Misic & Misic
[2023] FedCFamC2F 267
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Misic & Misic [2023] FedCFamC2F 267
File number(s): NCC 2072 of 2020 Judgment of: JUDGE BETTS Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – parenting – final orders – two children aged 10 and 6 – where the mother initially sought ‘no time’ order against the father but at trial changed her position to limited supervised time – where the ICL seeks a ‘no time’ order – where the father exhibits narcissistic, anti-social and Machiavellian traits – where the father has perpetrated family violence – where the court must strike a balance between the benefits and risks of the children having a relationship with the father – best interests of children. Legislation: Family Law Act 1975 (Cth) Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 296 Date of last submission/s: 8 December 2022 Date of hearing: 6, 7 and 8 December 2022 Place: Newcastle Counsel for the Applicant: Ms Ticehurst Solicitor for the Applicant: Boyd Olsen Lawyers Counsel for the Respondent: Mr Duane Solicitor for the Respondent: NLS Law Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates ORDERS
NCC 2072 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MISIC
Applicant
AND: MS MISIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT ORDERS THAT:
1.All prior parenting Orders and injunctions are discharged.
PARENTAL RESPONSIBILITY
2.By consent, the Mother has sole parental responsibility for the decisions of the children, X born in 2012 and Y born in 2016 (referred to as “the children”).
LIVES WITH
3.By consent, the children live with the Mother.
SPENDS TIME
4.Commencing from the date of the final orders, for a period of twelve (12) months upon a place becoming available at the contact service, the children spend time with the Father supervised by B Contact Centre as follows:
(a)For a period of six (6) months, commencing the first Saturday of the school term and each fortnight thereafter on a Saturday from 2pm until 4pm at the B Contact Centre, C Street, Suburb D, NSW, or if that time is not available to the contact service then at a time available to the contact service and the Mother.
(b)At the expiration of six (6) months of Order 4(a), the fortnightly supervised time may occur in a public place for six (6) months for a period of three (3) hours on one (1) occasion a fortnight on a Saturday from 1pm until 4pm or if that time is not available to the contact service then at a time available to the contact service and the Mother, such time can be supervised by B Contact Centre or another professional contact service nominated by the Mother.
(c)On Christmas Eve from 1pm until 4pm or at another time available to the contact service in a public place if the contact service is able to provide such supervision.
5.Commencing in 2024 or at the expiry of the twelve (12) month period referred to in Orders 4(a) and 4(b) (whichever is the later) and subject to Order 6, the Father is at liberty to spend unsupervised time with the children as follows:
(a)Commencing the first Saturday of Term 1 in 2024, for a period of three (3) hours from 1pm until 4pm on a Saturday and each alternate weekend;
(b)On Father’s Day for a period of three (3) hours from 1pm until 4pm;
(c)On Christmas Eve for a period of three (3) hours from 1pm until 4pm;
(d)On each of the children’s birthdays for a period of two (2) hours from 3.30pm until 5.30pm if it falls on a day that the Father is not already spending time with the children.
5A.Commencing in 2025 and subject to Order 6, the Father is at liberty to spend unsupervised time with the children as follows:
(a)Commencing the first Saturday of Term 1 in 2025, for a period of five (5) hours from 1pm until 6pm on a Saturday and each alternate weekend;
(b)On Father’s Day for a period of five (5) hours from 1pm until 6pm;
(c)On Christmas Eve for a period of five (5) hours from 1pm until 6pm;
(d)On each of the children’s birthdays for a period of two (2) hours from 3.30pm until 5.30pm if it falls on a day that the Father is not already spending time with the children.
5B.Commencing in 2027 and subject to Order 6, the Father is at liberty to spend unsupervised time with the children as follows:
(a)Commencing the first Saturday of Term 1 in 2027, for a period of seven (7) hours from 11am until 6pm on a Saturday and each alternate weekend;
(b)On Father’s Day for a period of seven (7) hours form 11am until 6pm;
(c)On Christmas Eve for a period of seven (7) hours from 11am until 6pm;
(d)On each of the children’s birthdays for a period of two (2) hours from 3.30pm until 5.30pm if it falls on a day that the Father is not already spending time with the children.
5C.Commencing in 2028 and subject to Order 6, the Father is at liberty to spend unsupervised time with the children as follows:
(a)Commencing the first Saturday of Term 1 in 2028, for a period of nine (9) hours from 9am until 6pm on a Saturday and each alternate weekend;
(b)On Father’s Day for a period of nine (9) hours form 9am until 6pm;
(c)On Christmas Eve for a period of three (3) hours from 9am until 6pm;
(d)On each of the children’s birthdays for a period of two (2) hours from 3.30pm until 5.30pm if it falls on a day that the Father is not already spending time with the children.
6.To facilitate the supervised time the children spend with the Father referred to in Order 4, the following is to occur:
(a)The time the Father spends with the children is to be supervised by B Contact Centre supervised contact service or at another supervised contact service nominated by the Mother and all costs of such supervision is to be paid equally by the Mother and Father.
(b)The Mother and Father will contact B Contact Centre within seven (7) days of the Orders and provide a copy of these Orders to the service and make a referral for supervised contact.
(c)Upon a place becoming available at B Contact Centre, the time in Order 4(a) will commence with the Father and the children.
(d)The Mother and Father shall comply with all intake procedures and policies and follow all reasonable directions of the supervised contact services whilst ever the children spend time with the Father at a supervised contact service and the parents shall continue to pay half of all the costs associated with the supervision service.
(e)The Mother is at liberty to obtain all the reports of the contact visits between the Father and the children and the Father is to pay half the costs associated with any of the reports requested by the Mother.
(f)In the event that the Father does not pay his share of the contact centre fees for the intake procedures, reports, contact visits, changeovers or any other associated costs required by B Contact Centre or any other professional supervised contact services, then his time referred to in order 4 is suspended.
CHANGEOVERS
7.All changeovers to facilitate the time will occur at the supervised contact centre or at a place nominated by the Mother through the supervised contact service and communicated by the supervised contact service to the Father unless otherwise specified by these orders and the parents shall share equally the costs of the contact service.
SUPERVISED TIME
8.The Father is to notify the supervised contact service within seven (7) days of the date of the scheduled visit referred to in Order 4 whether he is unable to attend and for that purpose if he is not able to attend the time with the children then it is cancelled for that occasion only and in those circumstances any costs associated with supervised time or changeover is to be paid solely by the Father.
9.In the event that the Father is unable to pay the costs of the supervision, then the time is suspended until such time the Father is able to pay the costs associated with supervision.
10.The Father’s time referred to in Orders 4, 5, 5A, 5B and 5C is suspended in the event that the Father does not comply with the restraints referred to in order 27.
CONDITIONS TO MOVE TO UNSUPERVISED TIME
11.The time with the children and the Father referred to in Order 5, 5A, 5B and 5C is to only move to unsupervised time PROVIDING THAT the Father is able to meet the following conditions:
(a)Undertake a hair strand test for illicit substances and alcohol for a period of six (6) months usage with Company E at City F or City G NSW and such test must show a negative result for all illicit substances and a result for alcohol showing a moderate consumption use (or less);
(b)This Order provides authority for Company E to provide, directly to the Mother, a copy of the results of the hair strand test referred to in order 11a, to the Mother’s email address at …com or another email address as provided to Company E by the Mother.
(c)The Father is to provide a report from his treating psychiatrist that provides for his current diagnosis, current list of medications, compliance with medications, treatment regime and whether his mental health is currently stable and has been for a period of twelve (12) months;
(d)The time referred to in Order 4 that provides for supervised time between the Father and the children has not been suspended on more than four (4) occasions by the Father;
(e)The Father has had no involvement with the NSW Police in respect of complaints made against him for violence, sexual violence, illicit or illegal drug possession, being affected by illicit or illegal drugs, illicit or illegal drug supply or being intoxicated;
(f)The Father has not been charged with any criminal offences.
12.In the event that the Father does not comply with Order 11, then the time he is to spend with the children is to remain supervised in accordance with Order 4(b) with the exception that after twelve (12) months, supervision can be undertaken by B Contact Centre or another service nominated by the Mother.
13.In the event that the Father does not comply with Order 27 or the Father produces a hair strand test that is positive for illicit substances, or the Father does not undertake a hair strand test in accordance with Order 21 then the Father’s time with the children referred to in Order 4, 5, 5A, 5B, 5C and 18 is discharged and the Father has no time and no communication with the children, and any time with the children in the future is at the Mother’s sole discretion.
COMMUNICATION
14.The Father is only at liberty to communication with the Mother when he is spending time with the children unsupervised, providing that:
(a)The communication is in relation to the children as a result of any issue that has arisen during the time he is spending with them; and
(b)Such communication is to be by sms message only unless in an emergency in which case it can occur by telephone call.
CONTACT DETAILS
15.Each parent is to provide the other with their residential address, phone number and email address, and advise the other of any change of those details within seven (7) days.
HEALTH
16.The Mother will notify the Father within seventy-two (72) hours upon any of the children being involved in an accident or serious injury or in an emergency that requires hospitalisation.
EDUCATION AND EXTRA-CURRICULAR ACTIVITIES
17.The Mother provides a copy of the Orders to the children’s school and the Father has authority to obtain a copy of the children’s school reports and school photographs at his own costs.
18.At the children’s school the Father is at liberty to:
(a)Upon the commencement of unsupervised time, attend the events the parents are usually invited to attend and to approach the children and have contact with the children with permission of the school principal.
(b)Attend parent teacher interviews providing that the Father attend a separate parent teacher interview to the Mother.
(c)At the commencement of unsupervised time, end of year assemblies/concerts and have contact with the children at these events.
(d)Only collect the children and remove the children from the school as provided for in these Orders.
19.The Mother is to provide a copy of these Orders to the children’s extra-curricular activity service or sporting association or services that the children may attend from time to time.
20.The Father has authority to obtain directly from the extra-curricular activity service or sporting association copies of photographs at his own costs.
