Milner and Milner
[2016] FCCA 2254
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILNER & MILNER | [2016] FCCA 2254 |
| Catchwords: FAMILY LAW – Parenting order proceedings – family violence – psychological harm to the children – unchallenged expert reports – significant history of abuse of wife by husband – orders sought by wife made. |
| Legislation: Family Law Act 1975, ss.60CC(2A), 61DA, 61DA(2), 61DA(4), 65AA |
| Applicant: | MR MILNER |
| Respondent: | MS MILNER |
| File Number: | MLC 3672 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 1 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Ms Howe |
| Solicitors for the Respondent: | Wightons Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Glass |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders are discharged.
The Respondent wife have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2005 (‘the children’).
The children spend time with the Applicant husband, in the presence of the child Z born (omitted) 1998, as follows:-
(a)each alternate Sunday from 10:00am to 2:00pm;
(b)on Easter Sunday and Christmas Day from 10:00am to 2:00pm;
(c)on each of the children’s birthdays and their father’s birthday from 4:00pm to 7:00pm save where same falls on a weekend, then from 10:00am to 2:00pm; and
(d)such further and other times as agreed between the parties.
The husband undertake extensive counselling and/or therapy, at his expense with Ms L or such other therapist nominated by her to address the issues raised in the reports of Dr T, Dr S, Dr M and Ms K and the husband produce evidence of such satisfactory engagement and completion of same to the wife.
The Independent Children’s Lawyer provide to Ms L copies of any of the reports referred to in order 4 herein which have not previously been provided to Ms L.
Upon completion of the therapy referred to in order 4 herein, the husband attend upon Dr T, at his expense to obtain an updated psychiatric assessment and provide a copy of same to the wife’s legal practitioner.
The husband, upon production of the report referred to in order 6 herein, be at liberty to initiate proceedings for further time with the children.
The husband be at liberty to telephone the children on three occasions each week between 7:00pm and 7:30pm with the husband to initiate such a call save that the wife shall have the right to terminate the call should the husband engage in any family abuse towards either the wife and/or the children or either of them.
The husband be restrained from denigrating, belittling or threatening the wife in the hearing or presence of the children or either of them or allowing the children or either of them to be present when any third person is acting in such a manner.
Otherwise all extant applications are dismissed and the matter is removed from the list.
AND THE COURT NOTES THAT:
Pursuant to s.62B and s.65DA(2) 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 are set out in the Annexure and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Milner & Milner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3672 of 2014
| MR MILNER |
Applicant
And
| MS MILNER |
Respondent
REASONS FOR JUDGMENT
The Applicant husband filed his initiating application in Geelong on 14 March 2014. He sought at that time that the parties have equal shared parental responsibility for the three children of the marriage, Z born (omitted) 1998 (‘Z’), X born (omitted) 2003 (‘X’) and Y born (omitted) 2005 (‘Y’) (collectively ‘the children’). He sought further that the children live with the husband and the wife on a week about equal shared care basis.
In an amended initiating application, filed by the Applicant husband on 25 July 2014, the husband again sought that the parties have equal shared parental responsibility of the children but sought that the children live with him each alternate week from after school Thursday until commencement of school Monday and each other week from conclusion of school Thursday until commencement of school Friday, together with other special occasion and holiday days. Otherwise he sought the children live with the wife. Various other parenting orders were sought as set out in that application.
The Applicant husband also in the amended application sought property orders as between the parties, as the Respondent wife had in her response to the husband’s initiating application filed on 14 July 2014. She sought both parenting and property orders. At that time the property orders sought by the Respondent wife were not particularised. The wife sought that the children of the marriage live with her and spend time with their father on alternate weekends from the conclusion of school Friday until commencement of school Monday, together with one half of the school term and summer school holidays at times to be agreed, subject to the husband providing written confirmation to the wife four weeks prior to the holiday period of his availability.
The parties have appeared before the Court on many occasions during the currency of the proceedings. Throughout the children have lived with the wife. X and Y spent overnight periods of time with their father over many months following separation. They spent no face to face time with their father from December 2014 to early 2016. They spent supervised time with their father during 2016 and prior to trial. The child Z has become an adult and makes her own arrangements with her father. Final property orders were made by the Court on 11 November 2015. Those orders were made with the consent of the parties. At the same time further interim parenting orders were made which were directed to the undertaking of family therapy between the various family members. Those interim parenting orders were relevantly as follows:-
“…
12. Paragraphs 3 and 4 of Orders dated 16 December 2014 be discharged.
13. The parties and the children attend upon Ms L (sic) Ms L for the purpose of ongoing family therapy and the parties are to follow all directions and recommendations as made by Ms L.
14. The parties be at liberty to provide Ms L with a copy of all relevant court material filed on their behalf.
15. The Independent Children’s Lawyer be at liberty to provide Ms L with a copy of the family reports prepared respectively by Dr M and Ms K, the psychiatric assessment prepared by Dr T and the risk assessment and report prepared by Dr S, and further be at liberty to discuss this matter directly with Ms L.
16. The cost of the parties attendance upon Ms L (sic) Ms L be paid as follows:
a) The husband be responsible for the costs of his attendances upon Ms L (sic) Ms L and any attendances he has with Ms L (sic) Ms L and the children;
b) That the wife be responsible for the costs of any attendances she has upon Ms L (sic) Ms L and those of her attendances with the children; and
c) That the parties shall equally share the costs of any attendances required by Ms L of the children on their own.”
The mosaic mirror
The final property orders made on 11 November 2015 had annexed to them a document entitled Attachment “A”. In that document was a list of personal items to be made available by the wife for the husband’s collection from an agreed location. Sub-paragraph (k) of the attachment refers to “3 x paintings and 2 x mirrors including the (omitted).”
