NACAR & NACAR
[2020] FCCA 103
•22 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NACAR & NACAR | [2020] FCCA 103 |
| Catchwords: FAMILY LAW – Parenting – mother unilaterally relocated – expedited trial – mother’s evidence is that she will return if children are ordered to – father’s mental health – family violence – finely balanced case – due to state of evidence interim orders with respect to the father’s time made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65DAA(1), 65DAA(2), 65DAA(3), 65D |
| Cases cited: Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR NACAR |
| Respondent: | MS NACAR |
| File Number: | MLC 4210 of 2019 |
| Judgment of: | Judge Harland |
| Hearing dates: | 14 and 15 November 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Moloney Maccallum Abdelshahied Lawyers |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ORDERS
FINAL ORDERS
The children [W] born … 2007, [X] born … 2008, [Y] born … 2010 and [Z] born … 2012 (“the children”) live with the mother.
That the mother have sole parental responsibility for the children provided that the mother consult with the father about any proposed decisions with respect to major issues concerning education and health and:
(a)notify the father in writing of any proposed decision;
(b)give the father fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c)take into consideration any views expressed by the father in respect of such proposed decisions; and
(d)inform the father in writing of the decision made.
The children communicate with the Father via Skype on 2 occasions per week as agreed by the parties in writing from time to time and, failing agreement, on Sunday and Wednesday evenings from 6pm until 6:30pm.
Both parties shall ensure that each other is kept informed of the residential address and contact details of each party.
Each is to advise the other party of any medical emergency as soon as practicable.
Each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.
The mother is to authorise the children’s schools and medical treaters to provide the father information with respect to the children and to notify the father that she has done so together with names and contact details of the relevant contacts.
INTERIM ORDERS
The children spend time with the Father every weekend:
(a)from 10:00am to 4:00pm Saturday; and
(b)from 10:00am to 4:00pm Sunday.
For the purpose of the children’s time with the father:
(a)Changeovers shall occur between the Mother and the paternal grandmother, Ms A Nacar, only; and
(b)The paternal grandmother, Ms A Nacar shall be in substantial attendance at all times the children spend time with the father.
Both parties undertake a hair follicle drug test for illicit substances, at their expense, at such approved testing agency as nominated by the Independent Children within the next 7 days, with such test to cover the full length of their hair, and to provide the results of same to the Independent Children’s Lawyer, the other party’s solicitors, and this Court within 48 hours of receipt.
To give effect to order 10 herein, both parties are required to maintain their head hair at the same length as today; neither head hair not body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair.
The proceeding is adjourned to the Duty List on … 2020 at 9:45am.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(B)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(D)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Nacar & Nacar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLC 4210 of 2019
MR NACAR Applicant
And
MS NACAR Respondent
REASONS FOR JUDGMENT
Background
This case is remarkable in regards to the lack of evidence before the court in light of the issues in dispute between the parties. Whilst the case took up comparatively little court time at trial, it has been necessary to carefully study the transcript and the parties’ court documents.
The matter was given an urgent hearing due to the unilateral relocation of the children by the mother in March 2019 from Victoria to Queensland. A private family report was undertaken and provided to the Court in August 2019.
Whilst property orders were also sought by the parties, the financial issues in dispute were not ready to proceed at the hearing on 14 and 15 November 2019.
The parties have four children: [W] aged 12, [X] aged 11, [Y] aged 9 and [Z] aged 7.
The primary issues in dispute are with respect to family violence and the father’s mental health. The mother unilaterally relocated to Queensland with the parties’ four children. Family violence services provided her with practical and financial support to move.
The mother wants to stay in Queensland with the children. She wants the father to have time supervised by his mother. The father seeks for the mother and children to return to Melbourne and to live in an equal shared care arrangement. In the event the court determines that the children should remain in Queensland, he seeks significant school holiday time in Melbourne.
The parties met in 2004 when they were both serving in the military. They initially separated in May 2018 and reconciled in August 2018. They separated on a final basis on 7 February 2019.
The father’s evidence
The father said during cross-examination that “during a domestic” (presumably referring to arguments between the parties) and during the marriage breakdown the family household was not a great environment for the children. He says those things are no longer an issue for him (referring to drug and alcohol use) but could not say whether that was the same for the mother as he has not been in her life since separation.
When asked about what he would say about himself as a parent at those times he was using alcohol and drugs, he initially said that it did not detract from him being a parent. When pressed, he said that it would have an impact in any parent’s life. When examining the transcript of the evidence where the father answered these questions, he avoided responsibility for his actions and choices.
The mother’s case is that she is frightened of the father and that her fear is not solely based on Dr B’s report. Dr B is the father’s treating psychiatrist and his first report refers to the father having suicidal and homicidal thoughts. During cross-examination the father acknowledged that if the mother was frightened of him that would have an impact on the children but said that the issue was whether or not it is valid. The father said he does not think it is. He accepted that any decision around the children has to put their safety first and accepted that the mother’s emotions could have an impact on the children. He accepted that children pick up on when both parents are happy or sad and said that the children’s well-being is what is more important and that is what the parents have to focus on to facilitate what is in their best interests.
The father says that when the parties separated for some months in 2018, the children lived in a week about arrangement between the parents. He says the arrangement worked well and the boys flourished. He very much wants a return to that arrangement. He wants the children to return to the Suburb C area and their previous routines. The father intends to remain in Suburb C. Following several questions under cross examination, his position was that the parties did not have to live in Suburb C provided that the children’s routines were not interrupted.
The father had difficulty identifying positives about the mother in her capacity as a parent and when pressed he said she has been a good parent at times. I accept that his attitude is coloured by the mother’s unilateral removal of the children. That was clear from the tenor of his evidence overall. When the father was cross-examined about the numerous complaints he makes about the mother in his affidavit with respect to alcohol use, drug use and family violence, he sought to distance himself somewhat by saying several times that that has been raised in affidavit.