HAIR STRAND TEST
21.If the Father has commenced unsupervised time, commencing from April 2024 and each year thereafter, the Mother is at liberty to request the Father by sms message or email on a random basis on no more than one (1) occasion each calendar year for the Father to undertake a hair strand test for illicit substances and alcohol for a period of four (4) months usage with Company E at City F or City G NSW or another Pathology service nominated by the Mother in the City F/City G region and such test must show a negative result for all illicit substances and a result for alcohol showing a moderate consumption (or less), the Father is to pay the costs of the test. If the Mother makes such a request the Father is to undertake the hair strand test within seven (7) days of the request of the Mother.
22.The Orders provide authority for Company E or another pathology service nominated by the Mother to provide directly to the Mother a copy of the results of the hair strand test to the Mother’s email address at …com or at such other email address nominated by the Mother.
INTERNATIONAL TRAVEL AND PASSPORTS
23.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Mother is authorised to apply for and retain a passport for the children without the Father’s written consent or approval and without him having to sign any documents.
24.Pursuant to section 65Y of the Family Law Act 1975, the Mother is at liberty to travel outside of Australia for holidays with the children without the consent of the Father during which visits the Father’s time with the children is suspended (subject to Order 28).
25.The Mother is to notify the Father by email at his last known email address of the date of departure and return date of any trip and general travel destination within fourteen (14) days of the proposed travel.
H PROGRAM
26.The Mother and Father are to do all acts and things necessary to ensure that the children are referred to the H Program.
RESTRAINTS
27.The Father is restrained and an injunction granted from the following:
(a)Approaching, attending or remaining within 100 metres of the children’s schools, or place of residence (subject to order 18);
(b)From approaching or attending the maternal grandparents residence where the children may attend from time to time;
(c)Approaching or remaining within 100 meters of the residence or place of employment of the Mother;
(d)From removing the children from the Mother’s care or from the care of any other person or organisation with whom she has placed them, except for the purpose of spending time with the children as provided by these Orders;
(e)From spending time or communicating with the children unless otherwise provided by these Orders;
(f)From attending any of the children’s school except as provided by these Orders;
(g)From discussing the Court proceedings or in any other Court proceedings and any evidence or information about any of the Court proceedings or Tribunal proceedings that either the Father or Mother may have been involved in;
(h)From taking any form of alcohol or illicit substance twelve (12) hours prior to spending time with the children;
(i)From behaving violently to any other person in the presence or hearing of the children or from knowingly exposing the children to “Family Violence” as defined in section 4AB of the Family Law Act 1975, a copy of which section is attached to these Orders;
(j)From denigrating the Mother, being critical, or negative of the Mother or the Mother’s family to the children or either child or in the presence or hearing of the children or either child.
(k)From approaching the Mother at changeover of the children to facilitate the spend time Orders;
(l)From communicating with the Mother unless otherwise provided by these Orders.
28.The Father’s time with the children is suspended if the Mother provides fourteen (14) days’ notice by sms message or email to the Father that she intends to take the children on a holiday and in that event she will provide make up time on another occasion for the same period of time on a date nominated by the Mother within a month of the children and Mother returning from the holiday.
29.By consent within 21 days each parent pay to legal aid the amount of $2683.00 towards the costs of the Independent Children’s Lawyer in these proceedings
30.The operation of order 11e is suspended pending further hearing on 31 March 2023 at 9.30am. The parties have leave to appear by telephone on that occasion and the dial in details are:
(a)Dial: …
(b)Enter Conference ID: …#
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Misic & Misic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION:
These proceedings concern the future parenting of two (2) children: X born in 2012 (who is presently ten (10) years and three (3) months of age), and her younger brother Y born in 2016 (who is presently six (6) years and one (1) month of age). Both children attend J School.
They are the children of the applicant in these proceedings, Mr Misic (“the father”) and the respondent Ms Misic (“the mother”).
The parents commenced a relationship in 2004, having met at University of City G. They commenced cohabitation here in 2008. In 2010 the mother moved to the Region K for study purposes while the father remained living in the City G region; the parents continued their relationship.
The parents married in 2011. The mother returned to live in City G in 2015, and the parties thereafter remained together until separation in June 2017. Initially they separated under the one roof but on 31 March 2018 the father vacated the former matrimonial home at Suburb J.
Subsequent to separation the father spent regular but limited time with the children. There was significant tension between the parents, and the father regularly engaged in aggressive behaviour towards the mother, including making threats against her on occasions which I will refer to later in these reasons.
Regrettably, the children were witness to much of the dispute.
Ultimately, in January of 2020 the mother stopped the father from spending any time with the children. This prompted him to bring parenting proceedings in this Court (there already being property proceedings on foot).
The Court made interim parenting orders which had the practical effect that the father was to spend "no time" with the children and he was restrained from approaching them. Indeed, the only time that the father has spent with the children since January of 2020 was for the purposes of the Family Report interviews which took place on 23 August 2022.
THE HEARING:
This matter came before me for final hearing on 6, 7 and 8 December 2022. At the hearing, Ms Ticehurst of counsel appeared for the father, Mr Duane of counsel appeared for the mother and Mr Mooney of counsel appeared for the Independent Children’s Lawyer (“ICL”).
The debate at commencement of the hearing was a stark one. The mother's formal position, indeed maintained by her right up until the trial itself, was that there should be a “no time” order between the father and the children.
Though initially adopting a neutral position in terms of the father's time, the ICL hardened her position such that by the close of the trial she supported a “no time” order. However, by then the mother had decided to retreat from a “no time” position, her formal position instead being that the father should be able to spend some time with the children but on a very limited basis and with significant restraints and other safeguards in place: exhibit 11.
The father had initially sought some limited supervised time with the children, leading to substantial and significant time. But in the course of the hearing he also amended his position. In particular, he reduced the ambit of his claim for time so that, effectively, all he was seeking was some alternate weekend time with the children and no specific orders for time during holidays. He also agreed to various injunctions, including undertaking a hair strand test for drug use: exhibit 12.
For the purposes of the hearing the father read and relied upon:
(a)Case Outline Document filed 5 December 2022, which annexed his initial draft minute of order;
(b)his trial affidavit filed 3 November 2022; and
(c)a further affidavit filed 1 December 2022, which he was granted leave to read and file.
The mother relied upon:
(a)Case Outline Document filed 5 December 2022;
(b)her Amended Response filed 1 November 2022;
(c)her trial affidavit filed 1 November 2022; and
(d)the affidavit of her father Mr K (the maternal grandfather) filed 1 November 2022.
The ICL read and relied upon:
(a)Case Outline Document filed 5 December 2022;
(b)the Family Report, which was marked as exhibit 1.
During the course of the hearing the parties also tendered numerous other exhibits. These will be referred to as relevant. They included various subpoenaed documents and other records.
THE FUNDAMENTAL ISSUE:
Fundamentally, the issue in this case, as it was litigated before me, revolves around the degree of risk posed by the father to these children.
The mother had deposed in her affidavit that the father had been controlling, coercive, intimidating, harassing, abusive and denigrating towards her - at times in the presence of the children. She deposed that he had a history of using illicit substances, misusing prescription drugs and alcohol and that he had a history of violence towards others. She also deposed that she was fearful of the father and that she had serious concerns about her safety and the children's safety given his erratic behaviour, his drug and alcohol use, violence and the content of reports from other people about his behaviour. She expressed a concern in her trial affidavit that his behaviour would continue to be ongoing, and she specifically referred to subpoena material which she had read (relating to the father) which she described as having “horrified me”. I will refer to some of that material later.
The mother was clear in deposing that she did not feel she could co-parent with the father or make decisions with him and did not feel safe to do so.
The ICL, as I have indicated, took the strongest possible view at the close of this case. Mr Mooney submitted that the father was a most unimpressive witness, an observation I agree with, and that the Court ought not to be slow in drawing adverse inferences about the father's behaviour and conduct throughout the proceedings. As a general statement, I also agree with that.
Having said that, the mother was at pains through her counsel, Mr Duane, to indicate that she had been giving the matter careful consideration and that she really did not want to shut the father out of the children's life. She wanted to give him “a chance to prove himself as a father.” If it failed, she did not want it to be “through lack of trying”.
For the father, Ms Ticehurst submitted that he was agreeable to various injunctions; that he had effectively “wound back his claim for time with the children as well as consenting to an order for the mother to have sole parental responsibility; and that the Court should make orders which enable the most meaningful relationship to develop between the father and the children and at a level which, she contended, would still be safe for them.
SOME BRIEF WITNESS OBSERVATIONS:
Before proceeding any further I should make a few observations about the witnesses.
The mother was an impressive witness in my view. She was solemn, she was reserved in her demeanour, she was quiet and as a general statement she answered the questions asked of her. I thought that she did her best to tell the Court the truth, and her evidence was generally impressive.
As I have indicated earlier, the father was a much less impressive witness. He refused to make concessions as to behaviours he had engaged in at various time during the relationship, and he generally minimised or downplayed his actions. I agree with the submissions made, and with evidence of the Family Report writer, that the father has a somewhat manipulative and overbearing character. The report writer described him as having quite strong “dark triad” personality traits, namely narcissism, Machiavellianism and anti-social behaviour. There is significant force in what she said about that.
In the course of the hearing, the father did however “soften” his evidence somewhat. Particularly during cross-examination in the course of day 1 of the hearing, he became somewhat more willing to admit to faults and to own up to some of his past behaviours (but not all), and he made some effort to try to demonstrate insight for some of the things he had done.
The mother was certainly sufficiently impressed by his apparent “change of heart” as to submit to me, through Mr Duane, that he had shown some responsibility for his actions, which, from her perspective, was most welcome and informed her decision to give him another chance with the children.
I generally accept that the father did demonstrate some responsibility for what he had done. Nonetheless he was still in many ways not an impressive witness.
As a broad statement, to the extent that the mother's evidence differs from that of the father, I prefer the mother's evidence in these proceedings.
