Moher and Moher
[2009] FMCAfam 67
•2 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOHER & MOHER | [2009] FMCAfam 67 |
| FAMILY LAW – Parenting – father’s mental health – family violence, and protecting children from harm – meaningful relationship – views of the children – willingness and ability of parents to facilitate and encourage ongoing relationships – likely effect of change – capacity to provide the needs of the children – sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MS MOHER |
| Respondent: | MR MOHER |
| File Number: | WOC 1164 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 1 & 2 December 2008 |
| Date of Last Submission: | 2 December 2008 |
| Delivered at: | Wollongong |
| Delivered on: | 2 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Hansons Lawyers |
| Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Mr Berry |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
That the mother is to have sole parental responsibility for the children [X] born in 1996 and [Y] born in 1998 in relation to the care, welfare and development of a long-term nature involving the children to include, but not limited to issues about:
(a)The education of the children – both current and future;
(b)The religious and cultural upbringing of the children;
(c)The health of the children;
(d)Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the other parent.
That the mother is to have sole parental responsibility for making decisions about the children’s day to day care, welfare and development during times the children are living with or spending time with the mother.
That the children live with their mother.
That the children spend time with their father as follows:
(a)For two (2) hours each alternate weekend, the first being at the time and date upon which the Wollongong Contact Service (“WCC”) is first able to facilitate such time.
That for the purposes of giving effect to these orders, the mother and the father complete an application for the WCC within seven (7) days and comply with all induction requirements of the WCC.
That the father communicate with the children as follows:
(a)By email, at any time for which purposes the mother will provide to the father the email addresses of the children and will promptly inform the father of any change to those addresses; and
(b)By telephone, at any time requested by the children for which purpose the father will provide to the mother his telephone number and will promptly inform the mother of any change to that number.
That both parents be restrained from denigrating the other parent in the presence or hearing of the children or in a manner likely to come to the attention of the children.
That both parents use their best endeavours to prevent any other person from denigrating the other parent in the presence or hearing of the children or in a manner likely to come to the attention of the children.
That both parties have liberty to apply in relation to the implementation of these orders.
That the mother is to provide the father with a copy of the children’s half yearly and yearly school reports each year.
That the mother is to keep the father informed as soon as is reasonably practicable of any serious medical illness suffered by the children or any occasion the children are hospitalised.
Subject to Order 13, that the father have such further or different time with the children as may be agreed in writing by the parties although any such agreement is contingent on the father doing the following:
(a)Taking any medication and attending any course recommended by his treating mental health professional including a course on parenting after separation; and
(b)Providing to the mother a report from a treating mental health professional which sets out these matters:
(i)The frequency of his attendances on any doctors or case managers at mental health centres;
(ii)The most recent assessment of his mental health;
(iii)The treatment, if any, of his present mental health status and whether he is compliant with that treatment;
(iv)Any change to his mental health status and the likely effect of those changes on his behaviour; and
(v)Whether there is any aspect of his current presentation which poses a risk to the children or either of them.
That any time for the children with their father or any further application of the father for time with the children be first dependent on the father completing an intake assessment at the WCC and, if successful, at least four occasions of time at the WCC.
IT IS NOTED that publication of this judgment under the pseudonym Moher & Moher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1164 of 2007
| MS MOHER |
Applicant
And
| MR MOHER |
Respondent
REASONS FOR JUDGMENT
Introduction
Counsel for the mother very accurately summarised this case as an extraordinarily sad matter where the mother had lost her husband, the children had lost their father, and the father had lost himself as a result of mental illness which had chosen him. The applicant mother is
39 years old, and the respondent father 41 years old. They married in August 1995 and separated in July 2007 after a marriage of about
12 years duration. During this time, they had two children, [X], who is 12 years old, and [Y], who is 10 years old. This case is about the parenting arrangements that are in the best interests of the children. The complicating factor is whether the father suffers from a mental illness and, if so, to what extent this would influence the parenting orders to be made.
