Friday, 4 March 2016 until noon Sunday, 6 March 2016; and
(h)from after school on Friday, 18 March 2016 until noon Sunday, 20 March 2016; and
(i)from after school on Friday, 1 April 2016 until noon Sunday, 3 April 2016; and
(j)from after school on Friday, 15 April 2016 until noon Sunday, 17 April 2016; and
(k)until 17 June 2016 and commencing on Friday, 29 April 2016: each alternate weekend from after school Friday until 5.00 pm on Sunday or, if the next day is a public holiday or pupil-free day, 5.00 pm on Monday; and
(l)from 5.00 pm on Friday, 24 June 2016 until 10.00 am on 29 June 2016; and
(m)until 15 September 2016 and commencing on Friday, 15 July 2016: each alternate weekend from after school Friday until 5.00 pm on Sunday or, if the next day is a public holiday or pupil-free day, 5.00 pm on Monday; and
(n)from 5.00 pm on Friday, 23 September 2016 until 10.00 am on 28 September 2016; and
(o)until 8 December 2016 and commencing on Friday 7 October 2016: each alternate weekend from after school Friday until 5.00 pm on Sunday or, if the next day is a public holiday or pupil-free day, 5.00 pm on Monday; and
(p)from after school on Friday, 9 December 2016 until 5.00 pm on 16 December 2016; and
(q)from 10.00 am on 26 December 2016 until 5.00 pm on Monday, 2 January 2017; and
(r)from 5.00 pm Friday 13 January 2017 until 5.00 pm Friday, 20 January 2017; and thereafter
(s)commencing when school starts for Term 1 in 2017:
(i)each alternate weekend from after school Friday until 5.00 pm on Sunday or, if the next day is a public holiday or pupil-free day, 5.00 pm on Monday; and
(ii)for half of all school holiday periods being the first half in odd numbered years and the second half in even numbered years.
Unless otherwise agreed between the parties:
(a)those changeovers which do not occur from school shall occur at McDonald’s Restaurant at E Street, F Town; and
(b)the father shall collect the children from either school or McDonald’s Restaurant at E Street, F Town; at the commencement of time and shall return the children to the mother at McDonald’s Restaurant at E Street, F Town.
Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
Unless agreed between the parties in writing, from when school starts for Term 1 in 2017, the children’s time with the father during the first half school holidays at the end of Terms 1, 2 and 3 each year shall commence at 9.00 am on the Saturday immediately after school ends for the Term and shall end at 5.00 pm on the second Saturday after school ends for the Term.
Unless agreed between the parties in writing, the children’s time with the father during the second half school holidays at the end of Terms 1, 2 and 3 each year shall commence at 9.00 am on the second Saturday after school ends for the Term and shall end at 5.00 pm on the Saturday immediately before school resumes for the next Term.
From when school starts for Term 1 in 2017, unless agreed between the parties in writing, the children’s time with the father during the school holiday period at the end of every calendar year:
(a)if it is during the first half of the school holidays: shall commence at 9.00 am on the Saturday immediately after school ends for the Term and shall end at 5.00 pm on the fourth Saturday after school ends for the Term;
(b)if it is during the second half of the school holidays: shall commence at 9.00 am on the fourth Saturday after school ends for the Term and shall end at 5.00 pm on the Sunday immediately before school resumes for the next Term.
From the start of the 2017 school year, the operation of Clause (5)(s)(i) shall be suspended during any school holiday period and shall resume with weekend time commencing:
(a)on the first weekend of school Term if the children have spent time with the father in the first half of the holiday period; or
(b)on the second weekend of school Term if the children have spent time with the father in the second half of the holiday period.
The operation of Clause (5)(k) and 5(s)(i) of this Order is suspended for the weekend on which Mother’s Day occurs such that the children will remain in the mother’s care for that weekend.
In the event that the children would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the children shall spend time with the father from after school Friday until 5.00 pm Sunday on that weekend with the father to collect the children from school at the commencement of time and changeover to occur at McDonald’s Restaurant at E Street, F Town at the conclusion of time.
From 31 January 2017, unless otherwise agreed between the parties in writing the children shall spend time with the father:
(a)from 5.00 pm Christmas Eve until 9.00 am Boxing Day in odd numbered years;
(b)from 9.00 am Boxing Day until 5.00 pm 28 December in even numbered years.
From 31 January 2017, unless otherwise agreed between the parties in writing, the children shall spend time with the mother:
(a)from 5.00 pm Christmas Eve until 9.00 am Boxing Day in even numbered years;
(b)from 9.00 am Boxing Day until 5.00 pm 28 December in odd numbered years.
The father shall have telephone and/or Skype communication with the children each Wednesday between the hours of 5:00 pm and 6:00 pm or at such other times as may be agreed in writing between the parents with:
(a)the father to initiate the communication including by calling a telephone number to be provided to the father by the mother; and
(b)the mother to ensure the children are available to receive the communication; and
(c)the mother to ensure the communication takes place in private, is not interrupted and is not recorded.
In any school holiday period during which the children are spending holiday time with the father, the mother shall have telephone and/or Skype communication with the children each Wednesday between the hours of 5:00 pm and 6:00 pm or at such times as may be agreed in writing between the parents with:
(a)the mother to initiate the communication including by calling a telephone number to be provided to the mother by the father; and
(b)the father to ensure the children are available to receive the communication; and
(c)the father to ensure the communication takes place in private, is not interrupted and is not recorded.
Each party has responsibility for the day to day care, welfare and development of the children while they are in his or her care.
The father is restrained and an injunction issue restraining him from consuming alcohol for 12 hours before the children come into his care and at any time they are in his care or spending time with him.
The father shall:
(a)continue to attend upon his general medical practitioner and Dr K (or any other psychiatrist to whom he is referred by his general practitioner) at such times and frequency as recommended by those persons; and
(b)comply with all reasonable treatment directions made by such persons; and
(c)continue to take such medications as are prescribed by such persons from time to time.
The mother must do all acts and execute all documents to ensure the attendance of the children for counselling in F Town with a counsellor nominated by the Independent Children’s Lawyer, within seven (7) days of the date of this Order, in relation to the children rebuilding their relationship with the father.
The mother must contact the counsellor within four (4) days of being notified of the counsellor’s details by the Independent Children’s Lawyer to arrange the first available appointment.
The mother must ensure that the children attend each occasion of such counselling as the counsellor requests.
The father must promptly pay any reasonable fees of the counsellor for such counselling.
Both parents must attend each occasion of such counselling as the counsellor requests and comply with all reasonable requests of the counsellor in relation to the counselling.
The Independent Children’s Lawyer is at liberty to provide the counsellor upon whom the children attend with a copy of the following documents before the first appointment:
(a)Family Reports of Ms G dated 15 November 2013 and 1 October 2014; and
(b)Report of Dr H dated 22 October 2015; and
(c)the Reasons for Judgment when delivered.
The counselling referred to in Clauses (21) to (25) is not reportable and the parties are prohibited from adducing evidence from the counsellor at any time for the purpose of Court proceedings.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Neither parent shall denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction, shall remove the children from that environment immediately.
Each party shall, in writing, advise the other and keep the other advised of:
(a)a contact address; and
(b)telephone numbers at which they and the children can be contacted.