The father strongly disagreed with the proposition put to him by the mother’s Counsel that for every complaint the wife makes about him he makes one about her. Looking at his affidavit that is exactly how it reads with respect to the alcohol and drug use. For example, he does this at paragraphs 47 and 48 of his affidavit filed 4 November 2019.
The father could not see a disconnect when cross-examined about the fact that he makes complaints about the mother’s alcohol and drug use and family violence towards him, yet says that the best arrangement for the children would be to live in a week about arrangement with both parents.
The father says that his parents have been extremely supportive of both of them and the children have always had a close relationship with them. In contrast he says that the mother’s relationship with her parents and sister are strained and that she would have fallings out with them and not speak to them for months. He says they only visited about five times in the last 10 years. Not having any evidence from any of her family members is a significant gap in the mother’s case.
Family violence
Both parties make allegations of family violence against the other.
Intervention Order
On 15 February 2019 the Court D at Suburb E issued an interim intervention order (“IVO”) against the father based on a police application naming the mother and the four children as affected family members. The father’s oldest daughter [F] aged 16, is also included as an affected family member. He says prior to the IVO he was seeing his oldest daughter regularly but since the mother spoke to [F]’s mother about Dr B’s first report, she had not wanted her to see him.
On 8 February 2019 the mother and the father were home. The children were due to return home shortly. She cannot recall what angered the father outside but he was yelling at her and was very close to her face and then he started throwing glasses on the ground. She said to him that he needed to stop as the children would be home soon. The father left the house. The mother says she called Ms G from Counselling Service H, as they arranged crisis accommodation for her and the children.Counselling Service H.
The mother says she received a call from a police officer on 10 February 2019 telling her that the father had requested a welfare check on the children. The mother said she was scared and confused. She rang the office the next day and told the police officer about the history of family violence and that they were in a safe house. She emailed a copy of Dr B’s report to the police who issued a Family Violence Safety Notice that day.
The father attended the Court D at Suburb E on 15 February 2019 for the hearing of the police application for an IVO. The father breached the safety notice by copying the mother into two emails and also by sitting in a chair at the entrance of the safe room at Court, which made her feel scared and intimidated. After speaking to one of the staff members they made him move. The interim IVO excluded the father from the home so she and the children returned to stay at the home for about two weeks. The mother was scared that the father would attend the home and threaten her and the children or physically harm them. She was also concerned that he may still have cameras in the house and be watching her.
The father complains that the mother accessed Dr B’s first report without his knowledge by using his work email. He says she used this and particularly the reference to the father having homicidal and suicidal thoughts to obtain the IVO. I do not accept the implied criticism that the mother did this cynically.
The mother denies obtaining the report improperly and says the father gave her a copy. The mother says the father emailed her a copy of Dr B’s report after she asked how his first session went. Given the mother’s involvement in seeking medical help for the father and the fact that the parties had not yet separated, it is reasonable for the father to have given the mother a copy or at least have shown it to her.
On 16 February 2019 [W] mentioned that evening that he and [X] were at the local shop and saw the father. The shop is about a hundred metres away from the home. They saw the father and grandfather and waved to the father. The mother says she was worried about what the father might do as it was so close to the family home and says that she remained in contact with EDVOS, a family violence service that Counselling Service H referred her to. She said she was referred to SafeSteps to arrange further crisis accommodation until funding was approved for them to relocate to the Gold Coast. She says on or about March 2019 she received approval for funding which included fuel for the drive, two nights’ accommodation on the way and a week’s accommodation in a safe house in Queensland.
In his affidavit the father gives inadmissible evidence about what he alleges the police told him when serving him with the Family Violence Safety Notice and when they attended the home in September 2018.
When cross-examined about this the mother did not accept that the subpoenaed police records indicate that she was the one being violent and says they reflect that she was protecting herself.
The father described his relationship with the mother as not being healthy or positive. He describes the mother as often being verbally abusive towards him, making derogatory comments about his mental health and also being physically abusive. He said this occurred on numerous occasions and one time in front of the children and [F]. He told the family report writer that he declined to press charges. He also told the report writer that the mother’s conduct caused him to lose his self-esteem, happiness and confidence.
The father denies ever committing family violence and says the mother subjected him to family violence. In his affidavit he says the children may have been exposed to verbal arguments and then refers to [W]’s comment to Dr I of seeing the mother kick him. This is a selective rewording of what [W] said. This strikes me as the father minimising his role in problems and emphasising the mother’s.
When cross-examined the mother denied ever being violent towards the father and when cross-examined about the police record referring to the father having several scratch marks she said that was when she was trying to get him off her when he was holding her down. She denied hitting him and said she was protecting herself. I am unable to determine what the police record says as it was not tendered despite the mother not making a concession during cross-examination.
The mother denied that she made allegations of family violence and applied to the police for an IVO in order to exclude the father from the children’s lives. She denied obtaining Dr B’s report inappropriately and says the father gave it to her. The mother said she left for the safety of her children and conceded that she did not tell the father and the children’s schools. The mother said the children were happy to go as they were scared too. She agreed that she had not called the police previously and says this is because she was scared to.
2018 incidents
The parties give very different versions of an event which occurred in 2018. The mother says one night she and the father came home from the pub and the father became angry at something he perceived she had said or done. She says she cannot remember what it was that he started yelling at her for and he was pointing his finger in her face. She said she ran out the front door and down the street screaming for help. She says the father chased her, caught up with her, grabbed her from behind with both arms, tackled her to the footpath and held her down for about a minute before they calmed down and they went back into the house. The mother said she was trembling and crying.
The father’s version of events is that there was an incident where they returned home from the pub and had a disagreement. He says that the mother accused him of speaking to a woman and took off after an argument. He said he responded to her accusations and they argued. He said he put his hands up to stop her from physically putting her hands on him. He denied tackling her outside. He says the mother was crying and that she had been physically aggressive towards him. He does not explain what he means by that conclusion. He further says that when the mother returned, his parents spoke to her about it and she admitted to them that she had been the perpetrator of violence. His parents do not refer to this in their affidavits. The father does not provide any further examples in his affidavit of the mother being violent towards him, despite giving the impression that it was a regular occurrence.