Background
Family life appears from the evidence to have been quite normal until about 2002 when the mother alleges that she noticed a change in the father's attitude and behaviour and, shortly thereafter, family violence was perpetrated by the father. The father has at all times steadfastly denied that there was family violence either commencing from 2002, or indeed at any other time. He agrees that there were arguments which seemed to increase in frequency commencing from either 2002 or 2003. He says that the family started to experience stress as a result of a number of other factors including conflict with neighbours, the father experiencing problems at work including some employment‑related litigation, and the father experiencing stress as a result of these problems, together with his perception that he was being discriminated against because of his racial background. It is clear from the evidence that a number of things were being experienced by this family starting from either 2002 or 2003. Indeed, nothing turns on when, precisely, these events occurred. It is clear from the evidence that the father was admitted to a psychiatric hospital for a period of time in 2004. The mother says that in this period right up until the date of separation there were a number of incidents in which the father became violent towards her and both children. According to the mother, separation was initiated by her as a result of an incident in the home which she alleges took place on 30 July 2007. The mother asserts that the father threatened her while holding an axe. The mother and the children left the home on the next day. The father denies that there was any such incident.
After separation, there were both apprehended violence and parenting proceedings commenced in the Local Court at Wollongong. The parenting proceedings were subsequently transferred to this Court. The Local Court made both interim and final orders in the apprehended violence proceedings, the effect of which were to protect the mother and the children for a period of two years from 14 November 2007. For all practical purposes the father has not spent any time with the children since separation.
The matter first came before me on 11 December 2007. The father was representing himself at that time and, indeed, continued to represent himself right through to the final hearing. The mother was represented by her solicitor, and by counsel at the final hearing. On 11 December 2007, on the oral application of the respondent father, I made parentage testing orders as well as an order for the children to spend time with the father for a period of 2 hours on a day or days around the Christmas‑New Year period in 2007, supervised by a children's contact centre. The father declined to take up the opportunity for supervised time that was offered and he has consistently since then indicated to the Court that he was not prepared to accept an order for contact to occur at a supervised contact centre. The father's objection to contact at a supervised contact centre has been expressed by him clearly, forcibly and consistently from the first time that this matter came before me on 11 December 2007 to the last day of the hearing before me on 2 December 2008.
The father has at all times represented himself. Despite the assertion made by the mother and, indeed, the findings which I make in these reasons for judgment that the father does, in fact, suffer from mental illness, it is important to record my observations of the father as an intelligent, articulate man who, for a self‑represented litigant, was able to present his case clearly and coherently except for the issues of mental illness to which I will shortly refer. The father spoke with a thick accent, and tended to speak quickly, but was otherwise completely understandable from the Court's perspective.
The parentage testing confirmed that the father was the parent to the children. I appointed an Independent Children's Lawyer and then, on 21 May 2008, made an order appointing Dr Brent Waters as a Pt 15 expert. The matter was set down for hearing on 1 December 2008 as a three‑day matter which included property. The property part of the matter did settle and I made consent orders on 2 December 2008.
The mother proposed that she had sole parental responsibility, that the children live with her, and have contact with the father at a supervised contact centre for 2 hours each alternate weekend. She further proposed orders for communication between the children and the father by email and telephone, as well as non‑denigration orders. The orders she proposed expressly contemplated the possibility of the father spending further time with the children conditional upon him obtaining treatment for his mental illness. The mother's proposal was predicated, however, on the father participating and completing the initial assessment for supervised contact, and then actually undertaking four completed sessions of supervised contact at a supervised contact centre.
The father proposed that there be equal shared parental responsibility, that the children live with their mother, and that he have contact with the children each Sunday and on special occasions. In addition he proposed orders for telephone communication.
The Independent Children's Lawyer proposed that the mother have sole parental responsibility, the children live with her, and that there be no time between the father and the children. However, the Independent Children's Lawyer proposed orders that would see the father provided with information relating to the children and that he have leave to apply at some future time for orders in relation to contact and communication if he successfully undertakes treatment.
The evidence in this case consisted of the affidavit and oral evidence of the parents, the report and oral evidence of Dr Waters, and a substantial volume of documentary evidence either produced by the parties or on subpoena, including further medical evidence pertaining to the father.
Issues
Having regard to this introduction and background, and based on the evidence before me, the case raises three broad issues. The first issue relates to the father's mental health and this issue is largely dependant on the medical evidence before the Court. The second issue relates to whether there has been family violence in this family, as alleged by the mother. The third major issue really involves considering all of the primary and additional considerations referred to in s.60CC of the Family Law Act having regard to the findings I make about the father's mental health, and whether there has, in fact, been family violence.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The father's mental health
The medical evidence relating to this issue consisted of reports prepared by Dr Brent Waters, Dr D, Dr B and Dr S.