There is dispute concerning compliance with the above order. Although it was not a matter before the Court on the outstanding competing parenting orders applications, the husband required the matter to be agitated. In an affidavit sworn by the husband on 30 May 2016, and on which he relied in these proceedings, the husband said in paragraph 6 therein:-
“6. On the 13th of May 2016 myself, Mr J and Mr D arrived at the property ( (omitted) Victoria) to pick up my remaining belongings as per previous court orders. The respondent became unstable and aggressive on arrival and subsequently called police. The attending police officers convinced the respondent that she was obliged to provide access to my belongings as per court orders. With erratic ramblings, she reluctantly agreed and provided access. Attachment A of previous court orders item (k) identifies “3 x paintings and 2 x mirrors…”. Refer attachment Annexure A. The respondent failed to provide a mosaic mirror valued at $2,500.00, and said to Constable Ms R of the (omitted) Police Station that the mosaic mirror did not exist. I have provided the invoices detailing all of the (omitted) works that were stored at the (omitted) property. Refer attachment Annexure B.”
The husband sought that the mosaic mirror, he claimed to have not been handed over to him, be now handed over to him by the wife. The husband annexed to his affidavit a tax invoice said to be from (omitted) to (omitted), (omitted) Victoria. There is no date on that tax invoice document. Nowhere in his affidavit did the husband further describe the mosaic mirror.
The husband indicated at the commencement of the trial that he did not wish to cross-examine the wife. It was explained to him by the Court, that such an approach would leave the wife’s evidence unchallenged by him. He nevertheless determined that he did not wish to cross-examine her.
During the course of the husband’s own cross-examination, the husband indicated that he would in fact cross-examine the wife but only as to this particular issue, being the location of the mosaic mirror. The wife’s evidence was that she gave to the husband two mirrors in compliance with the orders. She was unaware of any other mosaic mirror in the house and indeed, when the husband subsequently described the mirror to her, the wife’s sworn evidence was that she has not seen a mirror of that description. I accept the wife’s evidence.
The mosaic mirror was purchased by the husband’s business and as such, would be expected to be located on the husband’s business premises. The wife’s evidence was that she has no mirror of the description given by the husband in the house and that, indeed, when the husband complained on the day to police officers, the wife invited them to come into her home and inspect the home in search of any other mirror that might satisfy the description of the mirror which the husband required.
I am satisfied that the wife has complied with the property orders and that she does not know the whereabouts and nor has she sighted the mirror to which the husband refers. There is thus no further order that shall be made by the Court in respect of the husband’s demand that the wife hand over to him an unknown and ill-described mosaic mirror which in all likelihood is at his business premises.
Children’s matters
By amended response filed by the wife and dated 27 May 2016, the wife sought sole parental responsibility of X (now aged 11 years and 10 months) and Y (now aged 9 years and 9 months). The child, Z, has now turned 18 years of age and the Court has no jurisdiction with respect to the making of any parenting orders for Z.
In addition to seeking sole parental responsibility and that the children X and Y live with her, the wife sought orders as follows:-
“2. That the children spend time with the husband, in the presence of the child Z, as follows:-
2.1. each alternate Sunday from 10:00 a.m. to 2:00 p.m.;
2.2. on Easter Sunday, Christmas Day from 10:00 a.m. to 2:00 p.m.
2.3. on each of the children’s birthdays and Father’s Birthday from 4:00 p.m. to 7:00 p.m. save where same falls on a weekend, then from 10:00 a.m. to 2:00 p.m.
2.4 such further and other times as agreed between the parties.
3. THAT the father undertake extensive counselling and/or therapy, at his expense with Ms L (sic) Ms L or such other therapist nominated by her to address the issues raised in the reports of Dr T, Dr S, Dr M and Ms K and the father produce evidence of such satisfactory engagement and completion of same to the mother.
4. THAT the ICL provide to Ms L (sic) Ms L copies of any of the reports referred to in … [3] hereof which have not previously been provided to Ms L.
5. THAT upon completion of the therapy referred to in … [3] above the father attend upon Dr T, at his expense, to obtain an updated psychiatric assessment and provide a copy of same to the mother’s legal practitioner.
6. THAT the father, upon production of the report referred to in paragraph ... [5] hereof, be at liberty to initiate proceedings for further time with the children.
7. THAT the father be at liberty to telephone the children on three occasions each week between 7:00 p.m. and 7:30 p.m. with the father to initiate such a call save that the mother shall have the right to terminate the call should the father engage in any family abuse towards either the mother and/or the children or either of them.
8. That the father be restrained from denigrating, belittling or threatening the mother in the hearing or presence of the children or either of them or having allowing the children or either of them to be present when any third person is acting in such a manner.
…”
The Independent Children’s Lawyer in opening expressed a preliminary view which supported the orders as sought by the mother, save for sole parental responsibility. In closing, the Independent Children’s Lawyer made submissions to the Court that the mother should have sole parental responsibility in respect of X and Y’s health and medical needs but that otherwise there should be equal shared parental responsibility. The father sought equal shared parental responsibility of the children and that the children reside with each of their parents on a shared care basis and on a week about regime to commence immediately.
The husband in these proceedings relied upon his affidavits sworn 13 March 2014; 23 July 2014; 12 November 2014; 15 December 2014; 22 May 2015 and 30 May 2016.
The wife in these proceedings relied upon her affidavits sworn 7 July 2014, 15 October 2014, 1 December 2014, 21 May 2015 and 27 May 2016.
The husband chose, in the proceedings, not to cross-examine any of the experts in respect of the reports tendered in evidence. He understood that the contents of those reports being the evidence before the Court was thus unchallenged by him. He indicated that he saw no point in cross-examining Family Consultant Ms K; Clinical and Forensic Psychologist Dr S and Consultant Psychiatrist Dr T. The Independent Children’s Lawyer and the wife at no time sought to cross-examine those expert witnesses, they having no issue with the contents of each of the reports and not wishing to challenge the evidence as contained in them. The husband’s cross-examination of the wife went to the outstanding property matter, as he deemed it, rather than critical matters that went to a determination of the children’s best interests. The husband himself was cross-examined in the proceedings as to children’s matters and the evidence going to a determination of parenting orders by the wife’s Counsel and Counsel for the Independent Children’s Lawyer.