The father says he and the mother did have heated arguments. He refers to his affidavit where he annexes text messages where he says to the mother that he does not understand why she keeps yelling at him. The father said he does not recall accusing the mother of being unfaithful with her male friends. He also denies being controlling, telling her what to wear when they went out and becoming angry if he thought someone expressed interest in her when they were out. The father says these are fabrications in the mother’s affidavit, as he does not have any animosity towards her and wants to communicate and co-parent in the best interests of the children.
The mother’s Counsel asked the father about the family report and in particular the reference at paragraph 116 where Dr I says that the mother presented as genuinely frightened of the father. He was also taken to Dr I’s interpretation of his test results where she assessed that his propensity for engaging in further physical violence is at least moderate, with the highest risk being control and domination of the mother through manipulation of the children. He says he remembers reading that and also the test results that Dr I was referring to and that she needed to clarify with Dr B about his mental health and whether there is any risk.
The father was then asked about the comments by Dr I in the family report where she says that the children’s reports contained common themes about the father’s escalating irritability and anger, being less and less available to them in the lead up to the final separation and being exposed to a high level of verbal violence by him against the mother. He agreed that he was concerned when he read that and it was concerning that Dr I said that, even though she felt there had been coercion of the children. The father referred to coercion a couple of times and what I interpreted that to mean was the mother coaching the children. He accepts that it would be very concerning if the children see him as irritable, angry and not available to them but does not accept that that was the case. He says that Dr I has not been able to get a true reading of what the children are actually feeling because they have been isolated and coerced by the mother. The father says the children have not been feeling that way when they have spent time together and communicated in recent months, and says those communications have been positive and valuable to them. Of course most of that communication was via Skype, a few visits with his mother supervising, and with not all of the children being involved. He says when the children are not influenced, they enjoy spending time with him.
In reference to the boys’ comments to the report writer about the father prior to separation just sitting around on the couch watching cricket, the father says the cricket was not on as it was winter and that the children all saying the same thing to the report writer does not sound right to him. He said he would be hurt if that was how the children genuinely felt.
When asked further about [X]’s refusal to spend time with him, the father says that [X] is particularly angry. He says that the mother showed [X] a text message sent from the father that [X] has been told that he is the father’s least favourite child and that the father did not love him. [X] told Dr I that the mother showed him a text where the father said he got along best with [W] and [Y]. The mother’s actions in this regard are very concerning. The father says that if his parents had said that to him he would be very upset with his parents. It is concerning that [X]’s relationship with his father has completely broken down.
In answer to [Z]’s comments to the family report writer about the father being mean to the mother, the father says that when he first saw [Z] in Queensland he said to him that he was not angry at all, that he was happy and that he did not know why he had been told his father was angry. The father says what the children have been told has clouded their judgment and what they are feeling is completely different to the reality.
When asked about [Y]’s comments at paragraph 88 of the family report, the father said on the surface it is upsetting and he does not want any of his children to be affected. He queried how a child of that age would know what anxiety is, and says that with respect to his symptoms of having a sore tummy, that he was in the process of being tested for food allergies. This was not put to the mother nor Dr I in cross-examination.
He said that he finally had a chance to spend time with [Y] and it was brilliant and of all the children [Y] is the most connected to him. The mother agreed that the children have enjoyed their visits with their father. This does not mean that the children’s descriptions of their experiences of their father are not genuine. The report writer noted that “the three older boys all appear profoundly affected by their alleged experiences of family violence”.
With respect to the children’s views expressed in the family report, the father says that he is not trying to “fob this off” and it is upsetting that the children are upset and isolated in another state and that the report writer clearly stated there has been coercion and it is not just him saying that.
When asked what responsibility the father took for the children having such views, he says that he has owned his part in heated arguments but says that all the violence came from the mother. He says that [W] has witnessed the mother assaulting him. He also says that his parents would be able to give evidence to clarify where he read in the family report [W] saying that the paternal grandmother would come and get them during these times.
[W] recalls a traumatic incident when the mother was driving off and the father would not let her go. He said to the report writer that the father was saying horrible things such as that mum would kill herself. He said he started crying. He said during an argument he heard his mother say to the father that she was not the one who has said she wanted to hang herself at Christmas, so he knew that his father had wanted to kill himself. This would have been very distressing for him.
The mother told Dr I she tried to leave the home to prevent the children witnessing any denigration by the father and says on one occasion the father stopped her from driving away and [W] intervened and told the father to let her go. The mother says she returned home and saw a text that [W] had sent which asked her not to kill herself as the father had told him that that was what she was going to do. The mother told the report writer that she would “never forget” seeing the children anxiously waiting for her return and the father not being around to comfort them.
[W] said the fights were usually because of the father’s anger. The father would get angry at the mother for not doing things. He gave an example of the father getting really angry at her when she forgot to “pay the thing for the road.” The father’s anger was not directed at the children but at the mother. He also recalled the father getting bad road rage and on one occasion trying to start a fight at his sports final after [W] had gotten into a fight with another child. There was another time when the father hit a team member who had been teasing and goading [W]. [W] believed that the child’s parents threatened him and there was a big argument. Soon afterwards he stopped playing for that club.
The father said that with respect to [W]’s comments to the report writer about the father getting into a fight with another child, the father said [W] was being bullied. [W] retaliated when the child struck him and the child came over to continue the fight with [W]. He says he told [W] that he had to stand up for himself. The father says in retrospect that was the wrong thing.
[W]’s comments to the report writer are inconsistent with the proposition by the father that the mother was the sole perpetrator of the violence.