Dr Waters was the Court‑appointed expert, and his report dated 1 August 2008 was released to the parties on 21 August 2008. His report follows a typical pattern for single expert reports prepared for parenting matters in this Court. In his 18‑page report he sets out the documents that he familiarised himself with in order to prepare for the report, and then sets out his record and observations of the interviews conducted with the mother, the father and both children. It is a comprehensive report. Commencing from page 15 of Dr Waters' report, he sets out his conclusions and recommendations under headings which correspond with the specific questions he was asked in the order appointing him as a Court expert. I will refer to many of these recommendations later in these reasons but for present purposes, he made the following comments in relation to the emotional and behavioural state of the father, commencing at page 16:
h. The emotional/behavioural state of the parents, including their maturity, lifestyle and background.
Although Mr Moher made fairly specific denials in relation to the things that his wife says he has accused her of and other abnormal beliefs and behaviours, I found the denials unconvincing and he was rather evasive about some of them, for instance the allegation of infidelity and that he had required the children to have paternity tests. On the other hand, he clearly outlined quite a complex delusional system arising from a concern that a neighbour was dealing in drugs and that he and his connections were interfering with Mr Moher’s life in a number of ways, both in the immediate neighbourhood and also in various workplaces. Mr Moher appears to see this conspiracy as going higher, possibly involving the local council as well as national and international bodies. He notes with satisfaction that when he approached the United Nations, there was some evidence that steps had been taken which reduced the activity of drug dealers. Without detailing the entirety of this complex web as it was described to me and is set out earlier, I have no doubt that it is both bizarre and false. In addition, it is my view that he probably also holds the views which his wife alleges that he does about her, but that he has sufficient insight to know that he has to conceal them in the context of this assessment. In some ways there is a convergence between his history and that of his wife in that he seems to have certainly been very stressed and unhappy for at least the past six years, and it is likely that this condition developed some time around 2001. There seems to be a very slow progression in his symptoms and he has been able to continue working, although it seems that he has had a number of changes of job which have probably been related to his paranoid thinking. He was also hospitalised in June 2004 but, as he is at the moment, I think he was able to compose himself sufficiently and with the assistance of a small amount of drugs to be discharged after a fairly short period of time.
In my view the most appropriate diagnosis is a Paranoid Psychosis. This is a somewhat more organised psychotic condition than Paranoid Schizophrenia. The fact that he has been able to continue to work and function to some extent in the community indicates that his mental state is not quite so disorganised as one normally sees with Paranoid Schizophrenia.
Unfortunately I do not think that he has any significant insight into the fact that he has a mental illness. He has not taken any medications for nearly three and a half years now and he clearly sees no need to. Unfortunately people with paranoid disorders such as this often do not accept treatment.
His wife’s allegations are characteristic of the type of ways in which paranoid delusions like this can interfere with family life, marital relationships and parenting. It is my view that was
Mr Moher to spend unsupervised time with the children in the absence of appropriate treatment and symptom relief, he would probably interrogate the children about their mother’s activities, try to convince them of some of his delusional concerns, and he may well become irritable and threatening towards them if they did not provide him with satisfactory responses. There is a risk they may become embroiled in inappropriate or dangerous responses to perceived persecution.
It is my firm view that Mr Moher needs psychiatric care. It is quite possible that he might respond very well to quite a low dose of an antipsychotic drug and that he would then be able to spend time with the children under progressively less constrained circumstances, possibly moving from supervision at the contact centre to supervision by some of his family, then to day visits, then perhaps even overnight if his recovery is sufficient.
In short, Dr Waters concluded that the father suffers from paranoid psychosis and is in need of psychiatric care. Dr Waters was of the view that the father did not have any significant insight into the fact that he has a mental illness.
Dr Waters was cross‑examined by counsel for the Independent Children's Lawyer, counsel for the mother, and by the father himself. A number of matters emerged from the cross‑examination. Firstly, the medication that the father was taking for a number of years was clearly an anti‑psychotic drug, and not an antidepressant, as was suggested by the father in his own evidence. Secondly, Dr Waters would not characterise the present case as one where the children would be devastated by the total absence of contact with their father. Indeed, I formed the view that Dr Waters was saying that, in effect, even if these children had no contact with their father pursuant to Court orders, in due course they would seek him out at a time when they were better able to protect themselves from him.