History
The parties commenced their cohabitation in 1993. They married on (omitted) 1995 and separated on 9 February 2014 after a cohabitation period of approximately 21 years. The husband was born on (omitted) 1970. He is now aged 46 years. He is a (occupation omitted) by occupation. The wife was born on (omitted) 1969. She is now aged 46 years of age. Her occupation is as an (occupation omitted) with (employer omitted). The husband is self-employed in his own business, which is known as (business omitted). The husband has in the past had a very successful business.
The husband and wife separated on a final basis on 9 February 2014 following an incident during which the husband physically assaulted the wife. This was not the first episode of family violence. The husband had been both physically and verbally violent to the wife, sometimes in the presence of the children and often when he had been drinking, over some years. An Intervention Order application was made on behalf of the wife by the police following this incident. The husband consented to a final Intervention Order being made on 19 March 2014. That final Intervention Order expired on 18 March 2015.
The parties’ eldest daughter, Z, was present at the incident on 9 February 2014 and also present when a previous assault was perpetrated upon the wife by the husband in November 2013. Z was listed on the Intervention Order made on 19 March 2014 as an affected family member. She did not spend any time with her father after separation for a period of time and of her own volition. She has now managed to resume her relationship with her father. Z sees him for some hours each week, or in longer frequencies than weekly.
Following the making of the interim Intervention Order on 9 February 2014, the husband continued to harass the wife and make threats against her. He posted several disturbing comments on Facebook, referring to her as a whore and stating:-
“When I read shit in the paper about dudes doing their spouses in .. I don’t accept it nor condone it but I can see why they have gone off the fkn rails now.”
An Intervention Order was also obtained by Ms Milner’s partner, Mr C, against the husband in respect of the husband’s assault on Mr C on 15 March 2014. The wife, Mr C and his two children were in a (omitted) store. The husband came into the store and punched Mr C to the side of his face. Shop security were involved.
In the Geelong Magistrates Court on 24 June 2014, the husband was convicted of breach of Intervention Order; assault upon Mr C; threats to inflict serious injury to Mr C; stalking and using a telecommunications device to threaten or harass. He received a three month suspended sentence, suspended for eighteen months.
The husband initially commenced to spend time with the children X and Y, in accordance with orders made by consent in the Geelong Magistrates Court on 19 March 2014. Those orders provided for the husband to spend time with X and Y each Sunday from 9:00am to 6.30pm and each Wednesday from 3.20pm at the conclusion of school until 7.30 pm. The husband spent time in accordance with those orders, save the midweek time which was altered to a Thursday evening to accommodate the husband’s attendance at a men’s behaviour change program at Bethany Family Services, which he attended and completed. The orders also provided for the husband to have ongoing counselling in relation to issues with alcohol, gambling and his mental health functioning.
Orders made 31 July 2014 provided, amongst other things, that the children continued to live with their mother and spend time with their father each alternate weekend from after school Friday until Sunday evening and on the alternate week on Thursday from after school until the latest time that Bethany Family Services could accommodate a changeover. The changeover was to occur at Bethany in the event it could not occur at school. The wife, in accordance with the orders of 31 July 2014, completed the paperwork for changeovers to be at Bethany Family Services. The husband did not put in any paperwork within the required 28 days, thereby failing to take the steps necessary to facilitate a calmer changeover environment for the children, as intended by the orders made.
In May, August and September 2014 the husband emailed the wife, repeatedly verbally abusing her throughout the emails. On 29 August 2014 at 7.10pm, the husband emailed the wife the following:-
“Oh, by the way, if you have an issue with the definition of a “whore”? It’s like when one goes on a bucks weekend and a whore invents (sic) her gardener or similar to sleep over. Slut. Please pass this on to your solicitor… whore.”
This email followed an earlier one sent on 29 August 2014 at 7.02pm, wherein the husband had again referred to the wife as “a whore” and a “dirty fkn slut”.
The above correspondence was a blatant disregard of the then-existing Intervention Order the wife had obtained against the husband. At the time, the husband had eight convictions for breaches of the existing Intervention Order. The emails represented clear breaches and the wife instructed her solicitor to write to the Applicant’s solicitor to advise him that if he continued with his email correspondence she would have no choice but to report these further breaches of the Intervention Order to the police.
The wife did not report the breaches to the police, as she had been advised by the police that if the husband was found to be in breach of the Intervention Order again, he would be jailed. The wife was torn between her fear of the husband’s ongoing abuse and what appeared to be an escalation of his anger toward her, and her responsibility to the children, who did not want their father to go to jail. At the time the above emails were sent by the husband to the wife, he had been attending an anger management course at Bethany for over four months.
The children continued to spend each alternate weekend with their father until November 2014. At that time the father’s time with the children was suspended as a consequence of him being assessed by Dr M as a risk to the children. The children had stated to Dr M who was engaged as a family consultant to prepare a family report to be released to the parties and to be evidence before the Court, they were sometimes fearful when spending time with their father and were threatened by his anger toward them, their mother and her partner.
In the subsequent family report prepared for the proceedings, Family Consultant Ms K referred to the contents of subpoenaed Victoria Police records and Department of Human Services (as it then was) records as they existed throughout 2014. The Victoria Police records disclosed that:-
a)on 9 February 2014 the husband walked into the garage at the wife’s home to collect one of the children. The husband abused the wife and “chested her”. She fell to the ground, hitting her leg and head on the concrete floor. The husband had been drinking through the day;
b)on 15 March 2014 the wife, Mr C and his two children were in a (omitted) store. The husband came into the store and punched Mr C to the side of the face. The husband’s evidence in these proceedings is that he did punch Mr C but not to the side of the face. Security escorted the parties to their cars before reporting the incident to (omitted) Police;
c)on 25 May 2014 the wife came home to find her backyard trashed. Furniture was in the pool, back garden lights broken, rubbish bins tipped over and the pool pump had been tampered with. The husband was subsequently arrested and interviewed;
d)Department of Human Services case notes made 23 December 2014 recorded that the wife and family had engaged with Bethany Family Services, developing a safety plan and that the wife had acted protectively.