The father says that during the limited times he has the children they have been brilliant and thrived from having him there. But he says that this highlights to him that the children have been exposed to things they should not have been and that the report writer has clarified that there has been coercion with respect to the children. The father made reference to this several times during the course of his cross-examination. This is not what Dr I says. The father’s evidence with respect to Dr I’s report and the children’s views shows a lack of insight and tendency to focus on specific parts of the report which he takes out of context in the belief that it supports his position.
The mother details another incident in her affidavit that occurred in June 2018 during the period the parties were separated. She took the children to the family home to see the father, as she believes it was around the time of [Z]’s birthday. [F] was also there. The mother says the father reacted angrily at something she said but she cannot remember what that was. She says she was scared and ran upstairs to [W]’s bedroom. [W] was sitting on his bed. The father followed her into [W]’s room still yelling at her. She says the father closed the door then grabbed her by her neck with one hand and pushed her up against the back of the door yelling with his face red and a clenched fist. She was afraid that he was going to hit her. She says she cannot recall how long he held her like that and cannot recall him letting her go. She says she recalls running out of the house to the house next door. She told the father’s parents what happened and they went to speak to him. The father says the mother’s version of events is a complete fabrication and that [W] told the family report writer about the incident where he says he saw the mother hit the father and his father pushed her off him. Dr I said in her report that:
When asked if his parents ever got into a physical fight, [W] recalled his mother kicking his father in response to something nasty he'd said and another time when Mr Nacar had been holding [W] down and Ms Nacar hit Mr Nacar in the face to get him off [W]. [W] said Mr Nacar then “threw her on the bed really hard.”
[W] refers to witnessing both parents being physically violent, not just the mother being violent towards the father.
In her affidavit the mother says it was common for the father to get angry at her very quickly. She says she did not understand the cause of his anger as it was unpredictable, although usually he was responding to something she or the children said or did. The mother says that often when he would yell at her he would come up close to her face and would point his finger in her face. He also grabbed her by her forearms so that she could not move away from him. She says if the children were in the room she would tell them to go to their rooms. In more recent times, [W] was more assertive and would yell back at his father.
The mother says when the father would yell at her she tried to leave to de-escalate the situation. Sometimes the children left with her and sometimes she left on her own. On one occasion in January 2019 everyone was at home. She cannot remember what the father was yelling at her about but she was crying and got in the car. The father followed her outside got in the passenger seat and leaned over her and the driver’s seat holding her arms to the sides and saying “I’m not going to let you go”. She was screaming for help and kicking him with her legs so that he loosened his grip. [W] came outside and started yelling at the father to leave the mother alone. The father was swearing at her as she drove away. When she went home sometime later she checked her text messages and saw a message from [W] saying “please don’t kill yourself”. When she went home she saw the children sitting on the couch looking anxious while the boys said “dad is putting up more cameras mum. He told us that you were going to kill yourself”. She comforted the boys. The mother felt trapped and helpless.
Father’s mental health
The father says he did not suffer from mental illness before joining the military. The father experienced workplace bullying and suffered from major depression. He first sought help in 2009 when he was experiencing workplace bullying.
In his affidavit the father refers to various medications he has been prescribed in the past and his current prescriptions. He says he is compliant with his medication regime and in addition to the medication Dr B prescribes for him, he undergoes talk therapy with him, has reduced his alcohol intake and undertakes intense regular exercise. He says that his mental health does not impact on his capacity to “relate to the children and make them feel safe”.
The mother contacted the Department of Veteran Affairs (“DVA”) to receive assistance in getting the father treatments for his mental health and they engaged with Counselling Service H. Their records were subpoenaed. The father says the mother tried to get him admitted to Rehabilitation Centre J, which is a private inpatient clinic, for admission to the six-week inpatient program. In order to assess his suitability he was referred to Dr B. His application was refused and the mother tried to have him admitted to a shorter inpatient program. Dr B was of the opinion that the father did not need inpatient treatment and could attend a day program.
The father told Dr I that the mother tried to get him admitted to a psychiatric hospital and exaggerated his mental health in the lead up to separation. This allegation was not put to the mother. He acknowledged that his mental health deteriorated and that in early 2019 he was doing the bare minimum daily tasks.
The mother says the father was diagnosed with depressive and anxious disorders whilst he was in the military and often displayed symptoms including low mood, fatigue, suicidal thoughts and isolating himself from family and friends. She says at times she was scared for his safety and at those times he would say things like “I don’t see any point”, “I don’t want to keep feeling like this”, “I may as well kill myself”. During these times he isolated himself in the bedroom and remained there for hours or sometimes all day. The father was diagnosed with bipolar about three years ago and was prescribed Zoloft and Seroquel. The mother says that during the relationship the father was not always compliant with his medication. The father would have periods of extremely low mood then periods of agitation and aggression towards her and the children. When he stopped taking his medication he increased his use of illicit drugs and the cycle of low mood and aggression towards her and the children would increase. She said this worsened over time and it was particularly bad from November 2018 to January 2019. To her observation when he was compliant with his medication regime his moods and behaviour improved. He would be calmer and less aggressive.
The mother says the father saw a counsellor at Counselling Service H in about March 2017 and saw a psychiatrist for a few occasions in early 2018.
The mother says she did not know what his mental health was like during the five months in mid-2018 as they were separated.
In November 2018 the father became depressed and withdrew from the family, did not engage with the children and stopped going to work. He stayed in bed all day and would not talk to anyone including his parents. In January 2019 the mother contacted the head of Counselling Service H, as she was worried that the father might harm himself and to also find supports for him.
The mother said in January 2019, during the last session with the marriage counsellor, she was generally concerned about the father’s mental health and was making inquiries of what to do. The father was referred by his general practitioner (“GP”) to Dr B who recommended that the father be admitted to Rehabilitation Centre J. The father installed cameras in the house and he needed to see what was going on when he was gone to protect the mother and the children. The mother says she discussed the cameras with the father’s parents as she was afraid of the father’s behaviour. The cameras had microphones and the mother was concerned about him watching and listening.