Thirdly, Dr Waters expressly acknowledged that if the father obtained treatment and recovered then a transition to unsupervised contact was quite likely. However, he warned in his evidence that the condition experienced by the father typically did not respond instantly to treatment and, unfortunately, sometimes did not respond to treatment at all. In any event, Dr Waters was of the view that a six‑month transition period was a reasonable proposition, provided the father had successfully obtained treatment. Fourthly, Dr Waters was of the view that there was nothing that the Court could do if the father chose not to take advantage of supervised time with the children, or to obtain treatment for himself. Dr Waters described the father has having "misguided ideas" and who could at times become quite annoyed at people who he believes to be making trouble. He said that the father could at times be irrational.
The father cross‑examined Dr Waters and gave Dr Waters the opportunity to comment on the other evidence ‑ ie, the reports of Dr D, Dr B and Dr S. It is often difficult when a self‑represented litigant seeks to cross‑examine a Court‑appointed expert. That difficulty is exacerbated when the litigant is clearly suffering from a mental illness, as I find to be the case with the father. Nonetheless, the father conducted the cross‑examination quite meticulously. His cross‑examination only served to confirm Dr Waters' view that the father suffered from a paranoid medical condition and that he was not, in effect, thinking normally.
The medical evidence relied on by the father included reports from his treating psychiatrist, Dr D, dated 6 September 2003, 6 October 2007 and 14 November 2008, as well as short reports from Dr B dated
27 September 2007, and Dr S dated 3 October 2007. I will deal with these in reverse order. Dr S, who is a general practitioner, provided a brief report in which he stated that there was no evidence of any aggression or anxiety, delusions or hallucinations. Dr B, in an even shorter report, stated that in his opinion the father was in good health both medically and mentally "to the best of my knowledge". I cannot accept the evidence of either doctor. They are clearly not experts in the field of psychiatry and in any event did not have available to them the extensive volume of material that was available to Dr Waters.
Dr D is, however, a psychiatrist. In his 2003 report he described the father has suffering from an adjustment disorder, which was resolving. His 2007 report states that, in his opinion, the father suffered from no current psychiatric disorder. The latest report, dated 14 November 2008, confirmed that there was no current psychiatric disorder. It is clear from the last report of Dr D that he had available to him the report prepared by Dr Brent Waters. Dr D had seen the father on three occasions between 5 September 2003 and 26 September 2008.
I extract what I consider to be the most relevant portion of Dr D's last report, commencing from page 5:
When I interviewed Mr. Moher in October 2007 he presented in a slightly paranoid manner but there was no evidence of any formal thought disorder or perceptual abnormality. He did not appear grossly depressed or agitated. Mr. Moher also completed the Depression, Anxiety and Stress scale on which he scored in the normal range on all subscales.
Mr. Moher was next seen on the 26th of September 2008 when he told me that he was still engaged in litigation over custody and that he required a further report. Again he said that the key issue for him in the custody proceedings was that his ex-wife wanted to take the children overseas.
Mr. Moher said that he was working casually as a [tradesman] and that for recreation he plays some basketball.
Mr. Moher presented reasonably and without any direct paranoid ideation although he did say that he suspected that his neighbours were dealing drugs as they appeared well off and were not working. There was no evidence of any thought disorder or perceptual abnormality.
DIAGNOSIS
· No current psychiatric disorder
SUMMARY AND OPINION
Mr. Moher is a forty-one year old separated man who presents with a history of several episodes of adjustment disorder. Currently there is no evidence on interview of formal psychiatric disorder although his presentation over the years suggests that he is somewhat insecure and at time [sic] inappropriate and inclined to ascribe blame and meaning to others behaviour which is not warranted and that this has led him into unnecessary confrontation.
With regard to this fitness to have access to his children the matter of most concern in Dr. Waters report is [X]’s comment that he would be afraid that his father might kill him and [Y] to get back a [sic] their mother and that he therefore felt secure at the contact centre. While it is paramount that the boy’s feel secure such a comment raises questions about its origin and whether the idea is derived from comments made by his mother or reflect his own general underlying anxiety.
I would at this stage recommend that access occur only at the contact centre, more because of [X]’s anxiety than the reality of any threat. I would also recommend that [X] have some ongoing contact with a counsellor to further explore the issue.