CHRONOLOGY OF EVENTS:
I will now run through various findings of fact that I have made in this matter, and I will endeavour to do so chronologically as much as possible.
The parents, as I indicated, met when they were each at the University of City G studying for a Masters in Science.
The father, a very driven man, established a number of businesses in the City G area. He targeted a particular type of client, namely the health care sector.
The mother was also involved in this venture, but as a general statement the father was very much the orchestrator of the parties' financial life. I do not think that I have seen many witnesses and many parents who are as driven as he evidently is. The father encouraged the mother to go away to Queensland to study health care, and she went on to study there, which she now practises in in the City G region.
By way of further elaboration as to the extent to which the father is very much driven to succeed, it is quite apparent from the evidence that he quickly came to own and manage a number of businesses in the City G region at a relatively young age. The businesses were successful. Moreover, the husband showed sufficient initiative as to follow up the product through a company that he established. His company was a recipient of one (1) of only some seven (7) licences to produce a health care product. The father showed enormous resourcefulness and resolve in achieving this, which ought to be noted.
Moreover, the father also set up a company in 2015 specifically for the purposes of developing a health care procedure device.
There is absolutely no question either as to the father's intelligence or as to the father's motivation. I should also add that the mother herself is a very intelligent person, and I take nothing away from her in making these observations about the father.
There is, however, an entirely different side to the father to which I have alluded, which is rather a sinister and dark side.
I accept the mother's evidence that throughout the relationship the father was serially unfaithful to her. She lists at paragraph 142 of her affidavit all of the various women that she knows the father had relationships with. There are seven plus (7+) women listed in that particular paragraph.
While his unfaithfulness to the mother is not, per se, relevant to a parenting application it is, nonetheless, relevant in understanding the overall picture of the father, who I described in evidence I think quite accurately as something of a “Peter Pan”, perhaps a man who never fully grew up. I say that because, for all of the father's tremendous intelligence, resolve, resourcefulness and drive, he has also managed in many ways to destroy, in a most spectacular way, much of what he achieved.
Perhaps the father’s unravelling began in 2014 at a time when the mother was at the Region K.
On the evening of 6 July 2014 the father was out drinking at a hotel in City G with one of his friends. There they had some form of altercation with another male and a female who were also drinking at the hotel. It is not entirely clear to me how serious their altercation was in the hotel because, as I have indicated, the father was not an entirely reliable witness as will be seen in the course of these reasons. Moreover, some of these events are matters only he can give evidence about. The father also, I should add, has rather a habit of giving the most favourable version of himself in just about every circumstance, which is another reason that I regard some of his evidence with suspicion.
In any event, the father and his friend had some form of altercation with this other male and female in the hotel such that security staff at the hotel asked both groups to leave. They were sent in different directions. The father and his friend went one way, and this other man and female with him went in a different direction - ending up in the car park at McDonald's at Location L on M Street.
For reasons that only the father will understand, he decided with his friend to cross over to the car park and to confront these people there. Once they reached the car park they punched and kicked the other man, including kicking him in the head and upper body area when he had fallen to the ground. This other lady intervened. The father initially pushed her away, and when she came back a second time to intervene the father hit her in the head. She fell to the ground where she remained for apparently five (5) minutes or so. The father and his friend ran away.
The father had kicked at the male victim's head (while he was on the ground), which seems to be why the woman had decided to intervene (the second time) to try to stop him or otherwise help her friend. It was then that the father knocked her to the ground.
This was an event of savagery and of brutality. The father says that he hit the female victim with an open hand. According to CCTV records and the victim's complaint to police, the father punched her, but perhaps it does not make much difference. It was a savage, cowardly attack from a practising health professional, and it is really quite an extraordinary event.
The father was charged with two (2) counts of assault arising out of this event. He went off to get a Mental Health Plan (from his GP) and saw a psychologist.
The father’s initial hope had been that he would be able to avoid criminal prosecution per se by having the charges dealt with pursuant to section 32 of the Mental Health Act (NSW) which effectively provides that in certain circumstances a person can be diverted away from the criminal law system and into the mental health system where appropriate.
To this end, the father went to see a Dr N, Forensic Psychiatrist, who wrote a report which appears as exhibit 4. The contents of the report are disturbing and one would think highly relevant in terms of the father's very unhappy childhood and his exposure to some tragic and, indeed harrowing abuse when he was a child, which may, in turn, inform the dark traits that he now possesses.
The father told Dr N that he had been raised in a violent and abusive environment where the man he thought to be his father was in fact his stepfather, had beaten him violently on many occasions, including with implements. He was told not to cry, or he would be hit harder. He had younger siblings. One of them had a quite serious physical illness, a severe disability.
The father did not know it at the time, but his biological father had apparently suicided when the father was just a baby, and apparently suicide is a significant feature of the father's biological family genealogy.
Apparently just days, or perhaps weeks, before this event in July 2014 the father discovered that he had been adopted, and that he was not, in fact, the biological child of the man he thought was his father, who had been so violent to him. Worse, he also discovered that his particularly disabled younger brother (or half-brother) had died the year before and that the father’s family had never told him about that. (It is quite clear from this that the father had had a “falling out” with his family some years earlier – and prior to finding out he had been adopted.)
The father also told Dr N that, as a child, he was sexually abused by a family friend.
In short, the father had about the most traumatic, dysfunctional, chaotic childhood upbringing one can imagine.
Against that background Dr N opined that the father may possibly have a chronic post-traumatic stress disorder (“PTSD”) from his childhood. He considered that the father needed some immediate to medium-term counselling in relation to many unresolved issues, including dealing with his recently acquired complex and traumatic family history. Dr N considered that the father was clearly very distressed - particularly about his actions towards the female victim in particular - which actions Dr N said were uncharacteristic.
The father told Dr N that inside the hotel he had first been assaulted by the male victim and that the female victim had, in fact, poked her finger into his eye. He said that this had been particularly “triggering” for him given the nature of his work and his need to have good vision. The father’s position was effectively that he had “snapped” on this occasion.
Dr N considered that the Local Court could deal with the criminal charges pursuant to section 32 of the Mental Health Act. However, his report also noted the following:
I think this man's risks of reoffending, as noted earlier, are negligible to non-existent but he would certainly benefit from some ongoing support and assistance not only from his GP but from a psychologist.
That is to say, Dr N clearly thought that the father was at no real risk of re-offending. It will become apparent that, with all due respect to him, Dr N was quite wrong.
The father went to see a psychologist, Ms O, as set out in exhibit 5. The version of events that he gave to the psychologist was sanitised – and in my view, significantly sanitised. I read from the report:
[Mr Misic] presents with symptoms of anxiety and stress triggered by a criminal charge that he is facing after a fight outside a nightclub when two men were injured after they reportedly attacked him and he defended himself. This event occurred very soon after [Mr Misic] had discovered that the man he had always believed to be his biological father was, in fact, his stepfather.
This is simply incorrect and a great minimisation of what, in fact, happened.
Notably, the psychologist recorded that the father needed a treatment plan which would include:
Supportive counselling with a focus on coping with the impact of his current situation and the perceived injustices in addition to processing the impact of his recent discovery.
The father was not happy with this particular psychologist and apparently tried to arrange to see someone else. In the end he only attended just the one (1) session. He did not end up seeing another psychologist at that stage.
In the result, the Local Court did not dismiss the charges pursuant to the Mental Health Act. The father pleaded guilty to two (2) counts of common assault. No conviction was recorded. He was admitted to a two (2) year good behaviour bond with a requirement that:
He continue treatment with a psychologist for as long as required and continue to take medication as prescribed.
I note here that the father did not notify the relevant medical authorities either as to his being charged with these offences, or having been found guilty of them. As will be seen, this was to cause him further trouble later on.
The mother having returned to City G in 2015, I accept her evidence that the father was largely an absent father and husband. As I have already indicated, he was serially unfaithful to her. He regularly went away on weekends. He lived something of a party lifestyle, a self-indulgent lifestyle. He would regularly socialise and leave her and the children at home. He was rarely available to assist when the mother wanted him to help her out. She ended up calling on her parents to do so.
I accept the mother's evidence that the father would regularly engage in binge drinking and that he abused prescription drugs and in that regard I note that the father had a back injury for which he was sometimes prescribed opioids.
The father also used ecstasy (or MDMA) as well as cocaine - all of which he admitted to the mother.
During the mother's labour with young Y the father was using her nitrous oxide in the hospital except when the Nurses were able to see what was happening - when he then stopped.
When Y was just four (4) days old the father went out partying with friends, these people being friends who had told the mother that they were frequent users of methamphetamine or “ice”. I accept the mother's evidence that the father came home in the very early hours of the next morning almost incoherent, very drunk and in her observation under the influence of a drug. He told her he had used drugs. He said he was sorry that he was not good enough. He said he had suicidal thoughts. She told him he needed to seek help. She helped him shower and helped him get into bed in the spare room.
To be fair to the mother, at that time she had a baby (Y) and a toddler (X) to look after and then had to look after the father as well - which was most unreasonable on any view.
Notably, the father dismissed any later suggestion by the mother that he ought to do anything about it. He simply said he had been “drunk” and did not get any help at all.
By Christmas of 2016 the parents' relationship is probably neatly summed up by the Christmas card that the mother gave the father which was emblematic of the “Peter Pan” lifestyle that he was living. In her “Merry Christmas” card under the heading “My Rules” the mother said:
Dear [Mr Misic],
(1) I can change my mind at any time
(2) No relationships
(3) No dating
(4) Physical interaction only. No personal intimacy
(5) Not the same person on multiple occasions
(6) Safety, ie, no STDs or pregnancies
(7) Doesn't interfere with family time, eg not coming home, staying overnight, missing events, away for many hours. We are still your top priority,
(8) No one that can be connected
(9) Don't tell anyone about anything
(10) Doesn't affect our relationship or our sex life
(11) No sex tapes or photos
(12) No gifts
(13) No holidays
(14) No texting, etcetera, all the time at home
(15) Don't stop loving me
(16) Anything else I might want to add later.