Orders were made on 16 December 2014 making the husband’s time with the children subject to certain requirements, which included:-
a)the husband attending upon Dr S for a risk assessment;
b)the husband attending upon Dr T for a psychiatric assessment; and
c)the husband attending Mr V for reportable counselling.
Orders were made further that an Independent Children’s Lawyer be appointed and separately represent the children in the proceedings. On 16 December 2014 it was ordered by consent, relevantly:-
“1. That the Husband attend upon Dr S for assessment and report as to his propensity for violence, domestic violence and personality assessment.
2. That the Husband and wife attend upon Dr T for psychiatric assessment.
3. That the Husband attend upon Mr V for reportable counselling as recommended in paragraph 123 of the Family Report of Dr M (“the report”).
4. That upon:
a. Mr V being of the opinion that the children and/or wife should be involved in reportable counselling
AND
b. The Husband engaging treatment recommended by Dr S and Dr T as recommended in the Report,
the children and/or wife attend and participate in reportable counselling with Mr V.
5. The Wife cause the children to telephone the Husband (save for Z) between 7.30 pm until 8.00 pm each Monday, Wednesday and Friday and Christmas Day and the wife be permitted to record such conversations without the knowledge of the children.
6. That Dr S, Dr T and Mr V be provided with a copy of the Report.
7. That the costs at first instance of the reports and counselling in this order be paid for by the Husband and the Husband be permitted to sell shares for this purpose.
8. That Dr S and Dr T be permitted to communicate with each other prior to release of their reports.
9. Both parties forthwith enrol in and complete at the earliest opportunity the “our Kids post separation parenting program” at the Family Relationship Centre (omitted), or equivalent program at Bethany Family Services.
10. That each of the Husband and the Wife be and are hereby restrained by injunction from discussing these proceedings or any issues relating to these proceedings with or in the presence of hearing of the children or allowing any other person to do so.
11. Usual order for the appointment of the Independent Children's Lawyer.
12. Liberty to apply
…”
What then subsequently transpired was that Mr V was substituted by Ms L (by orders made by the Court on 11 November 2015) as the person who would conduct therapeutic sessions with the husband and subsequently the wife and children at her discretion.
The evidence of Dr T
The psychiatric assessments of each of the parties, as conducted by Dr T pursuant to an earlier Court order, were in evidence in the proceedings. That evidence was unchallenged. Those assessments are annexed to the affidavit of Dr T sworn 12 August 2015.
Dr T assessed the husband on 29 July 2015. At the end of an extensive report, Dr T provided a summary and his diagnosis of the husband. His diagnosis was that the husband suffered from a narcissistic personality disorder, alcohol abuse and a gambling issue. Dr T said as follows:
“Mr Milner described a difficult upbringing. His father was largely absent. His mother was caring. It was lost on Mr Milner that his description of his father as being self-interested and unavailable emotionally was a description that may well have applied to him as evidenced by the statements of his wife and children.”
Dr T described the husband as a man of limited emotional intelligence, who largely denied his part in the breakdown of his marriage. He said of him the following:-
“…he impressed as someone who had one set of rules for himself and another for others. It was alright for him to have an affair but not for his wife to do so. He is a man who operates by using denial and hence, his emotions are largely unavailable for him to process and as such, he does not understand himself or others for that matter.
His various blanket statements and denials, despite strong evidence to the contrary, were a feature of the assessment. He unwittingly provided various contradictory statements such as he did not consider that he had an alcohol problem it was not an issue in the marriage, and yet he lost his licence on three occasions for drink/driving offences. His inability to see himself as the architect of his own demise was limited. He is someone who has an egocentric view of the world and cannot put himself in the position of others, particularly his children. His various statements to the effect that the children have not been impacted on by his behaviours both during the marriage and after it was starkly apparent.
In particular, Mr Milner was not able to understand or explain his rage and disappointment that his wife had actually found another man to love. His preferred view was that she had simply out-manoeuvred him and was really after the money. His underlying disappointment and hurt were manifested by rage and anger. In the end, Mr Milner impressed as a man who won't give in to himself and acknowledge his part in the failure of the marriage and lack of contact with his children. He is someone who is stubbornly rebelling against the possibility of having supervised contact with the children. His rage at the system and statements to the effect that he simply won't co-operate with such a proposition fail to take into account what it would be like for his children if he was to follow through with such a threat.
Mr Milner impresses as a man who lacks insight and appears not to have learned much at all in regard to the various interventions in which he has participated (behavioural change and psychological treatment). As such, it sadly appears that he will only learn by experience, if at all.”
At the commencement of his report, Dr T noted that in the wife's material the wife raised significant concerns in regard to the husband's behaviour, including domestic violence toward her and the children, his drinking, mental health issues and in the post-separation period, various breaches of an intervention order. Dr T noted the family report of 20 November 2014 of Dr M which similarly raised concerns about the husband's insight and considered that risks of cumulative damage were too great to the children.
Dr T noted that Dr M considered the husband lacked insight and had not demonstrated any capacity to control his anger, which had resulted in threatening behaviours to the wife, children and the wife's partner and a number of breaches of the orders. Dr M, he noted, further said of the husband that whilst he had attended some psychological counselling sessions and a Men's Behavioural Change Program:
“…he clearly has not made the change and progress necessary … and my own brief discussions with Bethany suggest that they agree with this.”
Dr T said discussion with the husband over his attitude and deposition in regard to the possibility of supervised contact was concerning. He noted the husband was adamant he was not going to participate in a supervised form of contact. In taking the husband through the matter further, Dr T indicated that it may well be the husband would have to choose between no contact and supervised contact. Dr T said:-
“He remained obdurate and adamant that he would not participate in supervised contact under any circumstances. I questioned him as to the effect of that on his children. I put it to him that if it was so decided, the children may well prefer to have supervised contact with him initially, and indicated to him that if he's not prepared to participate in this, they may see it as a form of rejection. His response to such a proposition was, quote, ‘bad luck… I’m sick of this".’