Dr D was available for cross‑examination by telephone, but neither counsel required him for cross‑examination. This was clearly not because either counsel accepted the evidence of Dr D but rather because the submission would be made that the weight to be afforded to it was much less than that to be attributed to that of Dr Waters. I agree that Dr Ds report deserves far less weight than that of Dr Waters. Dr D did not have available to him the extensive material that was available to Dr Waters. Dr D makes the recommendation for supervised contact at a contact centre, even though he diagnosed no current psychiatric disorder in the father. This was based on the child [X]’s concerns expressed to Dr Waters about the harm that he feared from his father. Clearly, Dr D was sceptical about whether the fear allegedly expressed by [X] was a genuine one, but, nonetheless recommended supervised contact at a contact centre as well as counselling for [X].
My impression of Dr D' report is that it, in effect, presents a minimalist approach to a diagnosis of the father and understates the concerns. For example, Dr D agrees that the father presented in October 2007 in a slightly paranoid manner. Even in September 2008 he made comments to Dr D that would, in the context of this case, raise issues about paranoia or delusional beliefs by the father, for example in relation to neighbours drug dealings. Dr D agrees that, at the very least, the father was insecure, at times inappropriate, and inclined to ascribe blame and meaning to others' behaviour which is not warranted.
Most importantly, I cannot attribute to Dr D the same level of independence that I attribute to Dr Waters as a Court‑appointed single joint expert. Another factor that leads me to conclude that I should give minimal weight to Dr D's report, as compared to that of Dr Waters, is that Dr D did not have the opportunity to closely observe the father in Court over a period of two days, as I did. In particular, he was not able to observe the way in which the father himself gave evidence in cross‑examination as well as the way in which he conducted his cross‑examination – all of which tended to confirm Dr Waters' diagnosis of paranoid psychosis.
For example, the father repeated the view many times in evidence that he had lost his job, his children, and was about to lose his house because he was Croatian. He steadfastly declined to accept that he was acting irrationally in referring his concerns about his neighbours, his employment, the drug dealings, the threats to kill him, etc, to HREOC, ASIO and to the German embassy. He described Dr Waters as being "strange" and having "mannerisms which are very strange". He referred to the Local Court magistrate who made the final AVO orders against him as being corrupt. He referred to Wollongong Local Court as a place that dispenses AVOs “like fruit at a fruit market”. In the context of the wife's assertion that he threatened her with an axe he responded that, in effect, “his weapon was a pen” and that the wife's allegation was "a typical Australian story to put people in Goulburn" jail.
The father referred to Dr Waters, and the mother's solicitors at various different times as trying to “set him up”. He accused Dr Waters of making up the statements attributed to the children in Dr Waters' report. When challenged in cross‑examination about the appropriateness of insisting on parentage testing, his response was to the effect that “everybody in Australia does paternity testing”. The father was clearly suspicious of Dr Waters because, the father alleges, he was offered coffee on arrival at Dr Waters' rooms but was never provided the coffee nor was he offered an apology about this failure.
In short, irrespective of the view of Dr D that the father had no current psychiatric disorder, my own observations of the father over two days were entirely consistent with the behaviour that Dr Waters describes in his report as paranoid psychosis.
I am left in no doubt that the evidence of Dr Waters is to be preferred over the evidence of the other doctors and that the father suffers from a paranoid psychosis. It is interesting that the father was, notwithstanding this diagnosis, able to operate at such a high level in terms of, for example, his advocacy for himself. But this is itself a matter that Dr Waters recognised at page 16 of his report where he draws the distinction between paranoid psychosis and paranoid schizophrenia. With the former, a patient is more able to continue to work and to function to some extent in the community as his mental state is not quite so disorganised as one normally sees with paranoid schizophrenia.
Family violence, and protecting the children from harm
Any findings about family violence are, of course, relevant not just to the primary consideration about protecting children from harm, but also the additional consideration about family violence.
From the mother's perspective she links the family violence which she alleges was perpetrated by the father, to his mental illness so that she says, for example, that the first incidence of violence occurred in 2002 when she says the father became paranoid. The mother says that in 2002 the father struck her, in the presence of the children, whilst he was driving the family car at an excessive speed. In 2005 the mother alleges that the father assaulted her after alleging that she was destroying things in the house. In addition the mother alleges that the father hit the child [Y]. In 2006 the mother alleges that the father punched and hit [Y] as well as assaulted a guest at his nephew's party. In 2007 the mother alleges that the father assaulted her again in the car, in the presence of the children, whilst they were driving to Wombeyan Caves. In June 2007 the mother alleges that the father assaulted her and [X], and then in July 2007 assaulted [X]. The final act of family violence was the one that the mother alleges led to the final separation. On 31 July 2007 the mother alleges that the father threatened the mother with an axe and said that he was going to cut her into pieces.