Love always and forever your loving wife.
And it is quite apparent from reading all of the evidence in this case that this card was an acquiescence by the mother in the fact that she could not stop the father going out and having sex with other women and being an absent husband and absent father. She just wanted to put in place some rules around it.
I might add that the father was a fairly poor complier with just about all of those rules. He had multiple “other” relationships which were quite lengthy.
In some ways the Family Report writer touched upon these issues at paragraph 50 of the report as well as in other aspects of the report. She observed that the dynamic between the parents was that the mother felt put down and responsible for the father's happiness and family stability. She felt emotionally manipulated and controlled by the father. The father blamed her for their circumstances.
It seems to me that, as reported in paragraph 118 of the Family Report, the mother was a peacemaker and that she tried to pacify the father and generally try to hold the family together despite his behaviours.
On 2 September 2016 the father perpetrated another serious act of violence - this time against one of the patients of one of his businesses.
According to the father, the background was that this particular patient - with whom he had previously had difficulties because of the patient’s behaviour - was consistently loitering around the door of the business. The father had told him not to do so. It was also contrary to relevant legislation. One particular day the father says he went outside and told this patient to leave but that he did not. Instead the patient was trying to get “another product” from him and, ultimately, the father told this patient that he could no longer return to the business.
In the leadup to the day in question, this patient had returned to the business five (5) separate times after the business had closed, essentially making a nuisance of himself and always when the father was on his own. The father says that on one occasion he felt “trapped” in the business and he called Police who ended up coming some four (4) hours later.
On 2 September 2016, the father says that at around 7 pm he was working at the business and saw a person on the footpath outside. The business had shut some six and a half (6 ½) hours earlier. The father said it was dark and he did not recognise the person on the footpath other than the person appeared to be a male. The person called out, “Someone needs help.”
The father deposed that:
I went outside to see what was happening. The person I had seen on the footpath outside the [business] was about 10 to 12 metres down the road standing near a person crouching beside a car. When I approached the person crouching beside the car whom I assumed was the person who needed help, another person whom I believe was the person standing on the footpath outside the [business] hit me in the head from behind. He did not make solid contact. A third person appeared and one of them grabbed hold of me around the waist. I stood up and defended myself. I recognised the person who had hit me as the person whom I had refused to have on the [program]. I ran away through the Department of Housing flats opposite away from the [business]. After a while I circled back around, returned to the [business] and called the Police. A female witness gave Police a statement which supported what I had told them happened. I was charged, with among other charges, assaulting one of the three people referred to above. I defended the assault charge referred to above on the basis I was defending myself, but following a hearing in May of 2017 I was convicted of the offences of intimidate, intending to cause fear of physical or mental harm and assault occasioning actual bodily harm. I was ordered to perform 140 hours of community service and to enter into a 24 month good behaviour bond. I fulfilled the community service order mowing lawns at the [Location P] in [Suburb Q] and I complied with the bond.
One might wonder from that description what the father actually did wrong. It was an example of him providing a sanitised version of events - one that did not represent the truth.
To be fair, in the witness box the father did admit that he was willing to accept what he said were the “Police facts” and which demonstrated that on his part he had displayed disproportionate actions going above and beyond self-defence.
According to the subpoenaed Police records, the victim in question had certainly been loitering around the business - but the father had decided to get some gloves from the office and to lock the premises and go and confront him. The father began putting on the gloves and said, “Come on, let's do this. I'm going to sort you out.” The victim turned around and began running away, tripped and fell to the ground. The father jumped onto him and punched him in the head, face and cheek a number of times. He grabbed the victim's left arm, putting it between his legs. He laid over the victim and placed him harm in an “arm bar hold” hyperextending the victim's arm. He then punched the victim in the face again with both hands before pulling in close to him and saying, “You tell anyone I will come fuck you up. This is what [sports] does to you”.
When Police attended they noticed that the victim was bleeding from his mouth, and that he had swelling, bruising and red marks to both eyes and cheek bones. He was conveyed to the R Hospital.
Police spoke to the father. He had no injuries to his face or hands. He had just a minor bruise on his left leg. Police spotted the pair of yellow padded gloves which were believed to have been worn by the father. The gloves had blood on them according to Police and they also saw that the father's pants appeared to have blood on them. They noted that:
While speaking with Police the accused (the father) walked towards the gloves on the ground and dropped a black jumper on top of them.
In the witness box the father said that he was “packing stuff away as he was about to go home” and he was not hiding the gloves. I reject that evidence.
He also said that he was wearing garden gloves, not padded gloves, and that he had put gloves on because it was possible that he could end up with blood on himself and that it was just basic hygiene. There may well be some truth to that but it is also clear to me that he decided that he was going to go out and teach this other man a lesson. The father was letting his violent and dark side take control and it was not the first time.
The father was convicted of serious offences: assault occasioning bodily harm (“AOBH”) and “stalk/intimidate intending physical, etc, harm”. These are serious offences. As a result of his convictions his earlier bonds in relation to his two (2) common assault charges from 2014 were called up and convictions were recorded for those.
According to his criminal history at least, the father apparently lodged a severity appeal, but it seems that it made no material difference to the ultimate sentence.
This then led to the father having significant problems with the Australian Health Practitioner Registration Agency. In short, “the clock was ticking” from May 2017 in terms of his registration as a health care professional: a proceeding in the New South Wales Civil and Administrative Tribunal (“NCAT”) was about to come. And I absolutely accept that the father was under great pressure and stress - particularly having to manage the various financial obligations that he had by that stage. This does not excuse his behaviours that follow but it does put into context that he was a man under enormous pressure.
In the meantime, and despite their separation, the mother had managed to convince the father to participate in some counselling with one Ms S (based in Sydney) who is apparently a sexual counsellor or a counsellor who provides counselling to couples in relation to sexual issues.
I should observe here that on 2 November 2017 the father was interviewed by Ms S and completed the intake form for that counselling. One of the questions asked was:
Do you currently use or do you have a history of using illicit drugs?
The answer recorded was:
Yes, cocaine and MDMA.
The father’s affidavit falsely denied that he had said such things to Ms S. At paragraph 16 he deposed:
[Ms Misic] alleges I have used illicit substances, including cocaine and MDMA, I deny that is, or was, the case during our relationship or at other times. I deny telling [Ms Misic] I used cocaine, MDMA or other illicit substances. I was present, with [Ms Misic], in a consultation with [Ms S], a counsellor [Ms Misic] had arranged for she and I to see, when [Ms Misic] told [Ms S] I used cocaine and MDMA. At no time did I tell [Ms S] I used those substances.
I reject that evidence unequivocally.
At the hearing, Ms S was called to give evidence by the ICL and she was adamant that the father had told her these things during a Skype conference. She remembered speaking to him and asking him the questions and she also said that it was her standard methodology to have each patient give them their respective information prior to starting counselling. That is to say, she asks each patient about their circumstances and she takes the history from each patient individually.
It would be strange, in my view, if a counsellor were to record the details of one party’s intake form by reference to what the other party said about them. It just would not make sense. Moreover, having seen the father give evidence in this case I would be stunned if he would have sat quietly by while the mother “falsely” told Ms S that he was using MDMA and cocaine. He simply would not have let her say that to Ms S without correcting the record. He is a very strong person - indeed described as overbearing - and I have no doubt that he would have corrected it if the mother had done so.
Now, the mother may well have told Ms S that the father used these drugs. I do not question that, but the father is the person who gave Ms S the information set out in that intake form. In my view, paragraph 16 of the father's affidavit was no more than an attempt by him to try to “cover” for an “unfortunate” subpoenaed record [ie. the intake form] that had happened to come to light. His denial in paragraph 16 was plainly false.
I should also add that in the same intake form, the father admitted binge drinking on weekends, something which he was also rather evasive about at trial. In the form he also admitted to having affairs and to seemingly having some form of sex addiction.
At or about the same time that the father was consulting with Ms S, he was trying to renew his health care professional registration. But he had a small problem – namely the very serious criminal convictions that were now recorded against him.
I have the judgment from the relevant NCAT proceedings before me; it is annexed to the mother's affidavit. And again, it is worth recording what the father actually told the relevant authorities at the time of renewing his registration. And, in particular:
I was convicted of an assault on a man who tried to rob me. I have already faced the [Health Professional] Board and they took no action on my registration.
The father well knew when he told this to the relevant authorities that it was a gross minimisation. Indeed it was pretty close to a falsehood in my view.
In any event, the Healthcare Complaints Commission decided to bring disciplinary proceedings (in NCAT) against the father alleging that he had engaged in “professional misconduct” because he had never disclosed to the Australia Health Practitioner Registration Agency that he had been charged and found guilty in relation to the 2014 offences or that he had been charged and convicted of the 2016 offences. The Healthcare Complaints Commission sought a finding that the father was guilty of professional misconduct - effectively tantamount to “dishonesty by omission”. Additionally they sought a finding that he was unfit in the public interest to practice and, thus, that he be de-registered as a health care professional.
As I have indicated, those proceedings loomed over the father and no doubt significantly increased the stress that he was under.
It is clear from the NCAT decision that the father ran a “clever” but entirely artificial legal argument relating to his notification requirements which argument was entirely rejected. NCAT found that he had deliberately avoided telling the Australian Health Practitioner Registration Agency about the offences and they found him guilty of professional misconduct.
More significantly, they decided that he ought to have his registration cancelled because according to them - and this is at paragraph 118:
Unless and until the father receives ongoing and regular treatment to address his anger management issues we share [Dr N]'s opinion that it is unknown what risk the father might pose if confronted by an aggressive or demanding patient.
I should record here that this was a reference to a report prepared by Dr N in 2019 which stated that the father had unresolved anger management issues and that there were unknown risks he may pose if confronted by an aggressive or demanding/difficult patient.
According to NCAT at para 118 while the risk posed by the father to an aggressive or demanding patient was “low” it was:
nonetheless real and material.
But I have jumped ahead somewhat in talking about the NCAT proceedings which occurred in 2019.