Each party shall notify the other of any proposed changes to their contact address or the telephone numbers at which they or the children can be contacted no less than seven (7) days prior to any such change and shall advise the other of the changed contact address and telephone numbers within 24 hours of obtaining such details.
Each party shall:
(a)keep the other informed, by email or text message, of the names and addresses of any treating medical or other health practitioner, psychologist, social worker or counsellor upon whom the children attend;
(b)inform the other, as soon as reasonably practicable, of any significant medical condition, illness or significant health issue suffered by the children.
By this Order, any treating medical or other health practitioner, psychologist, social worker or counsellor upon whom the children attend is hereby authorised to provide to either parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the children’s attendance and treatment.
By this Order, any school at which the children attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the children’s attendance, progress and participation including copies of any school reports, newsletters, applications for class photographs and the like and any information in relation to the children’s educational and social progress.
By this Order, the director of any extra-curricular or other activity in which the children participate is authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided to a parent about the children’s attendance, progress and participation in that activity, together with any report, assessment or other document usually provided to a parent in relation to the children.
Neither parent shall enrol the children in any activity which occurs during time the children are with the other parent without first obtaining the written agreement of that parent.
AND IT IS FURTHER ORDERED THAT
All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
All orders made in the proceeding identified as BRC 3506/2014 are discharged.
After the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
NOTATION:
This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Clauses (5)(c), (h), (k) and (l) to record the correct dates.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lofts & Lofts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1978 of 2013
| Mr Lofts |
Applicant
And
| Ms Lofts |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The parties are agreed that, as has occurred since their separation in August 2011, their three children will continue to live with their mother. They are also agreed that, with a requirement to seek the father’s input and take it into consideration, the mother have sole parental responsibility for major long term issues relating to the children. This sensible agreement reflects the reality that these parents have not communicated or interacted since about February 2012 and that each has a well-entrenched antipathy toward the other. It also reflects the unavoidable conclusion that their inability and unwillingness to communicate and/or co-operate means that there is absolutely no prospect they would be willing to try to make any decisions about major long term issues relating to the children jointly.
The parties also agree that their eldest child B, born in 1999, spend time and communicate with her father as and when she determines. This conclusion is consistent with the opinion expressed by Ms G, the author of the two Family Reports (the first dated 15 November 2013 and the second dated 1 October 2014), who considers B would struggle with any enforced arrangement to see her father and paternal family and should be able to make her own choices.[1]
[1]Even though this may mean that she will experience some loss of those relationships: Paragraph 130, Family Report dated 1 October 2014.
Given this agreement, the reference to ‘the children’ in the Reasons which follow needs to be read[2] as a reference to B’s brothers: C, born in 2002 and D, born in 2009.
[2] unless otherwise indicated.
Additional matters agreed between the parties – such as the manner by which the children will communicate with their father during the week and the children’s participation in counselling – are further reflected in the terms of the orders which will be made.
The consequence of these agreements is that what remains in dispute between the parties is the manner in which the children spend time with their father, including whether this time is unsupervised or not.
If their time with him is unsupervised, the children will stay at their father’s grandmother’s home, where he has lived since the separation in August 2011. It is, it seems, a ‘hub’ or - as described - ‘Grand Central Station’ (in that members of the paternal extended family are dropping in and out and coming and going during the day) for members of the paternal family.
The parties continue to live in the same relatively small central Queensland city. Their homes are located no more than about five minutes’ drive from each other. The mother and children continue to drive past the street in which the father lives twice a day. These uncontested matters take on particular relevance in circumstances where the mother’s evidence encompasses the assertion that the children will be at an unacceptable risk of physical harm if they spend unsupervised time with their father. He clearly knows – and has always known - where the children live and where they go to school. He also clearly knows – and has always known - where the mother lives. Assessment of the level of risk he poses to the children as a result of certain past behaviours (discussed in greater detail below) must take place within this context.
There is no evidence the father has ever directly threatened the children or harmed them physically. In fact, in October 2013, the parties’ eldest child, B, told Ms G (the author of the two Family Reports) that the father had not harmed them in the past; the mother acknowledged he had never hurt the children.[3]
[3] Paragraphs 25 and 84, Family Report dated 15 November 2013.
There is no evidence that the father breached the terms of the Protection Order made, initially on a temporary basis on 20 June 2012, and finally on 13 December 2012[4] or that, despite his knowledge of and proximity to the children and mother’s whereabouts, he acted in any threatening or harmful manner toward them after that Order was made. Whilst the mother told Ms G in October 2013, that, as the father is well aware of the law, he ‘pushes the limits’, there is no suggestion that there had been any violence between the parties since the Protection Order was made in December 2012.
[4] The duration of which was subsequently varied on appeal on 4 April 2013, to 15 months.
At the time of the hearing, C and D were spending time with their father each alternate weekend for one hour at the local Contact Centre.
Credit
Neither parent was a particularly impressive witness. I consider the father to have been evasive on occasion, somewhat argumentative, glib and occasionally smug and self-satisfied in the manner in which he gave his evidence.
The following aspects of the mother’s evidence persuaded me to approach an assessment of her evidence with significant caution:
a)during her cross-examination, the mother said, for the very first time, that C had told her after his interview with the police on the day of the USB incident (in 13 September 2014) that the father told him he made the images on the USB; and
b)despite initially saying that the children had always called their father “[Father’s Christian name]”, she later gave evidence to the effect that, at one stage, they used to call him dad; and
c)during her cross-examination, the mother recounted that, on the day of the USB incident, B told her that they had to move “he is going to find us” - a recounting that is not supported by any comment made by the child to police when interviewed later that day and an assertion that appears to me to be completely inconsistent with the reality that the father has always known where the children live; and
d)when the mother was interviewed by police on 27 December 2011 she was asked if the father had committed any physical violence toward her and said that, whilst she felt intimidated by him, there really had not been any in their relationship; she told the police he had never actually been physically violent toward her and that there was definitely not anything physical and no unwanted sexual advances - this is contrary to the assertions that seemingly first appeared in affidavit material sworn by her on 6 February 2012 (in support, I assume, of the application for a protection order); and
e)whilst, when asked to explain why she had failed to give the children the letter written by the father to them apologising for the USB incident (the first correspondence he had ever written to the children apologising for any of his behaviours), the mother first said she had failed to provide this to them because there was a lot of stuff going on in the paperwork but, later, said it was probably her fault for assuming they would not want to read it: the latter comment suggests to me that it was not, in fact, a matter of inadvertence but, rather, a deliberate decision based upon her assessment that the children would not want to read that correspondence.
Her action in failing to provide the children with the father’s apology for the USB events is, I think, a stark example of the manner in which she is likely to approach her support of their relationship with him in the future.
Overview of Applicable Principles
In deciding whether to make a parenting order – which, of course, includes the manner in which the children shall spend time with their father - I must regard the children’s best interests as the paramount consideration.[5] Subject to the presumption of equal shared parental responsibility[6] and Division 6 of Part VII of the Family Law Act 1975 (Cth), I must make such parenting order as I think proper.[7] In arriving at that determination, I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[8]
[5] s 60CA and s 65AA of the Act
[6] s 61DA of the Act
[7] s 65D of the Act.