The father said during cross-examination that he was diagnosed with post-traumatic stress disorder (“PTSD”) in February 2019 which was somewhat surprising. The father said he had been diagnosed with depression and anxiety previously, but that now the anxiety is part of the PTSD diagnosis. At paragraph 113 of the family report Dr I says it is unclear how the father would have ever received a diagnosis for PTSD as “PTSD requires exposure to actual or threatened death, serious injury or sexual violence, none of which apply to Mr Nacar’s description of the alleged cause of his symptoms”. Dr I also states that the subpoenaed files from Counselling Service H do not support a diagnosis of PTSD.
The father told Dr I that he first experienced mental health issues after he was medically discharged from the military. He saw various doctors arranged through the DVA and was diagnosed with PTSD. He told the report writer that he saw about four different psychiatrists and three different psychologists. He also told her that at one point he was diagnosed with bipolar affective disorder based on information the mother provided but that he did not accept that diagnosis. He was prescribed various mood stabilisers and antidepressants but did not spend any time in hospital as an inpatient.
The mother’s Counsel asked the father how many psychiatrists he had seen in the past four years. The father said “to the best of my knowledge, maybe three”. When asked who they were he said he did not know. He does not make any reference to this in his affidavit and although he was pressed in cross examination he was incredibly vague and could not say when he had seen the psychiatrists, he could not remember their names, and he was vague about where he saw them. The father said he did not want to lie and is trying to be honest, however this kind of information is important and highly relevant to the issue of risk. The fact that he was unable to provide what is very basic information from a recent period is at best suggestive of the father not getting consistent medical treatment. He referred to seeing psychiatrists for reviews of medication. Seeing three psychiatrists in the past four years is suggestive of the father not engaging with one psychiatrist consistently for a period of time, as seeing different psychiatrists is essentially starting again with respect to one’s medical history. It is not the same as seeing different GPs in a medical practice where they all have access to the same medical records. The father was either not being frank about his mental health or was too unwell to have a good memory of it during that period. It could be a combination of both but I reject the submission made by his Counsel in closing submissions that the father was open and honest about his mental health history.
The father was very vague about why he was first referred to a psychiatrist and simply said “it would have been for ongoing treatment of mental health”. When pressed for more detail and asked what was going on for him at the time he was referred, he could not recall and said that the only thing he could surmise was that it was for medication. When pressed he said he had seen a male psychiatrist at Hospital K two or three times and a male psychiatrist in the Melbourne Central Business District (“CBD”) two or three times. He could not say which part of the CBD the doctor was based in.
He said he was first put on medication in 2010 when he was still in the military, but could not provide any details and said that he dealt with his health through the military. He said he has not seen as many as six different psychiatrists in the past seven years. He said it would be less.
He said that he had seen a counsellor who referred him to a psychiatrist in Melbourne a few years ago. He could not remember any details of the counsellor and could not say how long he saw him for. When asked why he was seeing a counsellor he said “because anyone – as ongoing health treatment, you would expect to see a counsellor and a psychiatrist to review”. Again, when pressed about why he was seeing a counsellor he said “because that’s just part of the ongoing treatment plan”. He also could not remember how many counsellors he has seen in the past few years. When pressed he said that maybe it was three although one was for marriage counselling with the mother which of course is entirely separate to his mental health treatments.
The father’s Counsel objected to certain questions on the basis that the mother’s Counsel’s questioning was argumentative and irrelevant and said it is all very different now referring to his current mental health. Counsel argued that the father’s mental health is only relevant in so far as it affects his parenting capacity. I accept that this is so. Many parents, many adults in various professions have mental health issues which are well managed and do not impact on their functioning.
The difficulty in the father’s case is that a major part of the mother’s case is that the father’s mental health compromises his parenting capacity and places the children at risk. Given this, the father’s lack of evidence about this in his trial affidavit is significant. It is very troubling that the father has not given a clear picture of his mental health treatments knowing that it is one of the central issues in this case. The father’s inability to provide these details with respect to treatment he has received may be indicative of how unwell he was. When cross-examined about this, the father’s evidence was incredibly vague about his previous treatments and his previous doctors. He could not remember the names of psychiatrists he had to see and details of where he saw them. This is combined with the lack of any detail in his affidavit. This means that there is a paucity of evidence before the Court about his mental health and any risks associated with it. It is not enough to simply focus on the treatment he has received from Dr B which has only been since January 2019 during the final breakdown of their marriage and post separation. This was also made clear from the cross examination of Dr B that he does not have access to any of the father’s previous medical records from any of his previous mental health treaters.
The father said he does not see his mental health as a big issue currently. The father then said that previously he had been misdiagnosed and placed on the wrong medication. He says Dr B is the only one who has been able to provide treatment and ongoing support which has been the most successful. The father does not expand on either of these statements. The difficulty with that position is the complete lack of information about the previous treatments and diagnoses apart from all the statements of having been diagnosed with anxiety and depression and bipolar, and his reference in his affidavit to the names of previous medications he had taken but without any context.
The father’s Counsel in the course of arguments about objection to questioning said that the father does make disclosures about his mental health. Given the importance of this issue I will set out paragraphs 40 to 45 of the father’s affidavit in full.
40. Dr B's report dated 2 July 2019 indicates that his formal psychiatric diagnoses of me include:
a. Bipolar Affective Disorder Type II;
b. Post-traumatic stress Disorder; and
c. Substance Use Disorder (related to alcohol use).
41. No medical evidence ever suggested I was a risk to the children and no current medical evidence suggests that I am a risk to myself or the children.
42. My past medications include sertraline, quetiapine and escitalopram. Following my attendance upon Dr B this year, I was prescribed lamotrigine and quetiapine. I am now only prescribed one (1) tablet per day, namely a minimal dose of lamotrigine, a non-sedating mood stabilizer. I am medication compliant.