I will now return to 2018 for a moment at a time when the father obviously had these matters looming over him.
It is clear that he did what he could to try to reassure the mother that he could change and that he could be a more reliable parent and perhaps husband as well. He gave the mother a letter around March of 2018 stating, amongst other things:
I will stop all drug and alcohol use.
In my view, this was an admission that he was misusing drugs. In the witness box, however, the father said that was only a reference to “prescription drugs” which I do not accept. In fact, the father, in my view, continued to use drugs and to abuse alcohol.
On 24 June 2018 the mother found a “crushed up powder” at home on the kitchen bench. She confronted the father about it. He admitted it was an Endone tablet for his back pain and he said that he had “snorted it” for quicker pain-relieving effect.
In the witness box the father admitted he should not have done this. I accept the mother's evidence that this was not a “one-off” event and that the father had told her that he snorted such medication with friends at parties and festivals. (The father had been diagnosed with ADHD and prescribed Ritalin and related medication in the past.)
In June of 2018 the mother found a box in the father's cupboard which contained various drugs. The father said the drugs were Diazepam for muscle spasm and pain, erectile deficiency tablets and diet supplements. In the witness box the father admitted that one of those diet supplements, Dimethylamine, was a stimulant for use in gym workouts which has since been illegalised.
During this period, the parties were separated and the father was initially staying in a commercial premises that did not really have a suitable bedding arrangement for the children. He would see the children for three (3) afternoons a week for about four (4) hours each time and this was really all that he wanted. He was not committed to spending more time with the children. In my view, he was continuing to live the “party lifestyle” that he had always lived.
In 2018 the father travelled away to Country T with a female who he was in a relationship with. He was exploring the possibility of setting up a health business . I am satisfied that the father also used to use medications as a form of stimulant or recreational drug.
There were tensions between the parties at this stage because although the father had moved away from the home he continued to come back in, essentially whenever he felt like it. The mother did not feel confident enough to tell him to leave and the father took the view that he was perfectly entitled to come to the house whenever he wanted to because he was, at that stage, still paying the mortgage. It was an unhealthy dynamic where the mother was doing all of the parenting and the father was, effectively, living the free life of a single man and with limited responsibility demonstrated for the children - save for the father actually earning an income (to support them).
At 1.30am on 25 October 2018 the father came to Police attention in Sydney when he had been travelling in a cab which had to stop and let him out so he could vomit. Police were called to attend. The father was sitting in a drunken state with vomit all around him and Police observed that he was well affected by an intoxicating substance. Certainly, this would seem to be alcohol at the least but it is absolutely possible that the father was also under the influence of a drug at the same time. Only he would know.
Just five (5) days later he was again out for a night on the town in City G. He was with a female companion when, at 3.30 am, she hailed what she thought was a cab but somewhat unluckily for her it turned out to be the Police. For reasons only the father will understand he decided to yell out “fucking pigs” which was hardly likely to engender positive feelings from them towards him. They charged him with using offensive language for which he ended up later paying a fine. It was just another example of the father being drunk.
Worse was to come in 2019 in terms of the parents' relationship and their incapacity to make the co-parenting arrangements work smoothly. As I have indicated, the father was under significant pressure and was genuinely worried about the NCAT proceedings which at that stage were still looming.
On a number of occasions in 2019, the father made threatening or otherwise denigrating comments to the mother. Sometimes he did so in the presence of the children, though not always, and he certainly put pressure on the mother - quite deliberately so.
In March of 2019 he threatened her on the phone as she would not give him money from the sale of some shares in a company known as Company U. He threatened that he would stop paying school fees, that he wouldn't pay the mortgage anymore and that he would ruin the mother's credit rating. That night he turned up at the former matrimonial home at 10pm threatening to change the locks on the house, move back in and make the mother's life a living hell. As he left he told her: “You picked the wrong person to fuck with. This is going to get so fucking bad for you.” I consider such behaviour to constitute “family violence” within section 4AB of the Act.
To be fair, I should note that the mother was using the money from the sale of shares to meet the mortgage repayments and she was living in the house - but this does not excuse the father's aggression towards her.
At Easter time in 2019 the father initiated property settlement discussions with the mother while the children were present. This was inappropriate.
The mother allowed the father to have an overnight with the children at Easter 2019 but this did not work well for them. They were later upset when they came back into the mother's care and X said that she and Y had “cried themselves to sleep”. She said that they wanted to ring the mother but the father wouldn't let them.
When the mother then took the children away to Sydney during the Easter holiday period, the father came around to the home uninvited and angry. He told the mother that if she took the children away again without telling him that he would come and “take them off her wherever she was” and he “would not give them back”. He told the mother that she should not let her solicitor tell her that this was a threat - as it was not a threat. In my view, it was a threat and it constituted, in all likelihood, “family violence”.
I should also add that nowhere in the father's aggressive statements to the mother was there any recognition that he had gone away to Country T for some six (6) weeks in 2018 about which she had no say whatsoever. The father might say in response: “I did not take the children with me” but in terms of his attitude that is beside the point in my view.
In the leadup to the NCAT hearing the father went to the mother's home uninvited a number of times and was generally rude to the maternal grandparents who were obviously doing what they could to try to assist and support the mother to manage this difficult situation.
On 19 June 2019 the mother came home to find that the father had put his suitcase in X's room and filled the pantry full of food that he liked. He physically came back to the home later at dinnertime expecting to stay there. He told the mother she could not make him leave. The parties got into an argument with the children present. The maternal grandparents came over. They had planned to come over already. Police were called and the father ended up leaving.
Some five (5) days later on 24 June 2019, the maternal grandparents were at the home looking after the children and the father confronted them most aggressively. He collected the children from the home, having not said a word to either grandparent. After putting the children in the car he then came back into the home and abused the maternal grandparents for allegedly “trespassing” at the house. He told both of them to “fucking get out of the house” and asked them whether they wanted to be “frogmarched out”. His behaviour was aggressive, inappropriate and intimidating. X later confided in the mother that the father had wanted to call the Police and that the father had essentially lied about the grandfather having yelled at him first and the father also said that he might punch the grandfather in the face. All of these behaviours on the father's part were entirely inappropriate.
I should say that the father had, in fact, called the Police on this occasion. Clearly, Police did not follow up on the matter.
On 1 July 2019 X told the mother that she was “heartbroken” about the father having called Police in relation to the grandparents as well as telling her that “Dad said you were being greedy for money”. I accept that children of X's age can say things that are not always reliable, particularly in a high conflict situation, but her statements to the mother have the ring of truth about them, particularly, given the father's numerous other behaviours and disparaging references to him having earned all the money, or made all the money, or words to that effect. The father was clearly angry and upset and I am satisfied that he said these things.
By 16 July 2019 the mother had installed security cameras at the home because she was becoming anxious about being there on her own.
On 6 August 2019 the father came around to the home asking for overnight time. The mother asked him to undertake a hair strand test before she would agree. He threatened to use her diabetes condition against her. It was an unpleasant scene.
The father spent time with the children on Father's Day 2019, but returned them late having ignored the mother's attempts to call them in the afternoon. This was an example of the father controlling things and letting the mother know, effectively, who was “boss”.
On 2 September the father was being critical of the mother at handover for having apparently put his clothes in bags at the front of the house to collect. He threatened that if she did it again he would come and remove her belongings from the house. Y piped up at that stage to say, “Hey, don't speak to my mum like that”.
At a handover on 26 September 2019 the mother said she was going on holiday with the children. The father was very unhappy about it and was very critical of her about going. I have a transcript of that particular interaction and, frankly, it is rather tragic reading. Clearly, the father was wanting overnight time and feeling as though the mother was being unreasonable in refusing to agree. But it is also clear that his approach was very much a “tit for tat” one. That is to say, if he could not have overnight time, she could not take the kids for holidays. When X at one stage talked about catching up (on the holiday) with her friend “V” she was clearly shut down by the father who was much more interested in arguing with the mother and proving his point than in listening to his daughter. X was effectively “cut down in the crossfire”. At one point later she starts crying. It really is a sad transcript to read.
When the mother was away on holidays for the next ten (10) days or so, I accept the father's evidence that he was “freaking out” and “fretting” (his descriptions) about the mother and children being away.
On 10 October 2019 when they arrived home, he decided to attend at the house at about 11.30pm. He let himself into the house and the mother awoke to see him standing at the foot of the bed. In the circumstances these parties were in I regard that to be a form of stalking and, therefore, “family violence” as defined in section 4AB. It was entirely inappropriate behaviour by the father.
I accept the mother's evidence that on 17 October 2019 X told her that the father had been saying that the mother was trying to “take all his money” and that the father's partner, Ms W, had said the mother was being “greedy”.
I should also add that on 11 October 2019 NCAT had cancelled the father's registration as a health care professional but that such de-registration was not to be take effect until 10 December 2019. This may perhaps explain, in part, the escalated behaviour of the father around this time.
On 19 October 2019 the father aggressively threatened the mother in front of the children that “You have so much ahead of you. It is going to get so bad for you.” He also told X that the mother was trying to keep her away from him. His behaviour was threatening and, in my view, “family violence”. At the very least it was denigrating and entirely inappropriate. Some four (4) days later the mother changed the locks at the house and had her solicitor write to the father asking that he not attend there anymore.
On 1 November the father berated the mother over and over again for being “evil”. He told her: “You are evil. You are so evil” about six (6) or seven (7) times. He said: “I am going to wait 10 years and then tell X you were going to get her to change schools and how evil you are and turn her against me.” [sic]. He told the mother she was “evil deep down to her soul” and that he was going to tell the children how evil she was. In my view, this was threatening behaviour. It was a “repeated derogatory taunt” and it was family violence.
On Boxing Day 2019, the father not having seen the children on Christmas Day, he threatened to keep the children unless the mother agreed not to go away with them on holidays. The mother ended up calling the Police to get the children back from him. The father, sensibly, returned the children to her at 8pm.