[8] s 60B of the Act
The competing proposals
The mother proposes the children spend supervised time with their father for up to two hours each alternate weekend at the local Contact Centre and communicate with him via Skype each week and on ‘special’ days. This proposal arises from her contention that they will be at an unacceptable risk of physical and emotional harm if their time with him occurs on an unsupervised basis. By way of broad overview, this contention is based upon assertions which include that the father misuses alcohol and, when intoxicated, is unable to control his behaviour, has unstable mental health functioning, has demonstrated insightless behaviour and has such a deep and abiding hatred of her that it is not in the children’s best interests that their time with him occur on an unsupervised basis.
The father proposes[9] the children spend time with him on an unsupervised basis such that, after a progressive increase in this time over a three month period, their time extend to overnight time each alternate weekend and for half of the school holiday periods. He clearly holds the mother responsible for the various periods during which the children have not spent time with him and for – from his perspective – alienating them from him.
[9] Summary of Argument filed 8 May 2015.
The Independent Children’s Lawyer submits that an order providing for the children’s time with their father to occur on a supervised basis is presently in their best interests. The proposal proffered by the Independent Children’s Lawyer recognises the possibility that, if the father attends to those matters identified in the Notation included within the draft Minute of Order handed to the Court by Counsel for the Independent Children’s Lawyer,[10] further consideration may be given to affording the children the opportunity to spend unsupervised time with him.
[10] “A” dated 20 May 2015.
The matters identified by the Independent Children’s Lawyer as those which the father needs to address before unsupervised time could be considered as being in the children’s best interests are:[11]
a)successful engagement with a treating psychiatrist to address his adjustment disorder, anxiety, agoraphobia and coping strategies to deal with life’s stressors; and
b)compliance with any medication prescribed by his treating medical practitioners; and
c)abstinence from excessive consumption of alcohol; and
d)compliance with any recommendations by the children’s counsellors.
[11] Exhibit A
Historical matters
In order to understand the reasons underpinning the Independent Children’s Lawyer’ identification of these issues as those which, in a sense, prevent support for unsupervised time being proffered now, it is necessary to have regard to a number of historical matters.
In 2002 the father was involved in a fatality during the course of his employment He was subsequently diagnosed with delayed onset Post Traumatic Stress Disorder in 2006 - a subsequent diagnosis of Cushing’s Disease (which is said to result in high levels of cortisol, leading to mood and behavioural changes[12]) apparently casts some doubt upon the accuracy of this diagnosis. It is unnecessary to resolve this issue because, whether as an (understandable) result of the 2002 event or the effects of Cushing’s Disease (or a combination of both), the father appears to have used alcohol over many years to self-medicate against his feelings of anxiety and depression.
[12] Paragraph 40, Family Report dated 15 November 2013.
Additionally, whether as a consequence of the effects of the 2002 event or the existence of Cushing’s disease, the mother says that, after the 2002 event the father suffered from “incredible” mood swings – that is, whilst previously present, these worsened and resulted in behaviours like: ignoring her and the children; locking himself in his room; sleeping for the entire day, drinking heavily and staying out late and removing himself from interaction with other members of their household.
Despite these behaviours and others she alleges the father engaged in during their relationship, the mother facilitated the children spending time with their father after separation in August 2011. From about this time until about early February 2012, all of the children spent time with their father: as D (then about 18 months of age) was cared for by the father’s grandmother (with whom the father was living) for about four hours a day, five days a week, the father spent daily time with him. He also spent unsupervised time, albeit on a less regular basis, with both B and C.[13]
[13] Affidavit of Dr H filed 30 October 2013, at page 21.
The mother’s evidence is that, had the father sought additional time with both B and C in this period, she would have supported this: that is, her case is that the somewhat sporadic nature of the two older children’s interaction with their father between August 2011 and about February 2012 was a consequence of his withdrawal from them and not because of decisions she made.
The parties participated in a counselling session at Relationships Australia on 2 February 2012. After this event, police applied for a Protection Order (in respect of which the mother was the aggrieved person) and the mother ceased the children’s time with the father for a period.
Whilst I am unable to determine specifically when it occurred, it seems that the children ‘subsequently’ or ‘thereafter’ resumed spending unsupervised time with their father. This time occurred on an overnight basis. Whilst there is evidence that it was approximately every alternate weekend (with changeovers occurring via the police station)[14], the account provided to Ms G suggests that it encompassed approximately two overnights per week, with some variation due to the father’s work roster.
[14] Affidavit of Dr H filed 30 October 2013, at page 38
A temporary Protection Order was made in June 2012.
On 13 December 2012, a final two year Protection Order was made after a hearing during which the mother claimed, amongst other things, that she had been sexually assaulted by the father and that previously, in the presence of the children and his sister, he had pointed his service revolver at her. Both of these matters are denied by the father.
The father lodged an appeal in relation to the Protection Order. This was successful and resulted in the duration of the operation of the Order being reduced to 15 months. It ceased in about April 2014. No further order has been made.
The mother ceased the children’s time with the father on 13 December 2012. She says she did so because the father made what she considered to be threatening posts directed toward her on his Facebook page. The father, however, asserts that she did so because, during the hearing of the domestic violence application, she became aware he had commenced an intimate relationship.
On about 22-23 February 2013, the father decompensated: he became extremely intoxicated, verbally abusive and aggressive. On 23 February 2013, he was voluntarily admitted to I Hospital for 11 days. This admission appears to have been consequent upon him suffering depression - during it, he was also prescribed naltrexone to address alcoholism.
In March 2013, the father saw Dr J, a psychiatrist appointed by his employers to assess his capacity to return to work. Dr J diagnosed alcohol dependence. The father later attended upon Dr K, a psychiatrist, who – in July 2013 - considered he could make a graduated return to work.
On 13 September 2014, during a supervised visit, the father showed the children images stored on a USB he says was prepared by a family member (or members) for use at his 40th birthday celebration that evening.
I am not persuaded it is likely that the father was responsible for the preparation of the images stored on the USB. I accept that he had not viewed it until he showed it to the children. His decision to show the children the images on the USB without first viewing its contents was very unfortunate because these included an adulteration of their parents’ wedding photo such that their mother’s head was replaced with a ‘bullet hole’ sticker.[15]
[15] and of the children's aunt in the same manner
When the mother became aware of what had happened during this visit, she reported this to the police. The children were interviewed. Their time with the father ceased.
The children did not spend face-to-face time with their father again until 8 May 2013 when they all participated in an interview conducted by a Family Consultant for the purpose of preparing a Memorandum to Court. Their next face to face time with him occurred under supervision in about April/May 2014. I accept that, from about 26 August 2013[16] onwards, the father attempted to communicate with the children twice per week by telephone. I also accept that this communication was attended by difficulties.
[16] Order made that day.
The children and the mother were interviewed by Ms G on 17 October 2013. She interviewed the father on 29 October 2013. Her observations and conclusions arising from this interaction and the information provided to her at this time are contained within the first Family Report, dated 15 November 2013. Her first report outlines her conclusions, which I accept, that the material available at that time strongly suggested the father:
a)had a lengthy history of mental health instability - with a past diagnosis of PTSD which was considered to be resolved and a current diagnosis of an adjustment disorder with depression and anxiety; and
b)appeared to have engaged with appropriate psychiatric care.
The father was asked to leave a local sports club on 21 February 2014. He denies this occurred because he was intoxicated and/or aggressive or inappropriate in his interactions with an off duty staff member. He asserts that after an interaction with the staff member (who was known to him), he was asked to leave because she was engaged in celebrations. He denies being intoxicated on that occasion.