43. I have ongoing consultations with Dr B every two (2) to four (4) weeks. My last consultation with Dr B was Saturday, 2 November 2019, via Skype as Dr B is now based in Town L. When I am prescribed any medication, Dr B fills out a prescription and faxes it to my local chemist.
44. In Dr B’s report dated 2 July 2019, he states that my mental health has been stable for five (5) months through a treatment regime that included ‘talking’ therapy, moderation of alcohol, intense regular exercise and a medication regime.
45. My mental health does not impact upon my capacity to relate with the children and make them feel safe.
The father said that currently the treatment he is receiving for his PTSD does not have a major impact on his day-to-day life. He says he does have some anxieties. Of course I accept that some of that relates to being separated from his children. The father says that his mental health has been a lot more manageable and does not have a controlling effect on him as he is now receiving the right medication and the right treatment. When asked how it affected him prior to January 2019 he referred to everything being heightened during the marriage breakdown which was a traumatic time, but again he could not answer with any specificity how he thought it impacted on him. The answer to this could be because he lacks the insight into this due to being very unwell at the time.
The descriptions that the mother and children provide of the father are of someone who was disengaged from the family, spent a lot of time in bed and was often irritable and angry. This is consistent with there being a deterioration in the father’s mental health. The father did say he lost interest in his work and was not getting the enjoyment that he used to get from his work, but feels that that was a major part of going through the marriage breakup which dragged out over a long period of time. When pressed about how his anger manifested the father conceded that anger was one of the issues people go through during marriage breakdown and accepted Dr B saying that he experienced “distressing anxiety, depression, anger, insomnia”. When pressed about how he thought it impacted on the mother he said he thought they were all impacted and again referred to the marriage breakdown. He said the children would have been impacted in some way as well and said that they would not have been in a happy environment with the mother and himself.
The father said that the marriage breakdown was the major catalyst for the deterioration of his mental health. When it was put to him that the difficulty with this is that he had mental health issues for some years, the father referred to there being varying levels of mental health and how it impacts at different times. I accept that as a reasonable proposition. The difficulty is that the father then said that this question would have to be referred to Dr B. However, as I have noted previously, Dr B does not have any of the father’s previous medical files and therefore is relying solely on the father’s recounting of his mental health history. I think the father has downplayed the negative impact of his deteriorating mental health on the mother and children. I do not think this is deliberate.
The father accepts that the reference by Dr B in his first report to “of great concern, Mr Nacar has pervasive, powerful, suicidal and, at times, homicidal thoughts” was the catalyst for many of the issues before the Court now. He said the comment came from answers to questions he gave in the initial consultation. He said the reference to homicidal thoughts was with respect to the superior officer who had ruined his military career. He told Dr B that he had 10 years of mental health issues because of him and said he told Dr B that he wished when he came to his house to threaten him that he had just punched him or killed him. He said the homicidal thoughts were only with respect to that one person. The father said he did have suicidal thoughts particularly as the marriage was breaking down in late 2018 as he thought his mental health problems were never going to go away. He said they were momentary thoughts and he never had a plan.
The father complains about how the mother obtained Dr B’s report. I have referred to this previously. Of more importance is the impact of reading that report on the mother. If the mother discovered the report and the father did not provide it to her that would have further heightened her concerns. It is not surprising that the mother would be keen to read the report given her involvement in seeking supports for the father including inpatient treatment. When the mother’s Counsel suggested to the father that it would have been alarming for the mother to read that, he said that if she had sought any clarification from Dr B she would have been told that no one was in any danger or at risk and it would not have been used as a catalyst to unilaterally remove his children. It is unfair to suggest, as the father does, that the mother has used this as a cynical opportunity to move to Queensland. Anyone would find such statements alarming and the evidence from Dr B seeking to clarify and downplay that sentence is not entirely convincing. Either Dr B had sufficient concerns to make that statement or it was exaggerated in order to gain funded treatments from the military. Dr I expressed concerns about his statement and certainly disagreed with Dr B’s justification about the suicidal and homicidal thoughts. I share Dr I’s concerns.
The father said he did not seek to clarify that comment about suicidal and homicidal thoughts when he first read Dr B’s report as he knew what context it was made in.
It was evident from the cross examination of Dr B that he did not have access to any of the father’s previous medical records, only having the letter of referral from the father’s GP. Dr I opined in her family report that a psychiatric assessment was unlikely to be of further assistance as it relies on information provided by the individual. In the absence of the father’s medical history and records, I agree.
The father annexes an email exchange he had with Dr B in February 2019 where he thinks his previous medical treaters did not treat him properly which he believes is the biggest contributor to his current circumstances.
In his first report dated 29 January 2019 Dr B says the father has been diagnosed with and treated for major depressive disorder, bipolar affective disorder and PTSD. Currently he is experiencing “distressing anxiety, depression, anger and insomnia.”
The last four paragraphs of his first report reads as follows:
Following his medical discharge Mr Nacar has worked hard to build up his business. He sought relief in alcohol from the depression, anger and grief. Mr Nacar has now been essentially abstinent from alcohol for five months. He has been assessed and treated by both military and private psychiatrists and prescribed various medications including sertraline, quetiapine and escitalopram.
While Mr Nacar has made a wise decision in curtailing his use of alcohol; his psychological distress has become even more acute. His marriage is in grave danger if he does not receive treatment urgently. Of great concern, Mr Nacar has pervasive, powerful suicidal and at times homicidal thoughts.
Mr Nacar has another Telehealth Consultation booked for Wednesday 6 February 2019 during which I will further make further assessment and have the opportunity to obtain collateral history from Mr Nacar’s wife Ms Nacar who has become quite desperate that Mr Nacar receive appropriate treatment.
In my opinion Mr Nacar would benefit from an admission to Rehabilitation Centre J at Town M where he will be able to access intense multi-modal multidisciplinary treatment for his disabling and intense symptoms. I strongly advocate for a six-week inpatient treatment. I am available to elaborate and clarify as required.