The day the mother went away on her traditional Christmas holiday with the children on 28 December 2019, the father - having messaged and attempted to contact the mother - decided, again for reasons best known only to him, to attend the home at Suburb J where the mother recorded on the security camera that he sat with Ms W and ate dinner on the deck. It is difficult to know what to make of this particular action, although in my view the most likely inference is that the father was exerting control and letting the mother know that he would be continuing to treat the house as his own.
Ultimately, as I have indicated, the mother stopped the father spending time with the children effective from January 2020.
The situation between the parents had escalated to the point that it was toxic for these children. Something needed to be done. In my view, the arrangements that the mother put in place, effectively suspending the father's time, could be seen to be “high-handed” and perhaps an overreaction. But it is difficult to see what more could have been done. The situation was unworkable in my view, and certainly not in the children's interests. They were regularly being exposed to high levels of conflict which is well-known to have an adverse impact on children.
In 2020 the mother commenced property settlement proceedings. She had applied for child support payments from the father, who had allowed significant arrears to accrue. He did not make payments. To be fair to him, the mother was living in the former matrimonial home and had access to some matrimonial property but it is also clear that the father was not happy to be paying regular child support for the children.
Once again, the father found himself in more difficulty with the law. On 29 July 2020 one Ms Z made a complaint about the father to the Healthcare Complaints Commission. She accused him of having in some way sexually assaulted her although the details of that allegation are unclear.
The father discovered that the complaint had been made. On 18 August he contacted Ms Z by Facebook Messenger using a profile “Mr Misic” and this is what the father said to her:
Hi [Ms Z]. I was shocked to hear you made that complaint against me. I have always liked you and been very kind.
You may no recall [sic – should be “not” recall] how I would speak to you to try to grow you, enhance your career and self-esteem or the time the guy went creepy on you on the date at [Location AB] and I was in my car to come and protect you before you even asked me to. I am in an awful position at the moment. I have lost all my [businesses] and my ex-wife has taken my children from me and I have not seen them in 8 months. This complain [sic – should be “complaint”] has more serious ramifications than you expected on me. I believe my ex-wife is involved in this in some capacity.
(And I record here that the mother absolutely was not)
You requested in many of our messages that I be dominant. I never had any intention of hurting you and if I did you know it was not purposeful, but, regardless, I apologise. The allegations you made will stop me from ever being a [health professional] again and my ex-wife will use this to portray I am violent which you know I am not and I will never see my kids again. The last year my brother died and I lost my will to live without my kids. I hope you can find it in your heart to retract your complaint. I can't go on if I can't see my kids.
Ms Z blocked the father and did not respond.
The message from the father is an interesting one. He does not refer to any specific allegation in relation to sexual conduct beyond seemingly acknowledging that she had requested that “I be dominant”. His apology comes across as half-hearted at best. But to be fair to him, he certainly is not admitting - nor am I making any positive finding as to him - having done anything in that regard. The fact of the matter is that Ms Z never pressed her complaint.
What I do find interesting though is that the father referred to his brother having died last year. If this is the same brother to which he referred in 2014, which is rather what I suspect, then it reflects very poorly indeed on Mr Misic. There is no evidence before me as to any brother of his dying in 2019. And if that was what he was trying to convey then it is an example of manipulation in the extreme.
Some three (3) days after the father messaged Ms Z on Facebook, he and Ms W attended Ms Z's workplace. Ms Z yelled at him to leave. She went to the staff room and asked them to call the Police. In my view, it was an attempt by the father to try to get her to retract whatever complaint she had made whether it had merit or whether it did not.
On 21 August 2020 following a complaint to Police, they took out an AVO against the father protecting Ms Z from him. He was also later charged with an offence under the Healthcare Complaints Act, as well as interfering with a witness.
Ultimately, the father was convicted of these offences and given an Intensive Corrections Order. These are, again, very serious criminal offences which one would not ordinarily associate with professional persons of the intelligence, education and obvious drive and talent as Mr Misic. They highlight his dark and pervasive traits.
On 27 August 2020, some six (6) days after attending Ms Z’s workplace, the mother was driving to work when she saw the father driving his distinctive motor vehicle. Although the father denies it, I accept the mother's evidence that he turned his vehicle around and followed her car including down side streets, parked opposite her work and then drove away. He was attempting to stalk or intimidate her to give her a message and, in my view, this was family violence.
The mother subsequently brought a complaint to Police about family violence on the father's part.
On 6 September 2020 the father brought what seems to be a “tit for tat” complaint against the mother to the Business Council of New South Wales. He was retaliating, in my view, for what he anticipated or considered was her behaviour towards him.
That the father had a capacity to engage in “tit for tat” and otherwise mischievous complaints about the mother, and that he could behave in a Machiavellian way towards her, is perhaps best illustrated by what occurred on 23 June 2020 in relation to one of the businesses that the parties owned.
Post-separation the father had been managing the businesses with the assistance of one Mr AC (a health care professional). Of course, by then the father had run into the difficulty with the NCAT orders and was unable to himself be managing the businesses and so he had, in a sense, had Mr AC run them for him. The mother was not really involved in any of the conduct of the businesses.
The parties had had a mediation in 2019 and it seems that in early 2020 there were ongoing difficulties concerning the transfer of these businesses out of the parties' names. The father could not keep the businesses because of his registration difficulties. He had assigned - or sold - two of them to Mr AC and there was some dispute about the value of the remaining businesses and how they could or should be transferred by the mother to someone else, including Mr AC.
In any event, I accept that there was something of a buildup in early 2020 concerning these businesses. Mr AC was finding himself in an increasingly awkward and difficult situation as he was troubled at being “caught between” the wife and the husband and issues relating to the husband's health care registration. And frankly, Mr AC wanted to stop working for them and move on.
It seems, to be fair, that the mother had not been as responsive with Mr AC as she might have been. It is clear from emails between them that he had been trying to sort out the business businesses with her (including their transfer) since 2 June 2020 and that, to some extent, Mr AC was stuck entirely in the middle of the parties.
But what happened on 22 and 23 June is worth noting as it forms part of the relevant history.
At paragraph 48 of the father's affidavit he deposed that on 22 June 2020 the mother had made an application to the Court for interim and final property orders, with the matter first being listed before the Court on 29 June 2020 for a directions hearing. He said that because the mother's lawyer had asked him not to contact the mother, and generally to behave in a more civil manner towards the mother, that he had not contacted the mother between 13 January 2020 and 23 June 2020 when she then called him twenty-one (21) times in a row, starting at 7.36am. (His affidavit originally asserted that she had called him seven (7) times but this was corrected).
Read on its own, that paragraph of the father’s affidavit suggests that the mother had decided on 23 June 2020 to harass or otherwise annoy the father by ringing him a very large number of times.
What in fact happened was that on the night of 22 June 2020 - the very night that the mother had filed proceedings - Mr AC had sent an email to her, effectively saying that he had shut the business and was finished there and would not be returning the next day. The mother did not see that message until a little later. She organised for a security guard to go to the relevant business with her the next morning together with a locksmith.
I have in the mother's affidavit her version of events as to what happened, as well as the version of the security guard.
It is fair to say that Mr AC had simply left the mother's mobile phone number for any potential patient to ring. The mother was unable to get into the business when she arrived in the morning. There were obviously patients waiting. She could not open the roller door to get into the building as the father had hidden the remote control. She tried to ring the father without receiving a response. Hence, his reference to her calling him that morning but without him giving any of the context.
The father eventually attended and showed them where the roller door remote was. However, the problem was that there were then other doors that needed to be opened as well. The father had the keys to those doors but he didn't bring them. He had left them back in the rental property at Suburb AD. So the mother then had to wait for him to go and get those keys. Then she had difficulty getting access to the safes because they had special electronic codes and one of the codes the father gave was wrong and, indeed, the mother could not access the safes as required.
The father said he did not know the codes to the safes but in the witness box he properly admitted that Mr AC knew the codes and he could have asked Mr AC what the codes were.
In short, the mother was put in a “no win” situation on this particular day and the father was quite happy to watch her suffer as it were: the indignity and difficulty of having to access the property, finding herself locked out and with the father having the only knowledge as to keys out of the two of them.
I think the father's actions in this instance gives a very good picture of the type of Machiavellian behaviour in which he is sometimes capable of engaging.
Having said all these things I do, however, accept that the mother, to some extent, created some of these problems through her communication difficulties with Mr AC in the leadup to this event.
It seems that in 2020 the father, who to be fair was then under some financial pressure and difficulty, had with his partner Ms W moved into his grandmother Ms AE’s home.
I have in subpoenaed records a complaint to Police made by nursing staff who, frankly, seem to have been concerned that the father was engaging in elder abuse of his grandmother. According to the records before me, the complaint was that the father appeared to have taken over her residence, made himself the “next of kin” for his grandmother and there were concerns raised by nurses about his actions towards her. And, in particular:
The attending nurses have found that the victim has now been far more reserved as she was a once active 89 year old now found to be hiding or restricted to her bedroom.
The father has a capacity to be emotionally manipulative in terms of his interaction with the children and to undermine the mother as a parent. The Family Report writer observed that the father struggles to separate the children's needs from his own. As I indicated earlier, she observed that he had very dark triad traits. She said that he was overbearing and did not seem to have the capacity to recognise that his views/drive/enthusiasm eclipse those of his communication partner or how frustrating or invalidating such interactions could be.
The Family Report writer had observed very positive interactions between the father and the children at the report interviews. She had, however, noted that the father was somewhat dominant in his style and could behave somewhat manipulatively. For example, he attended at the interview with a bunch of presents for the children – which she said he could not give them. When the children wanted to see a photograph of his family dog at home, he showed the children a photograph on his phone but then he started showing them photos of other presents. This was not accidental on his part. In my view, it was quite deliberate and quite manipulative.
The Family Report writer noted these things.
By the time of the final hearing, the Family Report writer had had the opportunity to read more of the material including subpoenaed material. At the outset of her evidence, she said that the father had painted himself in a much more favourable light at the interview than what she now believed was in fact the case. She said that, having seen the father's criminal history, she would revise her opinions.