Each of the father’s account is not accepted, there is no evidence that there has been a repeat of the behaviours he is alleged to have engaged in on that occasion.
On 27 March 2014, the acting Principal Registrar ordered that the children spend time with the father for two hours each fortnight at a Contact Centre located in their home city. At the time the Order was made, the father undertook that he would not consume any alcohol within 12 hours before any time he spent with the children at the Centre. There is no evidence to suggest he has breached this Undertaking.
From about April/May 2014 until mid-September 2014, the children spent at least some time with their father at the local Contact Centre. His evidence that they (the children) interacted well with him during this time is corroborated (to some extent at least) by the succinct evidence given by ‘Ms L’[17]: when asked to outline her observations of the children’s interaction with their father, she said “fine”.
[17] The team leader responsible for overseeing the supervision at the times the children attended there.
Whilst the content of the Centre records is limited and the position was not substantially improved by ‘Ms L’s’ evidence, I am comfortable in concluding that, considered within the limits imposed by supervision, the children’s time with the father was, in fact, ‘fine’.
On 23 October 2014, the Principal Registrar varied the 27 March 2014 Order to provide that the boys spend time with their father at the Contact Centre for one hour each fortnight. Other than to say that, on at least some occasions the children did not attend this time - for one reason or another - it is very difficult on the evidence advanced by the parties to determine precisely the time the children spent with the father after this date. However, as noted earlier, at the date of hearing this time was occurring and, according to ‘Ms L’, D plays happily and interacts with the father whilst C interacts with him in a teasing kind of way.
Ms G interviewed the parties and children again on 11 September 2014. She also spoke with the parents by telephone later that month. Details of her observations, conclusions and opinions arising from these interactions are contained in the second Family Report, dated 1 October 2014.
In September 2014, the father told Ms G he had last seen his psychiatrist in July that year and was not continuing to do so because he had been told this was no longer necessary.[18] He reported a reduction in his antidepressant medication and said he could not recall the last occasion on which he had experienced a depressive episode.
[18] Paragraph 47, Family Report dated 1 October 2014.
The father’s evidence during cross-examination was that he continued to attend upon his general practitioner (who continued to prescribe his antidepressant medication) and had arranged to attend upon his psychiatrist shortly after the hearing concluded.
Whatever the conclusion about the manner in which it is in the children’s best interests to interact with their father, I am persuaded he should be required to continue to engage with his supporting medical practitioners in the manner they determine to be appropriate for his ongoing therapeutic support and, similarly, that he should be required to comply with his treating medical practitioners’ reasonable treatment directions.
The benefit to the children of having a meaningful relationship with both parents
The evidence given by Ms G about the boys’ relationship with the father supports my conclusion that there is a benefit to the children of being afforded the opportunity to have a meaningful relationship with their father. So much is – in one sense at least – conceded by the mother’s proposal that they spend time with him (albeit on a supervised basis) and communicate with him via Skype.
I accept Ms G’s evidence to the effect that, whilst C had previously expressed a willingness to spend time with the father during the first Family Report interviews in 2013, his interaction during the September 2014 interviews suggested that he was then experiencing what she described as ‘a loyalty conflict.’ I accept that D will benefit from having a positive relationship with his father and the opportunity to develop this. I note the mother told Ms G she saw some benefits for him in having a relationship with his father.
I consider that the likelihood of the children being able to develop a meaningful relationship with their father during ongoing supervised time is significantly diminished as a result of the limitations inherent in such time. The limitations are, it seems to me, amplified given C’s age and the about seven year age difference between the two boys. Given these two factors, I consider it highly likely the father has experienced some difficulties in ‘entertaining’ and interacting with the children within the confines of the Contact Centre. I also consider it highly likely that it will be extremely difficult for the father to be able to engage in activities suitable for both children within the confines of supervision on a long-term basis and for the children (particularly C given his age) to be engaged in time at the Contact Centre on a long term basis.
The deleterious impact of the limitations inherent in supervision on the children’s opportunity to continue to develop a meaningful relationship with their father is, I think, highly likely to be further amplified because of C’s attitude to attending at the Contact Centre. He has clearly started to manifest reluctance to spend time with his father because of his increasing reluctance to continue to attend at the Contact Centre. I arrive at this conclusion in the context of evidence that, in October 2013 – before supervised time had commenced – B thought supervision “weird” and “awkward” (because someone else was always present) and, that, in September 2014 – by which time the children had had the experience of spending supervised time with the father at the Contact Centre – matters had reached a point where both B and C hated it.
The combination of these factors compels my conclusion that it is more likely than not that a continuation of supervision of the children’s time with the father on a long-term basis will be more likely to result in stultification and/or, potentially, erosion, of their existing relationships with him rather than an improvement and/or solidification of the same.
Given these conclusions, I consider that the ongoing imposition of supervision over the children’s time with the father can only be justified as being in their best interests if the evidence persuades that this is necessary to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: that is, if it is necessary because without it they will be at an unacceptable risk of harm.
Are the children at an unacceptable risk of harm if they spend unsupervised time with the father?
As noted above, there is no evidence that the children have ever been physically harmed by the father.
In explaining her decision to cease the children’s time with the father in December 2012, the mother told Ms G that her “gut instinct” told her the children were not safe with him. She arrived at this feeling because of what she perceived as implied threats (for example, “justice will prevail”) expressed by the father via Facebook. She also anticipated – correctly – that he would react strongly when the Protection Order was made.
The father told Ms G that the Facebook entries were aimed at fellow officers who had been witnesses against him in the domestic violence trial and whom he felt had told untruths.[19] Whilst it may be that the father’s Facebook postings were also directed at the mother, the evidence clearly establishes that there has been no action taken by the father – other than via complaints to various authorities – to action his threats.
[19] Paragraphs 69 and 70, Family Report dated 15 November 2013.
I accept that, when the Protection Order was made, the father made comments to the effect that he was not suicidal but homicidal - he made threatening comments directed to the presiding Magistrate and the police officers involved in his prosecution. I accept that, on occasions, when affected adversely by alcohol, the father has engaged in behaviour ranging from immature and childish to aggressive. I further accept he did not comply with the Independent Children’s Lawyer request to engage in CDT testing.
During her first interview, the mother told Ms G she was concerned for the children’s safety if they had any unsupervised time with the father or if it was supervised by paternal family members who she sees as “enmeshed” in his lies. She said she would not comply with any order which provided for time outside a Contact Centre because she believed the children could be at risk: she expressed a concern that the father would “get back at me”; she said she was scared he would do something to the children to “get back” at her.[20]
[20] Paragraph 26, Family Report dated 15 November 2013.
These expressed concerns need to be considered in circumstances which establish that despite:
a)the close physical proximity of the parties since their separation; and
b)the father’s ongoing knowledge of the children and mother’s location since separation; and
c)the children’s unsupervised time with him on occasions between August 2011 and December 2012; and
d)the aggressive and threatening remarks he made when the Protection Order was made and thereafter; and
e)the stressors to which he was subjected prior to his discharge from his previous employment,
f)his long-standing, significant and entrenched hatred and anger toward the mother,
there is nothing to suggest that the father has ever done anything physically harmful to the children. He has had every opportunity to ‘do something’ to them or harm them – or the mother - at any time since the parties separated in August 2011 and he has not done so, even during periods of time when he has manifested aggressive behaviours toward others.