The husband confirmed with Dr T he was the subject of an intervention order on 9 February 2014 at the time of separation. The husband’s account was as follows:-
“She had a male, a new boyfriend (who he referred to as “creep”) Mr C. She called the police … she said I assaulted her. I didn’t.”
The police attended. He was upset, because during the course of the day, the wife and Mr C had “left in my vehicle”. He acknowledged that he “grabbed the fellow and gave him 30 seconds to leave or I beat the fucking crap out of him.”
The police removed the husband subsequently.
The husband confirmed there had been a number of breaches of the intervention order. He confirmed he had threatened Mr C at (omitted) when “I lost it”. He grabbed him by the throat and wanted to “knock the stuffing out of him.” He sent him texts and accepted the matters as alleged in the intervention order. When asked what it was that was driving his anger and rage at the time, the husband said “I've been fucked over.” It was very clear to him that it was orchestrated between the two of them to remove him from the house. The husband told Dr T he did not regret making the threats to harm Mr C.
Dr T assessed the wife on 30 July 2013. His diagnosis was that the wife did not suffer from a psychiatric condition. He said of the wife, relevantly, the following:-
“Ms Milner described a happy upbringing in (omitted). She is one of seven children. Her parents were hard workers. She felt loved and care for. She enjoyed sport and described herself as a ‘country girl’. She met Mr Milner at a nightclub and eventually they married, and the children followed. Her account was provided in an understated manner, despite what appears to be physical and emotional abuse. She spoke with some empathy as to his current plight and his alienation from friends and family.
It was apparent that Ms Milner still had some feelings for Mr Milner, even though their marriage is well and truly over. She impressed as genuinely wishing for some resolution of the situation in order for the children to have a normal relationship with their father. She says that unfortunately his character won’t allow him to do this. He remains blind to his need to understand that he must change his ways and focus on the children, rather than himself. She continues to believe that he is hell-bent on revenge and can’t bring himself to acknowledge that he has caused many of the difficulties he is facing. She continues to hold concerns about his behaviour and attitudes towards the children and his inability to follow the rules and respect their needs.
Ms Milner spoke of his longstanding alcohol and gambling problems and unremitting anger and bitterness towards her. She believes that he feels he is perfectly entitled to behave now as he has in the past and considers him a risk in regard to his behaviour around the children and his inability to control himself and his feelings towards her. Ms Milner does not describe symptoms consistent with a psychiatric condition. Whilst there was a period where she was anxious in the post-separation period, those concerns would not rise to clinical significance.”
Dr T considered the husband a risk to the children for the reasons described in his report. He noted that he impressed as a man who remains bitter and angry and from a risk perspective, he said “I can see no other option than supervised contact with the children or possibly a period of no contact.” He further said of the husband:-
“…At this stage, Mr Milner impressed as a man who has not benefited or learned anything from the intervention so far, including the men's behavioural change program and attendance on a psychologist.”
And later:-
“On the other hand, Ms Milner impresses as a woman of straightforward nature, who spoke lovingly of the children. She is clearly their primary carer and there are no risks factors which pertain to her relationship with them. It is that relationship which needs protection from Mr Milner in the current circumstances.”
Evidence of Family Consultant Ms K
I note that Dr T’s assessment of the husband was conducted some 10 months before the trial of the proceedings and some number of months after the preparation of the report by Dr M. Following the psychiatric assessment of Dr T, a family report was prepared by family consultant Ms K dated 14 September 2015. Ms K conducted interviews with each of the husband and wife and their three children on 21 August 2015. She had before her the family report of Dr M of 20 November 2014 and the psychiatric assessments of Dr T dated 31 July 2015. She also had before her the numerous orders made by the Court and subpoenaed documents, affidavits and student reports in respect of X and Y as set out at the commencement of her report.
Ms K noted at the time that the children were living with their mother in the former matrimonial home and that her partner, Mr C, also spent several nights each week at the house. The children, X and Y, told the family consultant they spoke to their father by telephone at least three times each week. They, at the time of preparation of that report, had no face-to-face time with him.
Ms K noted the husband was living in a two bedroom unit in (omitted). The parties’ elder child, Z, spent time with her father each week and they made their own arrangements. Z did not spend any overnight time with her father and saw him by agreement with him. Ms K noted that the husband wished to re-establish face-to-face time with the two younger children each alternate weekend from Friday after school until Sunday evening and on the alternate Thursday night. The father indicated that ultimately he would seek to have equal shared time with the children. That is, in fact, what he sought on the hearing of the matter.
The wife desired for the children’s father to be a presence in their lives, but she had ongoing concerns about his anger and his abuse of alcohol. The wife said to the family consultant that she had concerns about the children being with the father at night because of his drinking habits. She noted that Z had told her that she would be there to make sure everything was all right and essentially supervise the father’s time spent with the younger children. But the wife indicated to Ms K that she did not want Z to have that responsibility. At trial, the wife was however prepared to agree to Z being a supervisor, as put forward by the Independent Children’s Lawyer and as initiated by Z herself.
Ms K determined the issues in dispute and issues identified during the assessment were:-
(1)the husband’s alcohol intake;
(2)the husband’s refusal to have supervised time with the children;
(3)communication between the wife and husband;
(4)the husband’s mental health;
(5)the children’s wishes.
Ms K noted that the husband claimed that he did not think his alcohol consumption was excessive. She noted he presented as cooperative and polite although somewhat tense. His expression was sometimes incongruent with the content being discussed.
Ms K noted that the husband attended between six to eight sessions with psychologist Mr G from mid-2014. The husband said he respected Mr G because he was “upfront”. The husband also attended a Men’s Behavioural Program in Geelong from June 2014. The husband attended a total of 24 two-hour sessions and described the program as “interesting”. The husband was very upset with Dr T's report and claimed that Dr T used the earlier family report of Dr M as a template.
The husband denied gambling excessively. He said he gambled once a week on horseracing, usually on a Saturday. He claimed his gambling was discretionary spending and not money he needed for essentials. He claimed his expenditure on gambling made no impact on the finances of his business. He said:-
“I might put in $1000 in the account on a Saturday and lose it - to others who don’t gamble, that's a lot of money.”