Dr B clarifies his statement in his second report dated 4 April 2019 as follows:
After our initial consult Mr Nacar explored a range of inpatient treatment options. None of these were immediately available. Throughout these negotiations and inquiries, he remained in regular contact with me and was and remains actively engaged in his treatment. He has not refused any psychiatric care but rather made an informed decision to continue with outpatient rather than inpatient treatment.
He refers to the father’s history suggesting “a range of diagnostic possibilities” including, major depressive disorder, bipolar II disorder and PTSD which will become “clear in time”. He says the father is managing very well and is being treated by a clinical psychologist for PTSD as well as having regular consultations with him. The father does not make any reference to being treated by a psychologist in addition to his appointments with Dr B.
In his third report dated 2 July 2019 he again seeks to explain his initial comments and says in italics:
It is important to note that while Mr Nacar experienced thoughts of suicide and homicidal fantasies about those who had ill-treated him during military service, he had no plans to act on thoughts to harm himself or others. I would have organised an involuntary admission under the Mental Health Act. I was completely satisfied that Mr Nacar was seeking help, acknowledging his distress, and confident that he was not at risk to himself or anyone else.
Dr B’s third report advocates even more strongly for the father which undermines his objectivity. I have concerns about what information he has had access to and the lack of disclosure about the father’s medical history.
I certainly accept that currently the father is engaged in his mental health treatment and is motivated to maintain improvements made in his mental health. What remains unanswered and uncertain is how motivated the father will be when the proceedings have ended and how he will deal with the stressors of having four boys in his care on a week about basis if he is successful in his application. The father has had the opportunity to focus on his mental health without the stressors of work and without the pressures of living in the home with the mother and children. Of course he has had a real stressor of a different type which is the separation from his children, very limited interactions with them and a genuine fear that he will be prevented from having a meaningful relationship with the children in the future.
Dr B’s oral evidence
Dr B was cross-examined. He says that the father was initially referred to him by his GP when he was considering inpatient treatment for PTSD and his GP was interested in looking at the option of him receiving residential treatment at retreats at a private clinic in rural Victoria. That clinic does not have any psychiatrists on site and Dr B provides tele-help services to them.
Dr B said that his information came from the father, one conversation he had with the mother and the referral letter from the GP. He does not have any records of any consultations the father had with previous psychiatrists or any other mental health assessments. The only document he received from the father’s GP is the referral letter.
Dr B confirmed that the nature of psychiatry is to accept the veracity of what someone is telling them, as there are few blood tests and x-rays that can provide any information about a psychiatric condition of a person. He was aware that the father has seen at least two previous psychiatrists. He said that the reference to “pervasive and powerful suicidal thoughts” in his first report is referring to the intensity of the thoughts which were causing the father’s significant distress. He said that the reference to powerful and pervasive together does not mean that someone is on the brink of committing suicide and said that the presence of suicidal and homicidal thoughts are relatively common but the decision or having a plan to act on those thoughts is very rare. I do not accept the attempts to minimise and downplay the import of that sentence. Moreover, the concern the mother had upon reading this coupled with her experiences of the father was entirely reasonable and appropriate.
Dr B agreed that it was important to mention it in the report as he said it was one of the chief sources of the father’s distress. The father was feeling hopeless and distressed by the presence of thoughts about suicide and he had fleeting but intense thoughts of homicidal fantasies towards the warrant officer who bullied him. Dr B confirmed that this was a reference to what was going on for the father in January 2019 and not several years ago. This was with respect to both the suicidal and homicidal thoughts.
The mother’s Counsel put to Dr B that many people will make a throwaway line such as “If I saw him again I would kill him” and that would not be referred to in a medical report necessarily, but what he was referring to was pervasive and powerful homicidal thoughts. Counsel suggested that the sentence in his report was designed to assist whoever was reading that report to get a really good understanding of what the father was suffering. Dr B agreed and said that specifically the report was written for recommendations for treatment with Rehabilitation Centre J. He agreed with the proposition that it was based on what the father told him and that he formed the view that there was serious issues that needed to be addressed immediately.
Dr B says those issues have been addressed in the context of ongoing consultations with himself where initially various inpatient treatment options were explored and as the consultations progressed there was a change in medication. He said he has had approximately fortnightly consultations formally with the father since January 2019 and in addition the father calls him on his mobile phone in between consultations if he is concerned or if he has a question that he does not think requires a full consultation. He said most of the time if the father has a question it is not because he has been distressed but it has been to talk about non-urgent matters that are short, such as discussing dosage of medication, the timing or changing of medication or potential side-effects.
The father is currently taking 200mg daily of Lamotrigine. Dr B said the father is compliant with medication based on the father’s reports but also his responses to the medication.
With respect to the diagnosis of PTSD and bipolar disorder he said that psychiatric diagnoses certainly have overlap and that the father does, in his view, have bipolar II, which is a milder form of bipolar disorder and that is what the medication is for. He said the father had features of PTSD following workplace bullying and as part of his bipolar disorder he has had episodes of depression. Dr B also said that the father had substance misuse disorder which has been in remission in 2019.
Dr B made a note in his records about an incident in 2018 where the mother was worried that the father had gone to the factory to commit suicide. The father told him about that and told him that there was conflict in the relationship where both partners had expressed suicidal thoughts. When asked if the father told him that he broke off all communication with his parents after that incident for six to eight weeks or so, Dr B responded that the father lives next door to his parents and has a very close relationship with them, and like most adults, there are periods when it has been less close. That is not responsive to the question. He acknowledged that it was not referred to in his report. He said he could have written any number of things and that the purpose of the report is to be succinct and describe the current issues requiring treatment. Dr B was somewhat defensive.
The father has told him about intermittent episodes of clinical depression since 2008. Dr B said they have contributed in part because he has not been treated effectively for bipolar disorder and in part because he believes the father was overly medicated previously with treatments that were not appropriate. In addition, there was conflict in the relationship, the business was dissolving and there was excessive alcohol use.