I also note that, during her 2014 interview with Ms G, the mother expressed ‘very strong fears’ that the children were not safe with the father even if their time was supervised by family members, spoke of news items where men murder their children and wives during family law proceedings and suggested that the evidence pointed towards the father doing this.[21] For the reasons I have already expressed, I am not persuaded that the evidence in fact points toward the father acting in such a manner.
[21] Paragraph 81, Family Report dated 1 October 2014.
I take into account that, in explaining her decision to permit the children to spend unsupervised time with their father until December 2012, the mother told Ms G she was sufficiently reassured the children would be protected because she knew the paternal great grandmother would look after them, her home was “Grand Central” (in that it is visited constantly by other members of the paternal family) and she did not want to be seen by a Court as failing to facilitate the children’s relationship with the father.[22]
[22] Paragraph 66, Family Report dated 15 November 2013.
Further, given that the mother was, in late 2013 less concerned about B and C spending time with the father (because she viewed them both as able to self-protect), a logical conclusion is that it is more likely than not given the passage of time, that C may well be even more capable of “self-protection” during any unsupervised time with his father in the future.
Dr H interviewed the father on 23 September 2013 and the mother on 11 October 2013. The report he prepared after these interviews contains his opinion that the father suffered from an adjustment disorder, with depressed and anxious moods in relation to the breakdown of his marriage, coupled with gambling and drinking. At that time, Dr H considered the father’s treatment should involve antidepressant medication and monthly reviews with a treating psychiatrist.[23]
[23] Paragraph 47, Family Report dated 15 November 2013.
Whilst I accept Dr H’s evidence in so far as it relates to his psychiatric assessment of each of the parties, I am not persuaded to place particular weight upon matters not within his expertise. For example, whilst his opinion that any increase in the children’s time with the father should be at the court’s discretion based on the father’s compliance, “stable demeanour”, and appropriateness with respect to his relationship with the children’s mother[24] is noted, such a conclusion is not, it seems to me, within the purview of his expertise beyond the extent to which it relates to his assessment of the father’s psychiatric/mental health functioning.
[24] Affidavit of Dr H filed 30 October 2013 at page 30.
Having regard to the comments expressed above, to the extent that it is necessary to do so, I record that, whilst Dr H gave evidence that, given the stressors to which the father is currently exposed, it is unwise for the children to spend time with the father in an unsupervised and uncontrolled environment until the effect of these stressors upon his behaviour are explored and/or managed, the father’s residence (“Grand Central”) does not seem to me to be an unsupervised and/or uncontrolled environment.
Further, whilst Dr H expressed reservations during his oral evidence about the father’s stability given existing stressors to which he (the father) had been exposed more recently and in light of information not available to him at the time of interview, he has not observed the father since September 2013.
I accept Dr H’s evidence that the recent increase in the father’s medication may be reflective of an increase in anxiety. It seemed to me that he accepted that the father’s primary health care provider had decided, following discussions with the father and his reported symptoms, it would be appropriate to increase his dose of Cymbalta again. Nothing in his evidence suggested this was an inappropriate response.
I accept that is more likely than not that the father’s decisions to engage in litigation in various forums and his involvement in the creation of a website advertising services designed to support others in litigation and/or in making complaints about serving police officers may well add to his stressors. However, the fact that a parent engages in litigation or exercises the democratic right to make statements critical of authorities does not, of itself, mean that such a parent presents an unacceptable risk to their children or that they are incapable of caring appropriately for their children on an unsupervised basis.
Whilst Dr H stated during cross-examination that, in circumstances where, as a result of his exposure to stressors the father locks himself in his room on occasion, it would be “unwise” for the children to spend unsupervised time with the father until these presentations were explored and/or managed, this ignores the reality of the father’s home as “Grand Central Station”. I consider that the environment of the father’s home seems likely to support the children in their interactions with their father.
Additionally, I accept as highly likely that at least some of the matters from which the father is absenting himself by time alone in his room may well be requests by family members about the children and his time with them – matters which may well diminish in the event the children are afforded the opportunity to spend additional unsupervised time with him and, thereby, to interact more readily with members of their extended paternal family.
I accept Dr H’s evidence that he is pleased the father intended to see Dr K again. That he had even thought to organise an appointment seems to me to be somewhat indicative of some appreciation that this might assist him.
Given the duration of the time the father proposes the children spend with him, the possibility that his capacity to be emotionally available to them during their interactions may be impaired as a consequence of the stressors of his life does not seem to me to be significant: after all, he will have more than enough time to devote himself to the pursuit of justice as he sees it when they are not with him.
I am not persuaded that the father’s involvement in SRL Legal Consultants means that the children will be at an unacceptable risk of harm if their time with him occurs on an unsupervised basis. Whilst “passionate” engagement in this venture may well avert the father’s attention to some extent, it cannot be forgotten that his proposal is simply that the children eventually spend alternate weekend and half school holiday time with him. Taking the mother’s case at its highest about this issue, I consider that, even if the father was distracted because of his passionate engagement in this interest, such diversion would mean only that the children were deprived of the full opportunity to enjoy their father’s full attention during their time with him and not that they would be at any risk of harm during unsupervised time.
Whilst I accept Dr H’s evidence to the effect that it may not be beneficial for the father’s long-term functioning for him to continue to be involved with persons engaged in their own litigation – because it runs the risk that it will continue to emphasise and re-emphasise his sense of grievance and lack of fairness and will continue to reacquaint him with and place him in a situation where he is going over and over these issues – this does not mean that they will be at an unacceptable risk of harm in his unsupervised care. Nor does it necessarily mean that they will not benefit from the opportunity to spend unsupervised time with him.
I accept Dr H’s evidence that it is relevant that, in dealing with the stressors to which he was subjected at the time of the hearing, the father had acted to withdraw from the situation rather than to confront it. I accept that this is suggestive of his functional capacity to be more measured in his responses to stressful situations than has previously always been the case. I also accept that the father’s more recent withdrawing response may suggest he has developed a better way of managing his sense of anxiety or distress when confronted by particular circumstances. I accept this also means that it is more likely that, if the children are with him when he experiences anxiety and/or distress arising from a particular circumstances, there is a reduced chance of him engaging in confrontation and aggression and, consequently, a reduced chance that the will be exposed to the same.
I accept the tenor of Dr H’s evidence that the father needs to continue to see Dr K or some other psychiatrist who can monitor his mental state functioning, talk with him, and help him work through his levels of anger and distress at the nature of the circumstances of his life. I also accept that the father – and, therefore, the children indirectly – will benefit if he continues to comply with the reasonable directions of his treating medical practitioners and if he continues to refrain from consuming alcohol whilst the children are in his care.
I am not persuaded the contents of the blogs created by the father mean that the children will be at an unacceptable risk of harm if they spend unsupervised time with him. Criticisms of the Family Court or other institutions does not inevitably lead to a conclusion that a parent represents an unacceptable risk to their own children. Whilst concern has previously been expressed about the manner in which the father would manage a cessation of his employment, I consider that he seems to have been working toward, expecting and adjusting to this circumstance. It is clear he has had a significant period of time over which to come to accept the reality of his situation.