The father agrees that commencing from 2002 or 2003 arguments between the mother and himself occurred but he strenuously denies that they ever became physical or that there was any family violence perpetrated by him against the mother or the children. In relation to each of the allegations made by the mother, the father presents an alternate version of events.
The first thing to note is that the Local Court has made a final apprehended domestic violence order under Pt 15A of the Crimes Act New South Wales. That is clearly a factual matter that I need to take into account, and give weight to. Other than the application, I have no other evidence about what findings the learned Local Court magistrate made. The application itself, which was tendered in evidence by the father, contains the grounds of the application on which the mother relied. The application contains the mother's version of the incident that allegedly occurred on 30 July 2007, and is a rather chilling account of the father holding a small axe in a menacing manner. As the application indicates, the police accepted that the fears held by the mother were genuine and the only conclusion that this Court is able to come to as a result of the finding made by the Local Court is that the Local Court magistrate hearing the matter must have concluded that whatever the conduct of the father was on that occasion, it sufficiently grounded the order.
From the father's perspective, he tendered the application because in the grounds of application there is a statement to the effect that there were no prior domestics reported to police even though the mother stated that in the last few years the father had been physically and emotionally abusing her. The father relied on this as evidence to show that the prior incidents alleged by the mother did not, in fact, take place and that she had been inconsistent in giving evidence. The mother's explanation was that she had never informed police about these incidents as she wanted to remain in the marriage. The evidence of the wife about the axe incidents is reported fairly consistently to the police, to the Department of Community Services and then to the wife's counsellor and, to that extent, adds to the credibility of her evidence.
I accept that the incident was frightening for the mother, but I also accept her own statement to the police that the father didn't actually threaten her with the axe, nor did he point the axe at her. The threat about "I will cut you into pieces" was in fact made several hours later according to the mother. The police were in fact not notified until the following morning after the mother went to her local doctor and, indeed, it was the doctor who initially notified police.
The evidence before me does not enable me to make a clear finding about what, precisely, happened at this incident. Clearly there was a disagreement between the parents such that a final separation was precipitated. I accept that the mother was clearly put in fear. The fact is that a final order was made in the Local Court. However, on the evidence before me, I am not sure that I could make an independent finding about family violence on this particular occasion.
It is, however, possible to be more definitive about events that occurred on or about 5 June 2004. Documents produced by the Illawarra Area Health Service record the father's admission to [omitted] Hospital on
5 June 2004. The documents produced indicate that the father was referred to the hospital by a general practitioner following reports by the mother of being hit and strangled by the father. The details of the referral refer to an attempt to strangle his wife on 2 June 2004 which was stopped when the children screamed, thus indicating that they were present at the time.
Also, there is reference to a separate assault when the father hit the mother in the face and pulled her hair. It is important to note that the documents themselves record that they were completed at the time of initial presentation and the context of the documents clearly indicate that the information recorded was provided by the father himself. The documents produced record the hospital's concern about the allegations, and the father's state such that they notified the Department of Community Services and the police. There is a note about the concern of high risk of violence to others and the father is described as guarded and suspicious, having poor judgment and insightless.
The notes record the concerns about the high risk of harm to the mother, to guarded expressions of paranoid ideation and requiring psychiatric assessment. Based on the notes it appears the father was admitted on 5 June 2004 and discharged on 10 June. He appears to have been scheduled under the mental health legislation during this period and there are references in the notes to psychosis, psychotic features and paranoia. Importantly, there is also two references to prior psychotic episodes in 2002.
The documents produced by the Illawarra Area Health Service, together with the wife's evidence, leads me to conclude that in June 2004 there was a serious episode or episodes of family violence perpetrated by the father against the mother and that this occurred at least on one occasion in the presence of the children. There is a strong link between the father's mental health at the time, and the incidence of violence.
I accept the mother's allegations of family violence and prefer her evidence over that of the father where it conflicts. I do not accept his evidence that there were only arguments, and no physical violence. I consider it probable that his mental state either at the time of the incidents or later has clouded his perception of those events. Not only is there enough corroborating evidence to support the mother's allegations, but in giving his evidence, the father was often unresponsive and evasive, specifically in the context of being cross‑examined about the allegations of violence.