In her Family Report, she had recommended that the father should be spending initially some limited supervised time with the children, graduating up to substantial and significant time in the order of five (5) nights per fortnight and holiday time. However, she had since become aware of matters that were set out in the material which militated against her recommendation.
An example of one such matter is recorded in paragraph 44 of the Family Report. Therein, she had asked the father about the 2016 offences - being the assault occasioning bodily harm and the stalk/intimidate charge (relating to the business patient). The paragraph reads:
44.The father reported he had been working within the area of [health care] for many years which involved daily interaction with patients who were physically and mentally unwell, often aggressive and dysregulated and had had one incident only. He indicated that his patient had attended the [business] with intent to steal from the establishment and had threatened him with a knife and he had defended himself. He said a tribunal later assessed that he went beyond the bounds of self-defence.
This is absolutely not the same event which the Family Report writer was asking him about, namely the 2016 offences. The father has conflated that event with a different event and has told the Family Report writer about an event that, in fact, occurred in 2014 in which he genuinely was the victim rather than being charged.
In my view, the father positively misled the Family Report writer by telling her about a different event entirely. It was not a mistake on his part. He is a highly intelligent man. He chose to tell the report writer about a different event.
To be fair to the father, I do record that he had a number of unpleasant interactions with opioid dependent patients as is clear from the material. On one occasion he was threatened with a knife. He had also been assaulted on at least one occasion. I would record that this event in 2016 was the one and only time that he was violent to a patient. I accept that the father had otherwise behaved entirely appropriately in terms of interactions with patients as best I can tell. But this event in 2016 was a very serious matter.
The Family Report writer also said in terms of risk that she was concerned about the father having misled her about his drug and/or alcohol use. She said that he had painted himself in a more positive light than was in fact the case. It is quite clear from her report that the father had done so. In short, she was concerned that if he would mislead the Court about his cocaine and MDMA use then he would be likely to continue to “mislead everyone”.
The report writer said that the Court had weighed up the benefits of a relationship to the risks posed by the father’s dark side character traits - and she was particularly concerned about the father's potential to “lash out” at someone with the children present. She said the children would be very offended if he did so as they had been raised with very high moral standards.
She was also concerned that the father may “trample” the mother’s and the children’s views. For example, the father wanted X to attend City G Grammar School whereas the child was not happy there. After a dispute broke out between the parents about who would pay the school fees at Grammar, the mother had enrolled X at J School instead.
The family report writer was also concerned that the father may become “offended” by something at a time when he has the children in his care and may then react “offensively” himself. She said that he has a strong personality and if he acted in a violent or aggressive way with the children present that they would be “devastated”. She was worried about possible assaults and other anti-social behaviour the father might engage in. She was worried about him having sworn at Police as set out in the subpoenaed material. She was worried about him potentially being sexually abusive to others and potentially taking advantage of his grandmother.
The report writer was worried about the risk of violent manipulation on the father’s part. She said that the father may have violated three (3) separate boundaries in that respect, namely:
·offending against strangers;
·offending against persons he knows; and
·manipulating witnesses.
These things highlighted his narcissistic / antisocial / Machiavellian traits.
Ultimately however, the family report writer did not consider that a “no time” order was appropriate. She considered that the best option for the children would be supervised time leading to unsupervised time of a limited nature. I emphasise limited nature. She said the father needed “firm boundaries” as he was quite overt in “pushing the limits” and a strong “self-promoter”. In short, she advocated for there to be some time of a limited nature but beginning with supervision. She even queried the possibility of an interim order.
The court is significantly concerned about the risks posed by the father which are in some ways, rather frank and in other ways more insidious. He has shown a capacity to spectacularly self-destruct more than once and I have some concern that unless and until the father seriously commits to addressing all of the issues with his functioning that he is at risk of doing so again.
In my view, the father poses multiple risks to the children across a number of different dimensions.
In terms of s 60CC(3)(a), the children had expressed a desire to see the father as early as the Child Impact Report in December 2021. Both parents had in fact agreed that this was so. To that end, the mother had taken the children to the AH Contact Centre in 2022 to help prepare them for a supervised time arrangement - although in fact this never eventuated.
In the Family Report observations, the children were a little anxious about seeing the father, particularly X. But the mother encouraged them to go and they had what seems to be a very good time with him. According to the Family Report writer, the children were ultimately not so much anxious as curious, although X did apparently whisper to her that: “Dad can sometimes be inappropriate.” In my view, this is probably a most accurate observation from this young girl based on things the father has done and that she has witnessed.
It does however seem to me that the children want to see their father. They want to have the opportunity for a relationship with him.
In terms of s 60CC(3)(b), the children have loving and close relationships with the mother and with her two (2) brothers. One of them is married and has children - who these children see regularly. The children are close to the maternal grandparents. They have various other family and school friends and various special holiday celebrations each year which have become something of a family tradition for them.
The Family Report writer noted loving, positive interactions between the father and the children, although I have noted that he did “push the barrow” somewhat by bringing gifts and showing them photographs that he was not meant to.
Notably, however, the children were in high spirits after they saw their father. The mother also seemed to be somewhat relieved. She had come across as very anxious during her interview and quite unsure about what to do in terms of the children having a relationship with the father.
The Family Report writer observed that the father had spent enough time with the children over the years to have “forged an unforgettable memory of him”.
So, whatever the father did with the children in the time that he spent with them was meaningful to them and, as I indicate, I do not doubt from having seen the father and everything I have read about him that he would be an active and somewhat dynamic parent who could no doubt give the kids quite significant stimulation and entertainment and love.
Turning to s 60CC(3)(c), as a general statement the father only wanted three (3) afternoons per week with the children post-separation. He really was not committed to doing the “hard yards” of parenting consistent with my observations about his personality type.
He was also irregular in terms of dropping the children back home to the mother. Sometimes he came back at times that were not agreed or he blocked the mother's calls. In 2018 he went away to Country T for six (6) weeks with his then-girlfriend. He was away in Country AJ at Christmas 2018 although he would say that he went away because the mother had already gone away.
It seems to me that the father has not sent the children Christmas or Birthday cards but, to be fair to him, he was no doubt concerned about the AVO for at least some of this period.
The other observation I would make about the father is that he has never given up on spending time with the children. He has seen this case right through to a final hearing at which, when the hearing began, orders were being sought that he have no relationship with the children at all. To the father's credit he has never given up on these children in the face of significant stress and challenges.
In terms of s 60CC(3)(ca), the mother applied for administrative assessment of child support in April 2020. Some seven (7) days before the Child Impact Report interviews on 23 November 2021 the mother received an arrears payment of $23,446. I very much doubt that the timing of this payment was “coincidental” and I am strongly inclined to the view that the father made sure he had paid it before the CIR because, as I have said earlier, he is quite a manipulative person.
On 16 March 2022 the father estimated his income as $0 for the purpose of child support assessment. Some four (4) days later the mother received another $5,000 in arrears. The Child Support Agency later assessed the father's income at $183,000 for child support purposes before apparently revising it down to $85,000 in July 2022.
On 19 August 2022, just two (2) business days before the Family Report interviews, the mother again received a significant arrears payment of $15,389. Again, I doubt very much that the timing of this is “coincidental”. The father was making sure she was paid prior to the interviews.
At trial the father had already accrued another $1,000 worth of arrears.
In short, the father will provide financial support for the children but to some extent he will do so on his terms. I also note that the father stopped contributing to the Grammar school fees in 2019/20 for X and that the mother ended up having to pay those. She also paid for Y’s daycare and preschool fees.
I am not sure however that s 60CC(3)(ca) is a particularly big factor in this case.
In terms of section 60CC(3)(d), there will inevitably be a change in circumstances for the children whether I put in place an order for the father to spend “no time” with the children, or if I put in place an order that he spend time with the children as he seeks, or spend time with them as the mother seeks.
If made permanent, the current “no time” arrangement would effectively be “locked in”. There are significant disadvantages to the children in having a no time order. For example, the loss of sense of identity, questioning whether it was their fault that their father did not have a relationship with them, possibly rebelling against the mother or idealising their father and possibly having a range of other psychological or social difficulties. If I make an order for the father to spend time with the children these can be alleviated.
However, there are risks that have to be managed and if the father implodes as it were, or otherwise behaves in a way which contravenes the orders then this will be detrimental to the children.
The mother says that I ought to give the father a chance to prove himself as a father. He asks for the same. I intend to make orders that give the father a chance and it is a question of the Court striking a balance as to what is the safest and most appropriate order to make in that regard. In short, there will be a change in circumstances. I propose to make orders that, in my view, will be in the best interests of the children and will improve their lot in life.
In terms of s 60CC(3)(e), fortunately there are no practical expenses, issues or difficulties that arise. The mother earns a good income as a health care professional working just three (3) days per week and she is willing to share in various supervision and related costs. Although the father is de-registered as a health care professional he has gone on to become the proprietor and manager of a practice and he still earns a good income. Money is not an issue in this case in terms of the orders that the Court makes - which is helpful in this particular circumstance.
In terms of the parents’ attitudes and capacities referred to in s 60CC(3)(f) and s 60CC(3)(i), these two mandatory considerations go hand in hand.
If I start with the mother I accept that she has shown a commitment to the children and she is generally positive about wanting the father to have a relationship with them. It is anxiety and, in my view, genuine concern that has been holding the mother back because she has had a “front seat view” of the father's self-destructive behaviour through many years. I accept the observations of the Family Report writer that, when she asked the mother about what she wanted, the mother became “extremely distressed” about the possibility of the father spending time with the children and that at that stage she could not support time occurring. Notably, however, the report writer said that the mother was not an alienator and, particularly, at paragraph 103 she recorded that the mother encouraged X to go and interact with the father at that observation.
The fact that the mother was distressed and overwhelmed about not wanting to risk the children's emotional and possible physical safety is noted in paragraph 52 of the Family Report and I accept the mother's evidence that at that time she was terrified the father might take the children - as he had threatened to do so before.