I do not accept that any thoughts of “revenge” held by the father against people in the workforce in respect of whom he had formed adverse views means that the children will be at an unacceptable risk of harm if their time with him is unsupervised. He clearly has held adverse views about his previous employer service and some of its employees (to use but an example) for a not insignificant period of time. The reality is that, despite his views, thoughts about previous colleagues, attitude toward the Court and his employers, there is no evidence whatsoever to suggest that he has in any way acted to harm the children or place them in situations of harm when they have been in his unsupervised care or when their whereabouts have been known to him.
I accept that, in late March 2015, the father wrote the following in a blog: “someone will soon find themselves in a world of hurt”. He was referring to the mother. Whilst clearly immature, I am not persuaded in the circumstances of this case, that this comment amounts to a threat that he would physically harm her.
For the reasons outlined above, I am not persuaded on the evidence that, provided the father continues into the future to engage with his general practitioner (and if referred, with a psychiatrist) and refrains from the consumption of alcohol whilst the children are in his care, the children will be at an unacceptable risk of harm if their time with him is unsupervised.
The children and their views
When Ms G first spoke with the older children in October 2013, B was just over 14 years of age, C was a little over 11½ years of age and D was nearly four years of age.[25]
[25] Given his age, Ms G did not formally interview him at that time.
At that time, B – who Ms G assessed as appearing mature for her age – told Ms G “very tentatively” that she would be worried about the safety of all of the children if they were spending time with the father because, whilst he had not harmed them in the past, it “could happen”.[26] C presented as anxious, reserved, polite and pleasant during his interview in October 2013 for the first Family Report. He did not express any safety concerns to Ms G about his father. Further, when asked directly, he said he did not know why he was not seeing his father, missed him a bit, but was not angry or upset by not seeing him.[27]
[26] Paragraph 84, Family Report dated 15 November 2013.
[27] Paragraphs 97 and 98, Family Report dated 15 November 2013.
Ms G considered – and I accept – that, as at October 2013, C seemed open to spending time with the father. In fact, his willingness to interact with his father seems to me to have been more strongly expressed than that: in fact, he suggested he could go over to his great-grandmother’s house for a weekend and he thought the visits could continue on alternate weekends.[28] I accept Ms G’s conclusion that C then seemed keen to renew his relationship with his father.[29] I note also that, at that time, the mother acknowledged C probably missed visiting his father.[30]
[28] Paragraph 100, Family Report dated 15 November 2013.
[29] Paragraph 132, Family Report dated 15 November 2013.
[30] Paragraph 105, Family Report dated 15 November 2013.
Ms G observed the children again in September 2014 and interviewed the two oldest children.[31] At this time, B (who was in Grade 10) said she did not like attending the Contact Centre: it was “boring” and there were mainly little children who attended there. She also expressed her view that she should not be directed to see her father and that all three children should be able to choose whether to see him or not. B told Ms G she did not want to see her father; she said he “doesn’t mean anything to me, don’t think of him as a father.” Her resistance to seeing him seemed fairly evident to Ms G.[32] B also rejected the prospect of spending time with her paternal great grandmother (on the basis that she had not had much to do with the children since separation) but said she wanted to spend time with a paternal aunt (who had supported her mother during the post-separation process and these proceedings).
[31] But not D due to his age.
[32] Paragraph 97, Family Report dated 1 October 2014.
After interacting with her, Ms G thought it clear that B had read and was aware of some of the content of the affidavit material and regarded most of it as “lies”. As already mentioned, the mother’s evidence during cross-examination was that she gave B the material to read in the car as they travelled to the interview with Ms G. The mother’s decision to provide B with a copy of the paternal grandmother’s affidavit in this manner is, I consider, a clear demonstration of her inability – or unwillingness - to shield B from the proceedings and also a clear demonstration of her willingness to seek to enlist B to support her.
I concur with Ms G’s assessment that B’s remarks during the aspect of the interview (which canvassed her attitude to members of her extended paternal family) suggested she had been drawn into the parental dispute by her mother. I also conclude, as a consequence of the way in which the mother decided to inform B of the contents of her grandmother’s affidavit, that the views she espoused to Ms G cannot reliably be regarded as her own, independent views.
At the time of his second interview with Ms G, C was in Grade 7. He was not forthcoming when speaking with her and seemed very uncomfortable speaking about his family. He said the visits at the Contact Centre were “boring”, with nothing to do and sometimes “bad” when he had something else to do with friends. He reported limited telephone communication with the father because there was nothing to say. C made some comments about wanting to choose whether he attended the Contact Centre and not wanting to go there because he was not happy and it was a waste of time – he said if he was allowed to choose, he probably would not attend visits. When Ms G asked him about attending at the grandmother’s home, he said there was nothing to do there and it was “pretty hot”. I accept Ms G’s assessment that C appeared to be looking for reasons to support his expressed contentions.
When Ms G asked him about whether he would feel there were any issues with safety, he said “probably, don’t know, not sure.”[33] He was clearly aware that his mother did not want him to go to the Contact Centre and that she held this view because of “safety or something”.[34]
[33] Paragraph 104, Family Report dated 1 October 2014.
[34] Paragraph 106, Family Report dated 1 October 2014.
The children’s relationships with each of their parents and others
As at October 2013, Ms G thought B did not present as overtly aligned with the mother and critical of the father; rather, she appeared fairly detached in her attitude to him – an attitude which Ms G thought may have reflected her limited engagement with him in the past. Despite this, Ms G assessed that, at that time, she was open to having a relationship with her father[35] even though – from her perspective – he had been “not such a good dad”. Ms G assessed this latter comment as more likely reflecting B’s own experience of a disengaged father rather than exposure to, and a mirroring of, her mother’s attitude.[36]
[35] Paragraph 88, Family Report dated 15 November 2013.
[36] Paragraph 130, Family Report dated 15 November 2013.
I accept Ms G’s evidence, as at October 2013, that whilst C was strongly bonded with his mother, he also seemed bonded with his father and oriented to the rest of his paternal family – including cousins. I further accept her evidence that, at that time, it appeared D was quite attached to his paternal great grandmother, who had been a supportive factor for him when spending time with the father.[37]
[37] Paragraph 133, Family Report dated 15 November 2013.
Ms G reports that, during the observed session in late 2014 between the father, the paternal grandmother and the children, the children appeared to be taking a deliberate approach to distance themselves: they made minimal responses to questions and also made some critical comments. The older two children were gratuitously rude.[38] Their behaviour clearly affected D because, despite having initiated sitting on his father’s lap and interacting in a chatty manner, he later acted out with some aggression by throwing items around the room.
[38] Paragraph 111, Family Report dated 1 October 2014.
Parental attitudes and behaviours
The father told Ms G in October 2013 that he was no longer agreeable to supervised visits at a Contact Centre.[39] He was adamant in expressing this view on the basis that there was no justification for such a proposal. Ms G records him telling her that he would rather wait until the children were 18 years of age than attend supervised visits with them.[40] Ms G considered that such an attitude “raised questions” about the father’s level of commitment to having a relationship with the children.
[39] Paragraph 5, Family Report dated 15 November 2013.
[40] Paragraph 28, Family Report dated 15 November 2013.
Whilst he expressed such an attitude, the father has complied with orders which provided for supervised time. Consequently, the questions raised about his level of commitment to having a relationship with the children must be answered in light of his actions.