Moreover, I accept the record by Dr Waters of what both children said to him on the topic of violence. For example, at page 13 [X] expresses "that he had been angry at his father because he kept attacking his mother". Clearly, [X] was fearful about his father, telling Dr Waters at page 13 that he "was very adamant that he did not want to see his father without somebody being there. He said that he might try to kill him and [Y] to get back at their mother." When Dr Waters asked him about the unhappiest time of his life, [X] replied that "it was when his father was hitting him". Similarly, [Y] expressed a concern to Dr Waters at page 14 "that his father might attack him". He went on to tell Dr Waters that "his father used to get angry when he was driving and he would start smacking their mother and driving fast. This used to scare [Y] because he thought there might be an accident."
Despite what the father asserts, I do not accept that Dr Waters "made up" the statements referred to above. They are further corroboration of the finding of family violence that I make in this case.
Meaningful relationship
Whether there is a meaningful relationship between the children and their father is both a primary consideration and an additional consideration. Of course, the boys have not spent much time with their father since separation, but this is partly the father's choice. For the entire period that this case was in my docket, I offered to the father the opportunity for him to see his children at a supervised contact centre. As I have recorded above, he consistently and steadfastly refused to see the children in that context. To that extent, he declined the opportunity to resume, rebuild or consolidate on his relationship with the boys.
In view of the fears that the boys have expressed about being in their father's company alone, I cannot conclude that there is currently a meaningful relationship between the children and the father. However, subject to the matters that are raised elsewhere in this judgment, and in particular to the father receiving the treatment he needs to restore his mental health, I believe that conditions can be put in place for the resumption of a meaningful relationship between the father and the children.
There is no doubt that the children enjoy a meaningful relationship with their mother. Indeed Dr Waters described the relationship with the mother as "a warm, secure and trusting relationship."
Views of the children
Dr Waters reported that:
Both the children expressed some reservations about spending time with their father based on their own experiences but I also formed the view that if provisions were made for supervised contact, they would value the opportunity to spend time with him.
I agree with those observations which are, in my opinion, consistent with the evidence overall. I do not accept the implied contention in the father's case that the mother has poisoned the children's mind about him, or about spending time with him. I think it is more likely the case that the father's mental illness, as well as the family violence related to his mental illness, are probably the main reasons why the children have expressed reservations about spending time with their father on an unsupervised basis.
I believe the children are mature enough to be able to express a view, and for those views to be taken into account in conjunction with other considerations, in determining what is the best order to make in this case.
Willingness and ability of parents to facilitate and encourage ongoing relationships
Implicit in the father's evidence was a concern or view held by him that the mother was somehow responsible for the views that were being expressed by the children about only wanting to spend time with their father under supervision. If that is, in fact, the concern of the father, it is not based on any evidence. In any event, it was not seriously put to the mother, by the father, that she would not facilitate and encourage an ongoing relationship between the children and the father. I also note that Dr Waters formed the view that the mother would be very supportive of any appropriate orders that the Court makes. I agree with Dr Waters' assessment.
The likely effect of changes
The fact is that these children have not spent time with their father for quite some time now. Having regard to the father's mental health there are good reasons why unsupervised contact should not have occurred. As I indicated above, the father's unwillingness to participate in supervised contact is his own decision, disappointing as it must be for the children. This only exacerbates the likely effect of change on these children. On the evidence, in reality there are only two choices available to the Court which might be in the best interests of the children. Those choices are no contact, or contact at a supervised centre, but in each case with the prospect of future variation depending on whether the father obtains treatment and recovers from his illness. Either scenario is unfortunate from the children's perspective but represents a change that is either minimal, or acceptable under the circumstances.
Capacity to provide the needs of the children
There is no evidence which leads me to have any concerns about the mother's capacity to provide for the needs of the children. By contrast, the evidence about the father's mental health is of real concern. Dr Waters formed the view that the father "has the capacity to be a competent parent but at the moment psychotic thinking deflects him from an appropriate focus on their needs and capacity to respond". I think one of the clearest examples of this can be found in the father's views about supervised contact, to which I have referred above.
In cross‑examination the father explained that he did not see the children pursuant to the first order made for supervised contact at Centacare, Wollongong, because it affected his dignity, and he would not be treated like "a dog on a chain." He emphasised that "my dignity is at stake". Later in cross‑examination he again referred to his dignity and said words to the effect that if the Court respects his human rights, it would not order supervised time. He said that he felt that "I am being controlled" with contact at a supervised contact centre.