(The Court notes in evidence in the Court proceedings, the husband indicated that he had possibly expended $25,000 on gambling in the last financial year and some $10,000 to $15,000 on gambling since the commencement of the current financial year (as it was at trial).)
The husband reiterated to Ms K that he would not consider having supervised time with his children even if it was the only way that he could see his children.
When interviewing the wife, Ms K noted that she presented as obliging and friendly. She said the husband’s drinking and anger had been a problem for a long time. She said of the husband:-
“He has always been controlling ... I have put up with a lot in my life with him ... I loved him and I tried my hardest …This is a man who has had constant affairs and just doesn’t realise I’ve gone.
It’s more the mental abuse – like – ‘Mum’s this – Mum’s a whore’...and talk about my partner Mr C, constantly and everyone is bagged – the kids – it plays on their emotions – like Y he won’t say a lot and then he’ll have an outburst.
he (Mr Milner) doesn’t have any regard for laws and I think that’s why he has a lot of anger as well because in the court system he has lost a lot of his control.”
The wife described Mr C as living part of his time in his house in (omitted) and otherwise with her. She said he managed the children well and coped with the current situation. He is employed as a (occupation omitted). She described him as a calm person who hardly drank alcohol.
Upon interview with Z, who was at the time 17 years and six months, Z presented as a polite and thoughtful girl. She was then in year 11 at (omitted) Secondary College. She said she did not want to see her father after her parents separated, however she went out to dinner with her father on Boxing Day 2014 and they started talking and she has since then resumed spending some time with him. Z said she had seen physical and verbal abuse by her father toward her mother. She said he was also rough with her. She attributed much of his behaviour to his abuse of alcohol. She also said her father had “an anger problem”. Z said of Mr C that she did not like him because when he is around “it’s all about him”. She said his children spent the school holidays with them and that they could be annoying.
Upon interview with X, who was then 10 years and 10 months of age, X presented as a charming, articulate girl in year 5 at (omitted) Primary School. Her academic performance was at the top of her year level. Her attitude in her student report was described as mature and self‑reliant. Her effort and class behaviour were rated as excellent. X said Mr C was helpful around the house. She said of her father that she telephoned him nearly every night and wished to visit him. She said she did not mind if Z or Y went with her. She said she was scared of her father sometimes when he had been drinking and “when he talks about mum and when he gets angry”. She said that her father called her mother “slut and whore”. She said, “He called her slapper but I don’t know what that means.” X said she missed her father when she rang him and if they went to visit they would go for bike rides. The Court notes that in his affidavit evidence sworn on 22 May 2015 the husband deposed in paragraph seven therein “The definition of a slapper as per the Oxford Dictionary is a promiscuous or vulgar woman.”
Upon interview with Y, who was then eight years and nine months old, Y presented as cheerful but quiet. He was in grade 2 at (omitted) Primary School and was achieving at the upper range for his year level. His effort was rated as excellent and his class behaviour very good. Y said he spoke to his father every day on the telephone and would like to see his father occasionally. He said he was not scared of his father. He said if he was worried about something he tells his mother. If he could have three wishes the first would be “...to see dad.”
In her evaluation Ms K noted that the husband did not appear to accept any responsibility for his situation. He denied alcohol abuse. He minimised his violent behaviour toward the wife. He believed the blame lay elsewhere, including with the previous family report writer, with Mr C, with the mother and with Dr T. Ms K noted that it was not apparent that the courses the father had completed had informed his thinking and speaking. He did not mention how the children may be feeling about his absence. Despite his regular attendance at a men’s behavioural program and counselling he was deemed an unacceptable risk to the children in the family report of November 2014. He did not appear to know that referring to the mother in abusive terms was damaging to the children.
In paragraphs 88 and 89 of her report Ms K said:-
“Mr Milner says he refuses supervision ‘because I didn’t need it before’, indicating he has little understanding of what constitutes family violence and shows a lack of insight into his previous behaviour. He does not talk of the disadvantage or sadness the children may be experiencing not seeing him.
Mr Milner gives the impression that he puts a priority on trying to prove a point rather than spend time with the children.”
Of the wife Ms K said that she did not present as manipulative as suggested by the husband but, rather, she appeared genuine and insightful in her feelings for the children in relation to the husband and what they were all experiencing.
Ms K concluded the children did wish to see their father but had a residual fear of him because of incidents witnessed by them.
Ms K’s recommendations were that the children continue to live with their mother, that Z spend time with her father as she wished and that the children X and Y spend time with their father supervised by Bethany Family Services or a professional supervision service for three visits of no less than four hours. Thereafter she recommended there be further professionally supervised visits and with the father to be restrained from consuming alcohol for 12 hours prior to the children spending time with him and during the time the children spent with him. She recommended changeover to take place by agreement and failing agreement, at the (omitted) Police Station until arrangements could be made for changeover with Bethany Family Services.
Evidence of Dr S
Dr S undertook a psychological evaluation of the husband on 12 August 2015. It is annexed to his affidavit sworn 30 May 2016 in evidence before the Court. Dr S’s conclusions are as stated on page 17 of his report as follows:-
“35. Mr Milner is a 45 year old man psychologically evaluated in the context of Family Court proceedings. An individual psychological evaluation was undertaken with particular focus on vulnerability to violence, in particular to family violence. A personality evaluation was also undertaken, as well as risk evaluation. A detailed violence risk assessment via the HCR‑20 was undertaken. Formal violence risk evaluation revealed Mr Milner to be functioning at a Low final risk judgment and/or general parental risk as measured through the FSNA was showed in the Low-Moderate risk.
36. Mr Milner is a man who functions in the High Average range of intellectual abilities with a percentile of 81. He has been a successful businessman for much of his life. Significant factors in his background are physical abuse from his father, with his father having a significant alcohol problem. Mr Milner himself has likely had alcohol difficulties and the history would indicate that there is vulnerability to anger and violence, as indicated in the Family Court matters. He appears to have followed through relatively appropriate steps to improve his own vulnerability to violence. I am less convinced that he has resolved the alcohol issue and this represents a significant disinhibitor. In my opinion, this issue needs to be addressed in treatment.