The mother told Ms G in October 2013 that she had told the children their father drank and was “funny in the head” but had otherwise not provided them with much detail. She referred to him telling the children he had stopped drinking but said the children had seen photos on Facebook in which it appeared he continued to drink alcohol.
I accept Ms G conclusion that the mother’s account to her suggested that the children were exposed to the parenting dispute and to the mother’s concerns about the risk to them from the father.[41]
[41] Paragraph 110, Family Report dated 15 November 2013.
Whilst the mother was adamant that the children’s time with the father occur on a supervised basis at a Contact Centre, Ms G considered in October 2013 that there was little to support such occurrence. She recounts – accurately – that there is no evidence that the children have been harmed by their father, that there was no estrangement between them and that the children were open to having telephone communication with him. She noted that the children did not raise any specific safety concerns or objections to spending time with the father and seemed, at that stage, to have some connection with the extended paternal family. Ms G also noted that the two oldest children were old enough to be self-protective and had the capacity to report any concerns. She recounted that the Contact Centre would be a very constrained environment for older children to spend time with a parent.[42]
[42] Paragraphs 143 and 144, Family Report dated 15 November 2013.
The mother told Ms G in 2014 that she had to force the children to answer the telephone and force them to attend supervised time at the Contact Centre. She expressed her opinion that the father had never had a relationship with the children and she did not regard them as having any attachment to him. She said she thought it was “ridiculous” that the older children had to attend supervised time and that, whilst D liked playing there, he did not know the father “as a daddy”.[43]
[43] Paragraph 24, Family Report dated 1 October 2014.
During the 2014 interview process, the mother initially expressed a view (in front of the children) that they would not be seeing their father and grandmother that day as they could only see them at a Contact Centre.[44] Whilst she subsequently accepted that the children could be observed by Ms G with their father and grandmother for the purpose of the report, there could be little doubt that her comments clearly reminded the children of her views about and attitude toward their father.
[44] Paragraph 56, Family Report dated 1 October 2014.
I accept that when she spoke with Ms G for the second time, the mother appeared very angry toward the father, was very critical of him and wanted him punished. She outlines that she had pursued the decision not to pursue criminal charges against him (arising out of the allegation that he pointed a revolver at her, made a death threat and sexually assaulted her) and passed this onto the Crime and Misconduct Commission and the Council for Civil Liberties and she said she was hopeful he would be charged and also charged with perjury.[45]
Each parent’s attitude toward the children’s relationship with the other and members of their extended families; capacity; attitude to parenthood paternal family
[45] Paragraph 79, Family Report dated 1 October 2014.
The mother told Ms G in October 2013 that she was adamant that members of the paternal family would not provide sufficient protection for the children if they were to spend supervised time with the father. In September 2014, she said she was adamant she would not allow the children to spend time at the home of their paternal grandmother (because of the paternal grandfather) or at the home of the paternal great grandmother because the father lived there.
She expressed her opinion that the paternal grandmother was unable to protect the children against the father and had supported her sons whilst condemning their domestic violence. She accepted that this expressed attitude was inconsistent with her previous behaviour, both before and after separation, in leaving D in the care of the paternal great grandmother (with some help from the paternal grandmother) whilst she worked. I am not persuaded that she had no choice about D’s care arrangements after separation.
The mother’s current antipathy towards the paternal grandmother’s interactions with the children appears to be based significantly upon the fact that, at one time, the paternal grandmother sought that the children live with her.
I accept Ms G’s assessment of the mother, as outlined in the second Family Report, that she presented as a competent and committed parent who appeared to have been unable to quarantine the children from the parenting dispute.[46]
[46] Paragraph 118, Family Report dated 1 October 2014.
I accept Ms G’s evidence that, during her second assessment, the older children made belittling comments towards their father during the observation period and repeated criticisms their mother had previously made. I also accept as more likely than not that the mother’s clear contempt toward and lack of respect for the father is now being mirrored in the children’s behaviour. I accept Ms G’s evidence about the detrimental effect this is likely to have on the children’s individual sense of identity.[47]
[47] See: Paragraph 120, Family Report dated 1 October 2014.
The mother denies any responsibility for the children’s observed reserve in interacting with their father or, by inference, the change in their position and/or attitude toward the father as expressed to Ms G during her interviews. However, the following examples of her behaviour provide the basis for my conclusion that she has acted in a manner likely to undermine their relationship with him:
a)during the interviews for the second Family Report she said, in front of the children, that they would not be seeing their father and grandmother that day because they could only see them at the Contact Centre; and
b)she has listened into at least one of C’s Skype conversations with the father by listening through the door and/or standing in the doorway; and
c)during the car trip to the interview for the second Family Report, she gave B the paternal grandmother’s affidavit to read and told her to look at it: an action which, in my view, provides further context to B’s behaviour during that interview and the statements she then made to Ms G; and
d)she discussed the contents of the first Family Report with B: she appears to have raised with the child that she had not told Ms G that it should be her choice whether to see her father or not and, when B told her she had done so, her mother told her, in essence, that was not how Ms G had interpreted it; such a conversation is more likely than not to have emphasised to B the need for her to express her view to Ms G in the manner recorded in the second Family Report; and
e)she clearly permitted B to think it was the paternal grandmother’s “fault” that she (B) was unable to attend a camp because she had to participate in the interview for the second Family Report; and
f)when C told her he did not want to go to the Contact Centre, she told him that she did not want him to go if he did not want to go, but that he had to and that he should be able to feel safe there; and
g)she deliberately failed to give the children the letter written by their father apologising for the September 2014 event at the Contact Centre.
During the course of his cross-examination, the father repeatedly referred to his hatred for and anger toward the mother. He was clear in telling the Court he wishes to have nothing further to do with her. From his perspective, he has positively implemented this desire by consenting to an order that she have sole parental responsibility for major long term issues relating to the children – he explained such an order will eliminate the requirement that he and the mother interact or communicate in any way.
As already mentioned, the father showed the children a USB/DVD containing family photos during their interaction with him at the Contact Centre on 13 September 2014. This device contained the photo of the mother already discussed, as well as a photo of the father with a blow up doll and one in which he was wearing only a Drizabone and holding a cowboy hat to cover his genitals. I accept that it would have been prudent for the father to have viewed the contents of the recording before showing it to the children so as to eliminate the possibility that it contained images that were inappropriate for them to see.
Ms G records in the first Family Report that it seemed accepted the father was not physically violent to the mother during the relationship. However, the mother reported a long history of emotional abuse by the father (manifested by threatening, emotionally abusive and controlling behaviour and the use of derogatory and belittling language toward her, including in front of the children.)[48] The father did not deny these assertions to Ms G but asserted that both parents engaged in belittling behaviour and name-calling of the other. The mother acknowledged that at times she would “give back, to appear strong, otherwise I’d curl up and die.”[49]
[48] Paragraph 60, Family Report dated 15 November 2013.
[49] Paragraph 61, Family Report dated 15 November 2013.
Having spoken with the parties in October 2013, Ms G concluded in the first Family Report that the relationship between the parties seemed very acrimonious. On the evidence of each party, this seems to be something of an under-statement.
During the September 2014 interviews with Ms G, each parent expressed a wish not to see the other at the interviews and conveyed to Ms G that they do not have any face-to-face contact at present and do not communicate.
I accept her assessment that their relationship continues to be acrimonious. Each clearly strongly mistrusts the other’s motivations. Each remains acrimonious toward the other.