Dr B described the father as very open. He said one of the things the father has been able to work on was his irritability and anger and said that the father freely acknowledged that he has had trouble managing his anger in the past and that his tone of voice and actions have led to regret. The father denied there being any physical violence in the relationship. Unfortunately the father made no such acknowledgement of his irritability and anger and the impact of this on the mother and the children.
When Dr B spoke to the mother, the mother was specifically concerned about the amount of time the father seemed tired and over sedated and at other times full of enthusiasm and possibly excessively energetic. He could not remember if the mother told him she was frightened of the father at times. As best he could recall she was certainly distressed at times by his anger and was upset.
Drug and alcohol use
In his affidavit the father says that when his marriage was breaking down he drank to excess and said that the mother did as well. He said he used cocaine in social settings when the mother was with him and that she used the same amount as him. Historically he used steroids after his knee operation to assist him regain strength. He says he last used them in 2016. He says he used ecstasy on one occasion with the mother and says occasionally he and the mother smoked marijuana. Again he says that he used speed on one or two occasions with the mother before they separated. Apart from the reference to steroids, in each instance the father refers to the mother taking the same amount of drugs if not more than he.
Whilst the mother’s Counsel was critical of the father not obtaining a hair follicle test which Dr I suggested in her family report, given the concessions made about the mother’s drug use, the mother also could have undergone such a test. It is one of the many gaps in the evidence in this case.
The father told her he felt better on speed. When she would object to him taking drugs he would become angry and denigrate her.
The mother says during the relationship she used illicit substances and drank alcohol to excess as a coping mechanism but has abstained from alcohol and drug use since separation. The mother told Dr I she regularly drank alcohol to excess during the relationship as her way of coping. She said she is not drinking now and last used illicit substances shortly before the separation.
The mother said that the father’s drug use hurts his parenting. She says she took drugs as it was the only time he would talk to her. She says she does not have the mental health issues that he does. She said the father’s drug use has worsened his mental health.
The difference in the parties’ cases with respect to drug use is that the mother alleges that the father was an ongoing risk to the children whereas the father does not say the same with respect to the mother.
Neither parent was able to give evidence about positive aspects of the other’s parenting capacity. With respect to the father and his concerns, I accept they are genuine about the mother’s willingness to facilitate his relationship with the children and his maintenance of that relationship if the parties remain living in their respective locations. The impact of the arrangements on the children’s relationship with their paternal grandparents is an important factor and there is uncontested evidence as to the nature of their relationship. Whilst the children having the opportunity to maintain relationships with the maternal extended family is also important, the children should be able to maintain their close relationship with the paternal grandparents.
I am not satisfied that the mother will restrict the relationship between the children and the paternal grandparents if she remains in Queensland. It is difficult to understand the paternal grandparent’s position in refusing the mother’s offer to Skype with the children because they objected to her unilateral actions. This would have contributed to the children saying that the paternal grandparents are angry, with that being compounded by the mother telling the children that.
This is a finely balanced and difficult case. Having weighed up all of the evidence and the competing factors in the mother’s favour and against the children remaining in Queensland I am of the view that the children should be permitted to remain in Queensland with the mother. The financial position of the parties is precarious as I have referred to previously and that raises issues of practicality with respect to the mother and the children returning to Melbourne, namely mother’s evidence that she received financial support from the family violence services she engaged with, which was not challenged. It does raise real concerns about the frequency with which the father will be able to see the children. Of some significance is that particularly in light of the nature of the allegations made by the father and his own evidence of the mother’s lack of supports in Melbourne and the breakdown of her relationship with the paternal grandparents, one advantage of remaining in Queensland gives the mother access to her family supports. The children spoke to Dr I about their relationship with the maternal family.
I must also place some weight on the children’s views, particularly [W] given his age and maturity. I am not satisfied that those views are as a result of the mother coaching or coercing the children and not being genuine.
The father’s orders address the time he seeks in the event the mother is permitted to remain in Queensland. He seeks all of the term time school holidays, with the mother to deliver the children to the father at the Melbourne Airport at the beginning of time and the father to return the children to the mother at the conclusion of time, half of the Christmas holidays and other special days. His orders do not provide for any build-up of time to time to take place in Queensland. The mother seeks that the father’s time continue to be supervised until he completes a men’s behavioural change course and provides a position report and if they cannot agree on whether the report is favourable or not they engage in another family report. I cannot make those orders. They are fraught with difficulty and uncertainty.
The evidence does not justify the orders sought by the mother that the father not know where the children are living and not be permitted to attend the children’s school and extracurricular activities.
The only evidence that supports an injunction being made is a restraint on the parties from discussing adult issues with the children although the utility of such an order on a final basis, despite the commonness of such non-denigration orders being made is questionable.
The father seeks orders that both parties be permitted to travel overseas with the children subject to various conditions related to notice, travel to Hague Convention countries and travel not taking place during school terms given the focus on risk. Unsurprisingly, the issue of international travel was not canvassed by either parent at trial. The issue of whether either parent should be able to travel overseas or only the mother can be the subject of further submissions.
After much consideration I have come to the view that I can only make interim orders about the father’s time. Currently he is having limited supervised time with three of the four children. I think the family is going to need professional assistance in order to repair the father’s and [X]’s relationship. The parties will need to make enquiries as to the availability of services. In the meantime the father should continue to have time with the children supervised by his mother. I will extend the time so it is a full day. I will give the parties an opportunity to make further submissions as to what interim orders should be made for the father’s time and how they should progress. Consideration should be given as to whether or not the paternal grandmother need only be in substantial attendance. Her presence gives some assurance to the children that they are safe given their experiences of the father, especially whilst the family engages in supports.
For these reasons I will make final orders with respect to parental responsibility and the children living with the mother in Queensland and interim orders with respect to the father’s time. Given the allegations about drug use with respect to both parties I will order both to undergo a hair follicle test.
I will list the matter for further directions.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 22 January 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Duty of Care
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