37. Personality evaluation revealed personality vulnerabilities and a tendency to present himself in a naively positive light, which potentially invalidates the self-report in the evaluation, leaving only factual information for the Court to draw their opinions about Mr Milner. Nevertheless the clinical impression was a man with vulnerability to impulsivity as evidenced by alcohol and gambling, as well as some violent incidents, although he did present as a person who genuinely seeks to maintain positive relationships with his children and has recently been doing so with his eldest daughter.
38. Continued treatment in the area of alcohol and possibly gambling, as well as more general psychological treatment with a clinical psychologist with expertise in the area of personality problems over 2-3 years would assist Mr Milner. This evaluation did not exclude the possibility of time between himself and the children. Historically, my understanding is that there have been no significant issues with the children. Nevertheless, it may be appropriate for there to be a period of time with the children in substantial attendance with another adult over, for example, six to 12 months.”
Time spent in 2016
Ultimately the husband agreed, despite what he had earlier said, to attend at Bethany Children’s Contact Service for supervised visits with his younger children, X and Y. This process started in January 2016 and at the time of the preparation of a report by Ms A, as annexed to an affidavit sworn by her on 27 May 2016, eight supervised contact visits had been offered to the Milner family for the period 23 January 2016 until 30 April 2016. The wife punctually attended each scheduled visit with the children, X and Y and presented as positive and encouraging of the children’s time with their father. The husband was observed to engage in continuous active play with the children and conversation flowed easily between the children and their father. Those visits went well. The children were happy to see their father and he them. Various activities were engaged in and the children appeared to enjoy the time.
The visits had moved in March 2016, to low vigilance supervised contact visits and these also were happy and warm times for the children and their father. The husband did not make adverse comment about the wife in the presence of the children, and those supervised visits were important to the children, with laughter and affection displayed.
Whilst the wife agreed to use a communication book as requested by the worker, the husband indicated that he did not wish to do so as he did not wish to communicate with the wife.
Following the resumption of contact with their father the children appeared to their mother to initially struggle seeing their father. The wife’s evidence was that Y would be more emotional and often angry. He has however started to settle and his emotions, whilst up and down, were manageable. X appeared to cope better with seeing her father. The supervised time spent between the father and children occurred during a period after the parties had settled their competing property applications but prior to the time that the husband had made arrangements to collect his personal items that remained in the former matrimonial home. The arrangements that had been entered into did not provide for the husband to attend at the home but rather, for a third party to collect his relevant items. Despite the arrangement, the husband did in fact attend the home and become demanding with the wife in relation to the items which he sought to have returned to him. The wife became concerned for her wellbeing and called the police to attend at the home to monitor the situation.
Prior to the above described visits and on 11 November 2015 consent orders (as referred to in paragraph 32 herein) were made by the Court providing inter alia for the parties and children to attend upon Ms L for the purposes of ongoing family therapy. The parties were to follow all directions and recommendations as made by Ms L.
The husband attended upon Ms L and the wife made inquiries before the 2015 Christmas break but having received no response, she made a third inquiry which resulted in an appointment for her on 2 April 2016. The wife attended and whilst she took the children with her, Ms L indicated that at that stage she did not need to see them. The wife has not been contacted further by Ms L.
The husband’s evidence was that he will not attend further upon Ms L until such time as she has seen the children. A stalemate has been reached, the husband’s view being that Ms L should see the children at this point in time before she again interviews him. There is currently no progress and certainly no benefit being received by the family in respect of this family therapy in the face of the husband’s intransigence.
With no property proceedings outstanding and an intervention order expired, the husband, despite the various assessment and interventions that he had undergone, recommenced his earlier pattern of sending derogatory emails to the wife. Those emails, or those of them in evidence in the Court proceedings, commenced in February 2016 and continued to late May 2016, even though these proceedings were listed for final hearing at the end of May 2016. The emails provided evidence that the husband’s involvement with psychologists and the completion of his anger management course has been futile in terms of any change to his behaviours. It is apparent that the husband is unable to contain his disparaging and highly insulting language when making reference to the wife. Whilst he claims that he will not use such descriptive language about their mother in front of the children, given the evidence as contained in the expert reports and his inability to control himself in the proceedings, the Court cannot accept the husband’s evidence in that regard. It is clear the children will be exposed to their father’s ongoing rage and unacceptable and untruthful denigration of their mother into the future. That exposure will have a long‑term psychologically damaging impact on the children.
Many of the messages sent to the wife by the husband are sent late at night. The husband was cross-examined as to whether he had been drinking at the time. He denied that he had been drinking and said he was of clear mind when he forwarded, for the most part, vile emails.
Examples of these emails are as follows:-
a)21 February 2016 (a text message) at 9.29pm stating:-
“It looks like you’re losing the eldest with your needy slappy ways. Roll on May, 2016 at Court. Y and X despise living at (omitted). I’m going for full custody. Lol. have a fab day tomorrow with the new car, unemployable tooting (omitted) encrement and no friends. HAHA you needy degenerate needy whore. You really are a fuck up. It will be you and him soon, whore, Bethany supervisors think you are unstable. Just saynJ”
b)On 21 February 2016 at 11.50pm:-
“You stupid dumb fuck whore and deadbeat. Come past this joint again and sound the horn and you will both be fucked up you ugly whore. The children request that they stay with me. Come may 2016, this is our approach. It’s fucking sad being you you lonely needy whore. Your children don’t won’t to be with you. Haha karma.”
c)23 February 2016 at 11.54pm:-
“Divorce time, and you will need to go back to the whore you are. Or it may be cunning ham, in any event, change you slut. Change and move whore…maybe you need a his and her intervention order you stupid dumb needy cunt. Looks like lolly with me. Next tha 2 yum.”
d)24 February 2016 at 12.11am:-
“Lol the sooner I can rooster and chicken the better, you unstable slappa.”
e)24 February 2016 at 12.13am:-
“You are fucked in the head, including the girls at Bethany. Lol.”
f)24 February 2016 at 12.17am:-
“There names are (omitted) or (omitted). They say your a big fuck up. Ring them you open ended whore.”
g)24 February 2016 at 12.24am:-
“Tide’s turning including your lying, cheating shit. It will need to consider that house, as apart from you it will be vacant. Z fucking hates you. Lol.