I think it was quite clear from the orders sought by the Independent Children's Lawyer, and the mother, and the submissions made by each of their counsel, as well as comments that I had made throughout the conduct of this matter before me that time at a supervised contact centre, in conjunction with treatment, might need only to be a short‑term measure for the father. Indeed, Dr Waters confirmed in his evidence that if the treatment proceeded satisfactorily, supervision could be needed for as little as six months. All of that was plainly obvious to the father and yet he steadfastly refused to even contemplate time at a supervised contact centre. For whatever reason, the father is unable to place the needs of his children to have a relationship with him above matters of pride, dignity and whatever other concerns the father might have about supervised contact. He clearly lacks insight and understanding about the needs of his boys and he is clearly unable to prioritise their needs above his own. This is to the great disadvantage of the children.
Equal shared parental responsibility or sole parental responsibility?
The findings that I have made about the father's mental health, and the family violence that preceded the final separation, lead me to conclude that the presumption of equal shared parental responsibility referred to in s.61DA(1) does not apply (s.61DA(2)) and has in any event been rebutted as the father simply lacks the capacity to be able to share in making decisions about parental responsibility (s.61DA(4)). This does not mean that the father is excluded from information about his children, and the fact is that both the mother and the Independent Children's Lawyer ask the Court to make orders to facilitate the flow of information about the children to the father. It does mean, however, that at least until the father obtains treatment and recovers from his mental illness, that the mother should have sole parental responsibility, but I am not prepared to extend that to a change of name for the children.
Time and supervision
For the reasons set out above, and principally because of the father's mental illness, neither equal time nor substantial and significant time is in the best interests of these children. At least for the time being, and until the father satisfactorily obtains treatment for his mental illness, any contact between the children and the father will need to be supervised. A number of challenges arise in this context, however. Firstly, should it be only at a supervised contact centre, or could it be supervised by some other suitable agreed person? The orders proposed by the mother and the Independent Children's Lawyer only propose a supervised contact centre.
Indeed, the idea of another supervisor only arose late in these proceedings and seems to have been raised almost as an afterthought by the father. The history of this matter, and the nature of the mental illness suffered by the father makes it imperative, I believe, that supervision be undertaken in the professional and safe confines of a supervised contact centre where everything the father says and does, and the children's reactions thereto, can be monitored and recorded. The fact is that the father's mental illness is not apparent to all of those people around him. The fact is that he seemed to have functioned quite well in the community and managed to convince at least three doctors that he suffers from no mental illness. It is inconceivable that a lay supervisor, even one agreed to by the mother, could satisfactorily play the role of a supervisor in a context such as this one.
The second issue that arises is the reality of the clear evidence I have from the father that he will not spend time with his children at a supervised contact centre. In the circumstances of this case, the father must be deemed to be aware that if he rejects contact at a supervised centre, the only other option is no contact. To make an order for unsupervised contact is plainly not in the best interests of these children, until the father obtains the treatment he clearly needs. Perhaps it was for this reason that the Independent Children's Lawyer submitted there should be an order for no contact. Even the mother's proposal for supervised contact on an ongoing basis is predicated on the father actually applying to be assessed, and then diligently attending on four occasions. That proposal also recognises the reality of the father's steadfast refusal to participate in supervised contact.
However, the father's refusal, as steadfast as it is, is not a good enough reason for me to make an order for no contact. For the sake of the children the better order is one in terms of that sought by the mother ‑ namely, that, in effect, the father's time be at a supervised contact centre for 2 hours each alternate weekend, with communication by email and telephone provided that the father completes the intake assessment and completes four sessions at the centre. If he fails to do so, which is a decision that he himself has to make, the order stays on foot but subject to the same precondition about completing the assessment and attending four sessions. This gives to the father ample opportunity to seek the treatment he needs to recover and indeed subject to a satisfactory recovery, lead the way to unsupervised and further contact. Under the circumstances, that is the order I intend to make as I regard it to be in the best interests of the children.
I expressly recognise the possibility, therefore, that I could be making an order for supervised contact at a supervised contact centre on an ongoing and indefinite basis. This is certainly not an order that I make lightly, but I am clearly empowered to do so in the special circumstances of this case. I believe that the evidence indicates that the children would cope with this and, indeed, want it to happen.
A sustained period of supervised time means the relationship with the father is preserved, and as time goes by the children will become more able to protect themselves from the adverse consequences of the father’s behaviour. The best thing that can happen, however, is that the father obtains the treatment he so obviously needs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 2 February 2009
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