The mother is anxious. There is no question about that, but she is able to provide for the children. She is given significant practical and emotional support from her family, particularly the maternal grandparents and, in my view, she is quite a stoic and strong character. Frankly, in some ways she has had to be.
I detected to some extent a degree of resentment on the mother’s part towards the father - in that she said that she felt like the family had been the lowest priority in the father’s life. She’s probably right about that from her perspective but I do not consider that any resentment on her part has affected her evidence or her attitude. It is probably more a melancholy acceptance of the life that she had in this relationship.
The mother has completed the “Parenting After Separation” course and she was willing to demonstrate to the Court a capacity to promote a relationship between the children and the father and to give him a chance.
In terms of the father, he has also undertaken the “Parenting After Separation” course. He has undertaken the “Managing Emotions” course. He has seen a psychiatrist consistently since 2018.
In the witness box he was also sensible enough, and in my view genuine enough, to admit that he had treated the mother appallingly at times. When I say that he “admitted that” in the witness box I should clarify and say that it was his counsel Ms Ticehurst who put to the mother that the father had done so. The mother of course agreed but Ms Ticehurst acts on instructions and, clearly, they were the father's instructions.
The father has some difficulties in terms of managing his own behaviours, as I have already indicated. I am concerned about his attitude as a role model to the children in terms of stability, in terms of his self-destructive behaviours, in terms of his seemingly serial relationships with women which, in turn, do not create a perfect role model for his son or for his daughter. The father has some difficulties. However, I do consider that he has a capacity to manage the children for relatively short periods of time and to have a quality and loving interaction with them during those periods.
During the relationship, his attitude was not always about putting the children first; he did not do so. However, the fact of the matter is that he is now very much committed to spending quality time with the children and he is desperate not to lose them. When asked in the witness box about the possibility of long-term supervision he said: “I would do anything in my human power to see the children but this would be unreasonable. No child wants to be at B Contact Centre but I will 1000 % see the children.” He said he wants to mentor his children. He just wants to have a relationship with them.
As I have noted earlier, the father does struggle to separate his emotional needs from those of the children. Having said that, I am satisfied that he has the capacity to manage relatively short visits and that his attitude has been a positive one in terms of following this case through to a conclusion. Some fathers in his circumstances who are not seeing their children may have “walked away” but he did not.
In terms of s 60CC(3)(j) and s 60CC(3)(k), I have addressed family violence issues already and I do not propose to address those again.
In terms of s 60CC(3)(l), the ICL submitted to me that if I give the father any opportunity to spend time with the children, that is “if he gets the foot in the door, he will force it open”. Mr Mooney strongly advocated that the mother was very anxious about the father spending time. He submitted that her detailed and complex orders, full of restraints and injunctions, do not exactly signify a “vote of confidence” in the father's parenting. Mr Mooney submitted that the father should not be given the opportunity to spend time with the children as any such order “will see us back in Court”.
Mr Mooney submitted that the mother should simply be placed in the position of gatekeeper for the father/child relationship, that she can encourage a relationship when she thinks it is appropriate and safe to do so. He submitted that the emotional and physical abuse risks posed by the father simply could not be made “acceptable”, that the father's violence and manipulation were too significant and he specifically pointed to the NCAT conclusions about the risk of physical violence in paragraph 118 of their judgment to which I have referred earlier. In short, the ICL strongly contended that I should not make any order for time as we will end up back in Court.
Mr Duane for the mother seemed to concede that there was a risk of the matter coming back to Court if I made an order for time, specifically pointing to the father's previous “falls from grace” - but he said that it was a risk the mother was willing to take.
Ms Ticehurst for the father submitted that the father could comply with orders, was willing to agree to injunctions and that the situation would be manageable.
I consider that a “no time” order is the order would clearly be the least likely to lead to the institution of further proceedings. There is, inevitably, a risk of further proceedings if I make any order for time but it is a matter of weighing up that risk against all of the other risks and benefits to which I have referred.
In terms of “any other relevant circumstance” in s 60CC(3)(m), I reiterate that in this case the mother is genuinely anxious about the risks posed by the father. The case is one in which she proposes an order for quite limited time. On her proposal, unsupervised time only graduates to three (3) hours per fortnight and even that is subject to various restraints and other safeguards including hair strand testing, a report being provided from the father’s treating psychiatrist, etc.
In my view, the mother did not come to this Court running a case that, in the event that the Court made an order in the father's favour, her own parenting would be “discernibly impaired” as that term is understood in the authorities. However I nonetheless consider that the mother will genuinely be anxious about orders that I make for the father to spend time with the children and I do not propose to make orders which go beyond what I consider the mother would reasonably be able to cope with. As I have indicated, she has family support. She has a degree of resilience.
The Court is obliged to strike a balance between benefits and risks as it has to do in a great many parenting cases.
WEIGHING UP THE COMPETING PROPOSALS:
The ICL is proposing a “no time” order. The father is proposing that he have some eight (8) months of supervision graduating to unsupervised alternate weekend time from a Friday to a Monday and some other specific orders relating to communication etc. The mother proposes that the father undertake twelve (12) months of supervision and that his time then graduate to three (3) hours each alternate fortnight.
I am not entirely satisfied with any of the proposals that are before the Court. The problem with the order proposed by the ICL is that these children would benefit from a safe interaction with the father - and the mother in this case specifically wants to give him an opportunity to have that interaction with the children so that if it fails it won’t be through want or lack of trying.
It seems incongruous for the Court to consider making a “no time” order where neither parent wants that and where both parents want to try to make something work between the father and the children.
The mother admits there are benefits to time occurring and she wants it to occur provided it is safe. The father's proposal, in my view, jumps ahead too quickly, too far and, in my view, poses unacceptable risk to the children.
I am particularly concerned about the father having overnight time. The father is agreeable to an injunction in relation to drinking alcohol. There is no “magic” in overnight time save that it is the night-time when the father would be most likely to party or drink or otherwise consume drugs. History shows that the father would regularly be away from the home and often at night during the relationship. I also question how the children and the mother would cope in the event that overnight time were to occur. On the one occasion it did, referred to earlier at Easter 2019, the children did not cope.
The father's own proposal greatly exceeds anything he has spent with the children since separation. As I have indicated, he was content to see the children for three (3) afternoons per week - so even his most updated proposal is a significant advance on anything he has ever had to do before. The more time the father spends with the children, the greater risk that he will implode or self-destruct or otherwise do something which undoes all of the good work that might otherwise happen if his time was more limited. I do not want to take that risk either.
But the mother's proposal, to be fair, is so limited in terms of time that I do not think it would be sustainable long-term. If with appropriate safeguards the father is able to spend time with the children in accordance with the mother's proposed regime, I think the children would find that the three (3) hour time limit she proposes would be “stifling” in terms of their relationship. It concerns me that it is a highly artificially limited amount of time.
In this regard, I should also have said, in terms of s 60CC(3)(g), that both of the children had been exposed to significant conflict between the parents in this case, as I have indicated earlier.
X, in particular, has suffered from quite significant anxiety in relation to having witnessed various conflict between the parents as well as having a change of school after she had some difficulties at City G Grammar. I accept the mother’s evidence that X was anxious from 2019 - 2021 including having separation anxiety and a fear of bumping into the father. She was regularly seeing a counsellor up to 2021.
X and Y still both spend time in the mother's bed each night. They still co-sleep with her.
The children are in lots of activities and they have lots of friends and a strong social connection but they are still quite anxious children in terms of what they have witnessed between their parents and, in my view, they do require stability and security in their lives.
Stability and security are the most significant things these children need, together with the opportunity to spend quality time with their father and that brings me back to the “balancing act” to which I have referred.
If I award the father more time with the children, this can be more meaningful for them but it will also greatly increase the risk of him failing in some significant way. Equally, it will also stress the children as well as stressing the mother.
In the end, having weighed up each parties' proposal and doing the best I can to strike a balance that I consider to limit the risks posed by the father's behaviour to the children to being an “acceptable” risk rather than an unacceptable risk I have arrived at various orders which I will now outline.
CONCLUSION & PROPOSED ORDERS:
I will have this document emailed to the parties’ legal representatives shortly so that everyone can have a look at it.
Before I continue, lest it be thought that I have forgotten it, since I omitted to say it earlier, I am aware that the father has turned up “clean” drug tests for his hair strand testing. I am aware that he has turned up clean alcohol CDT tests. I am aware of these things, but nonetheless have considered that there are unacceptable risks by reason of a raft of factors that I have identified earlier.
In conclusion, this is a difficult matter. I have arrived at an order that I consider strikes the appropriate balance between giving the father an opportunity for a relationship with the children - but protecting them from the insidious risks of harm that he poses. To the extent that the orders might be something of a blunt instrument in terms of some of the effects in the event of a failure by the father, that is quite deliberate by me to minimise the risk of coming back to Court and to give the father the maximum incentive to do what he says he can do which is to be the father that he wants to be.
The mother had sought a specific order that, before time transitions to unsupervised, the father must not have denigrated, been critical of or spoken negatively of the mother to the children or in the presence of the children. I do not see how I can make that order because all the mother has to have is X come back and say something that the mother interprets as denigrating and all of a sudden we will have a debate about whether it happened or it did not. I do not think it is fair to anyone so I am not going to include it. There will be, however, an injunction about denigration. And, obviously, the father would be wise to keep all conversations with the children as positive as possible in terms of anything to do with their mother.
I hope for the children's sake that he can do that and that, leaving Court today, the mother can promote the father/children relationship consistent with the orders knowing that I have considered the matter carefully and have struck what I think is the right balance.
And I hope the father can walk out of this Court knowing that although he has been given some criticism today, he deserved it and the better picture for him or the better approach is to “move on” and make the best of his time with the children. I do not want to see the parties back here and I very much doubt it will be a happy outcome for anyone if they are.
I certify that the preceding two hundred and ninety-six (296) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 24 February 2023
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