In the period from 22 February 2016 to 13 April 2016 the wife continued to receive email messages, including statements that she was a “fucked up slut”; “stupid dumb cunt” and “ugly potted face losing cunt”. Threats to her included, “I will fucking smash your ugly face”; “I will fuck you and the indoor plant up you slappa” and “Go and top yourself you slut”. Other of the text messages, all in similar vein, forwarded from the husband to the wife, between 14 April 2016 and 30 April 2016 are contained in the annexure to the wife’s affidavit, sworn 27 May 2016, marked M3. I shall not otherwise repeat them here but they are evidence on which the Court relies.
Understandably, the wife has genuine concerns for the psychological wellbeing of the parties’ children, in the event that their father is unable to control his rage and continues to speak of their mother in this manner and in front of the children.
The wife says, deposed to in paragraph 33 of her affidavit, sworn 27 May 2016, the following:-
“I am mindful of the recommendations made by Ms K in this matter. Having regard to those recommendations, I believe any time with the father and children should be supervised by an adult third person. I am aware that Z, who is 18, has indicated her willingness to undertake this task as she sees her father on a regular basis. I have concerns as to Z undertaking this task as I do not wish to see her put in a position of conflict, in the event that Mr Milner engages in any behaviour (including denigration of me) in the presence of the children such that Z has to remove them. I am also aware of the benefit of the children seeing their father in Z’s presence as this is a good support for them. I do not wish to cause any harm to Z’s relationship with her father and thus, with reservation, have agreed with Z’s proposal for her to be present if the children spend time with their father under my proposal.
I consider that any time between the father and the children should still occur in the presence of a suitable person who can assure that Mr Milner does not engage in denigration of me in the children’s presence. I am concerned that if the children are exposed to Mr Milner’s attitude it may cause significant long term damage to them psychologically.
The wife is a warm and loving mother, devoted to her children. She is genuinely and reasonably concerned for the wellbeing of herself and the children. She was an impressive witness. She has no capacity to deal with the husband and his ongoing abuse. As a consequence there is no ability for the parties, in a practical sense, to engage in any decision making, jointly, for the children. The wife seeks a sole parental responsibility order in respect of X and Y and it is obvious, on the evidence before the Court, that that order should be granted. The presumption of equal shared parental responsibility as set out in s.61DA of the Family Law Act 1975 (Cth) (‘the Act’) is rebutted on the basis that both ss.61DA(2) and 61DA(4) of the Act apply. The husband has engaged in family violence and has occasioned psychological harm to the children. This consideration the Court gives greater weight to than the benefit of the children having a meaningful relationship with their father (s.60CC(2A) of the Act). It is further on the evidence, not in the best interests of the children, that being the paramount consideration in deciding whether to make a particular parenting order in relation to a child (s.65AA of the Act) for the presumption to apply.
Extraordinarily, in the context of the parenting orders trial proceeding the husband continued to communicate with the wife in appalling manner. On 5 May 2016, at 6.49pm he wrote:-
“You really are a delusion fucked up lying needy texting slappa. Look at the email stream you degenerate. Never have you proposed the 11/5. I suggest you close you legs and get off your back whore and start a dialogue where you are able to talk truthfully.”
On 16 May 2016, at 10.43am, the husband wrote:-
“I cannot make this any clearer. None of my valuables or valuable artworks will either be left outside or unattended. Had you taken this approach with your rings and put them in a secure location, you may have negated the indoor plant (AKA deadbeat) from pawning them at Cash Converters for a tank of fuel.
Friday it now is. Stop fucking me around you lonely needy lying slappa.”
On 19 May 2016, at 6.37am, the husband wrote:-
No. It’s the indoor plant’s house, you fucked up whore … THEFT????????? Theft of my own goods, you are mentally disturbed. The shit that comes out of your mouth is fkn hilarious. Get back on your back you needy friendless slag.”
The orders sought by the husband do not advance the children’s best interests and, in the context of the evidence before the Court, are not supported. If the husband had any insight he would be able to assess the evidence in such a fashion. The husband, however, requires the Court to make a judicial determination to refuse his application, perhaps in part so that he can continue to rail against the system and consider himself a victim of it. The children’s wishes are that they would like to spend time with their father, but they need to be assured, as does the wife, that he can control his behaviours and verbal outbursts.
The Independent Children’s Lawyer proposed that Z supervise her younger siblings’ time with their father. Their father says that that is inappropriate and that is one matter in which the Court might not disagree with him. The difficulty is that there is no other supervision available. Nor is the husband proposing any private supervisor. The position is now that there be supervision by Z, or no time spent with between the children and their father at all. That is the conundrum that faced the Independent Children’s Lawyer, the wife and the Court. Z herself has proposed that she act as a supervisor and appears confident that she will be able to do so in a way that benefits X and Y. Z has some rapport with her father and a keen sense of what is in the best interests of X and Y as determined by her mother and the Independent Children’s Lawyer.
Given the increasing ages of the children; their wish to see their father; and the manner in which time spent with proceeded earlier in the year in a supervised setting, the Court determines that some form of supervised time spent with should proceed. The Court is mindful that the wife now accepts that Z is suitable to perform that task and that her presence will assist X and Y. The wife has the necessary capacity to provide for the needs of the children, including their intellectual and emotional needs. The husband does not. The wife also has in the period since separation shown a committed attitude to the responsibilities of parenthood. Again the husband has not. The wife is mindful that the children need a relationship with their father and proposed that occur in a safe environment being the presence of Z. She also proposed the husband undertake some form of family therapy and assessment, ongoing. The Court shall accede to her application.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 31 August 2016
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