Whilst the father did not hesitate to make his disdain for and dislike of the mother known to the Court during his cross-examination, it should not be thought that the mother’s attitude to him is any less critical. It is clear she continues to think he should have been charged with perjury. She has also made complaints and/or provided information to authorities about the father asserting fraud and an alleged breach of the temporary protection order: when investigations concluded that this assertion was not made out, it appears her mother lodged a complaint against the police who investigated the alleged breaches of the temporary protection order. Additionally, in early 2014, the mother made a complaint and/or contacted police to say that, during the relationship, the father was let off when caught drink driving; in December 2014, she contacted the police to lodge complaints about the father and to place on record that he was driving past the house - this complaint occurs in the context of the mother’s own evidence that she and the children regularly drive past the street in which he lives.
Further, it appears that the maternal grandmother has previously emailed the father’s previous employer and members of parliament about his behaviour: allegations made against him include, it seems, that he attempted to have relationships with girls who were the same age as his daughter (who was then 14 years of age).
Consideration of the time it is in the children’s best interests to spend with their father
Whilst it is unnecessary to do so, I record that my determination as to the manner in which the children should spend time with their father into the future has nothing to do with any idea that the mother is being “punished” or that the father is being rewarded or compensated for past events.
I accept Ms G’s evidence that the father’s behaviour historically when consuming alcohol to excess has been of concern. I also accept that, during any time the children spend with him, he should refrain from the consumption of alcohol. There is no evidence from the Contact Centre to suggest that the father failed to abide his undertaking about restraining from consuming alcohol or that he has been under the influence of alcohol during any time the children have spent with him there: this persuades me that he is capable of limiting his alcohol consumption to periods when the children are not in his care.
I also accept Ms G’s evidence to the effect that the children will benefit from the involvement of the paternal family during time they spend with the father – given that he lives with the paternal great grandmother in a residence excepted to be “Grand Central”, I am satisfied that the children will be supported by the presence of members of the extended paternal family during unsupervised time with their father.
I also accept the tenor of the evidence given by Ms G to the effect that C is old enough to “self protect”. Whilst her evidence was to the effect that D’s time should be more limited, including to daytime time only and build up with the involvement of the paternal family to support the father, I take into account that he would be attending such time with his brother. I also take into account that both the paternal grandmother and the paternal great grandmother had previously been regarded by the mother as protective and supportive people. A mentioned, I consider that her change of attitude has arisen substantially as a consequence of their support for the father and potential involvement in proceedings themselves.
I accept that it was wholly inappropriate for the children to see the images on the USB played to them at the Contact Centre. I join entirely in concerns about the judgment of those who prepared those documents. I also accept the father’s evidence that as soon as he was practically able to, he ceased the playing of the recording after he had seen the content of it.
Whilst exposure to such an image was no doubt distressing for the children (or, at least, the older two), I take into account that when B spoke with police later that day, she told them (in essence) that she thought it was her father being stupid.
I accept Ms G’s assessment of C as a child who will likely do what an order requires. I consider the resistance shown by him to time with the father (as expressed during the second interview for the second Family Report) is more likely than not to be a consequence of the restrictions of supervised time. I accept the effect of Ms G’s assessment that C may well have expressed resentment and or anger as a consequence of having an operative having a limited opportunity to spend time with his father, particularly given that he appears to have had a close bond with him historically. I note her assessment that in 2012 he did not want the time to stop and wanted ongoing time with the father. Whilst he was more rejecting of his father during the second interview, I consider that this rejection must be considered in the context of his increasing awareness of that his mother’s clear antipathy toward the father and her point of view in relation to time between them - as well as a likely consequence of the constraints inherent upon spending supervised time.
I accept Ms G’s assessment that ongoing time with the father at the Contact Centre is unlikely to satisfy the child/father relationship and that, if supervised time continues, it is highly likely C will, in effect, actively disengage from his father. I accept he is unlikely to develop a meaningful relationship with his father if he continues to spend time supervised with him at the Contact Centre. I consider that, if time continues on a supervised basis at the Contact Centre, the almost inevitable consequence will be that C will refuse to continue to attend because it is highly likely he will increasingly find time there difficult and, I suspect, increasingly feel somewhat stigmatised.
I consider that time with the father outside the Contact Centre, with the likely supportive presence of members of the extended paternal family, is more likely than not to provide both children with the opportunity to continue to develop their relationships with their father.
As outlined above, I am not persuaded that the children will be at an unacceptable risk of harm if they spend unsupervised time with the father provided that he continues to attend upon his general practitioner (and psychiatrist if recommended by that practitioner) on a regular basis; and continues to receive treatment from such practitioner on an ongoing basis in the manner determined appropriate by that practitioner; and abstains from the consumption of alcohol during the time they are in his care.
Having taken into account Ms G’s evidence, I am persuaded that the children will benefit from the opportunity to spend unsupervised time with the father on an increasing basis: that is, their time should commence with a period of daytime visits only before progressing until they are spending overnight time with him each alternate weekend and during school holidays.
Given that they had been spending supervised time with their father at the Contact Centre at the time of the hearing, I consider it unnecessary for there to be any further continuation of this before the children start to spend unsupervised time with him.
The opportunity to participate in unsupervised time with their father will normalise the children’s interaction with him. Unsupervised time will also have the benefit of increasing the possibility that the boys can resume the ongoing development of their relationship with their father in a more relevant and meaningful manner. The children will also be afforded the opportunity to interact with members of their paternal family and to feel part of the “Grand Central Station” hub that is their paternal great grandmother’s home.
I consider that, such is the antipathy of the mother toward the father, the children will benefit from an opportunity spend increasingly longer periods of time with their father: this will provide them the opportunity to form their own views of him as a person and a parent.
Each of these parents hold great antipathy toward the other. The reality is that, whilst the mother is concerned the children will pick up on or be actively exposed to the father’s negative views about her if they spend unsupervised time with him, it is clear (for the reasons already outlined) they have already been exposed to her negative views of and toward him.
I note Ms G was not in a position to recommend overnight time. She said she was not prepared to do so until persuaded that daytime time was successful. However, she also thought it overnight time needed to happen – whilst not confident in recommending a timeframe within which this should occur, she certainly was clear in saying that it needed to occur eventually. Her recommendations were, on her own recounting, very slowly graduated.
I accept Ms G’s evidence that, realistically, if the children are to have a meaningful relationship with their father (as I have concluded is in their best interests) they need more than a bit of daytime time with him. I also accept, however, that there needs to be some confidence-building between the children and their father before overnight time starts and I have taken this into account in formulating the orders I have made.
I have deliberately determined an increasing regime of time between the children and their father in the manner provided for in the Order which I have made so that they have the opportunity to build confidence in their father, supported by the presence of other members of the extended paternal family who, on the evidence, visit the “Grand Central” residence in which he lives. I consider that the graduations of increasing time will permit the children to continue to develop confidence in their father and provide them with an opportunity to transition from the limited supervised time they have experienced to date.
In arriving at the graduations of increasing time, I have also taken into account the fact that the children have previously spent unsupervised overnight time in the care of the father in the same residence to which they will return. Additionally, I have taken into account that, before the parties separated, the children were cared for on occasion by members of the paternal family.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 February 2016.
Associate:
Date: 19 February 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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