Neill and Redford

[2013] FamCA 588

FAMILY COURT OF AUSTRALIA

NEILL & REDFORD [2013] FamCA 588

FAMILY LAW – CHILDREN – where the applicant mother did not attend court despite being subpoenaed – where the Independent Children’s Lawyer and the respondent father both sought to proceed – where the father asserts the mother is a drug addict – where the father has been convicted of numerous breaches of domestic violence orders – where the father had an inability to regulate his emotions and lacked insight into the effect of his behaviour on others – where it was held the children should not spend time with or communicate with their father – where it was in the children’s best interests that the father be permitted to send cards, letters and gifts

Family Law Act 1975 (Cth)

APPLICANT: Ms Neill

RESPONDENT: Mr Redford

INDEPENDENT CHILDREN’S LAWYER: Mr Reeve

FILE NUMBER: SYC 1496 of 2011

DATE DELIVERED: 9 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 - 21 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stenhouse

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

Orders

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the children M Redford born … 2003 and C Redford born … 2006 (“the children”) upon the condition that prior to implementing any decision about any long term issue concerning either or both the children, the mother contact the father in writing and inform him about her proposed decision and her reasons for taking that decision and invite him to provide her with his response to the proposed decision within a 21 day period. The mother is to consider any response received from the father in that time. After that time the mother shall make and implement the final decision and advise the father as soon as practicable in writing that she has done so.

3. The mother is to notify the father if either of the children has been seriously hurt or is seriously ill.

4. The father shall be permitted to forward to the children, care of a PO Box or residential address the mother nominates in writing, cards, letters and appropriate gifts for their birthdays and each Christmas and the mother is to ensure the children receive such cards, letters and gifts, if she is of the view that those items are appropriate for the children to receive. The mother will forthwith advise the father and keep the father advised of the PO Box or residential address from time to time.

5. All other applications (including the father’s outstanding contravention application against the mother) are otherwise dismissed.

6. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neill & Redford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1496 of 2011

Ms Neill

Applicant

And

Mr Redford

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The circumstances in which the hearing of this case proceeded were somewhat unusual. In the end it was a case involving the respondent father and the Independent Children's Lawyer. The applicant mother, notwithstanding the fact the two children were with her, played no active part in the final part of the hearing.

2. The hearing took place in circumstances where the father pressed his application for unsupervised face to face time with the children and the Independent Children's Lawyer was supporting the recommendations of the single expert which recommendations would see the children not spending any face to face time or communicating with their father (apart from receiving cards, letters and presents from him at Christmas and on birthdays).

3. The father’s overall contentions include:

   3.1.The mother is a proven drug addict (this is a reference to the one positive drug test that is before the court and her failure to comply with the court’s order to undertake random drug tests when requested to do so by the Independent Children's Lawyer);

   3.2.The mother’s dependence on drugs impacts on her ability to financially and emotionally provide for the children from time to time;

   3.3.The mother breaches court orders without the court doing anything about it;

   3.4.The mother absents herself from these proceedings without penalty;

   3.5.The mother makes false allegations and claims against him;

   3.6.The mother engages him in communication in circumstances where he is prohibited from communicating with her, thereby enticing him to breach AVO orders and exposing him to possible criminal charges;

   3.7.The local police deliberately set him up and conspire to create circumstances in which he can be convicted of criminal offences.

4. There is some element of truth in some of those propositions, but the weightier matters relate to the father’s mental status and the consequences the father’s behaviour has had upon the mother.

THE MOTHER’S PARTICIPATION IN THE HEARING

1. In accordance with a direction that I made on 12 November 2012, the Independent Children's Lawyer had issued a subpoena for the personal attendance of the mother at the hearing on 20 and 21 February 2013. The Independent Children's Lawyer had attempted to serve the mother with that subpoena and had on a number of occasions been unsuccessful in locating the mother at her residence at the time of attempted service. On one occasion the process server managed to make contact with the mother on her mobile phone. On that occasion the mother said to the process server “I am not home. I am not interested. Tell the solicitor that you could not find me.”

2. Eventually, after attempting on five occasions to personally serve the mother, the process server left the subpoena in the letter box of the mother’s premises together with $30 conduct money.

3. At the commencement of the hearing I asked the Independent Children's Lawyer and the father whether or not they wished me to issue a warrant to secure the personal attendance of the mother at the hearing. Both the Independent Children's Lawyer and the father indicated they wanted the hearing to proceed without delay.

THE FATHER’S EVIDENCE PENDING HIS UPCOMING CRIMINAL PROCEEDINGS

1. At the outset of the case I indicated that I would provide a certificate under s 128 Evidence Act 1995 (Cth) in relation to any evidence the father gave that might compromise his position in the criminal proceedings against him. There was however nothing that the father said that in any way confirmed the mother’s version of the events leading to the current charges against the father. The father indicated that he had given a record of interview in relation to the charges which was videoed. That police statement is not available to me. In general terms however I understand that the father denies all charges. The father points to the fact that there is a significant inconsistency, relevant to one of the most serious charges, between the evidence the mother has filed in this court and what she has said in her police statement. In the mother’s affidavit filed 4 April 2011, she annexes a document which indicates that whilst she and the father were alone with the children on a farm during Easter 2009, the father had sexual intercourse with her without her consent. The police charge is that that event happened one year later.

2. The father is confident that the Director of Public Prosecutions will not proceed with the charges against him as he says the mother is the only witness and that there is no other corroborating evidence to substantiate her version of the serial abuse and family violence which she alleges.

APPLICATIONS

1. There were two applications before the court. The first is contained in the father’s response filed 28 April 2011. In summary that application applied for the parents to have “equal joint parental responsibility”, with the children to live with their mother and the children to spend time with their father from 9am Saturday to 5pm Sunday each alternate weekend and at other times as agreed between the mother and father. There was provision for time for the father to spend with the children on Christmas Day and other orders relating to communication in respect of major long term issues, provisions of where changeover would take place and a provision for telephone communication on Tuesdays and Thursdays nights between 6pm and 7pm.

2. In the alternative the father applied for an order that he have supervised time at a contact centre. He asserts that upon the one occasion it had happened with the child M there had been no problems.

3. The father also sought an order that the mother not consume alcohol, drugs or any illicit substances in the presence of the children or be in any way affected by them whilst the children are in her care or control.

4. The other formal written application that was before the court was the father’s application that the mother be dealt with for contravention of the interim orders made 7 July 2010. That application for contravention was filed in the Local Court on 10 March 2011 and transferred to the Family Court.

5. On 4 April 2011 when the matter first came before me I noted that:

   8. On 15 March 2011 the [Local] Court transferred a contravention application filed by the father on 10 March 2011. That transfer is to be consolidated with these proceedings.

6. On 2 May 2011 I made the following notation:

   10. It is clear in this case that the mother asserts by way of reasonable excuse to a failure to make the children available, a serious history of systemic family violence. That is the same core allegation that will be the subject of the substantive proceedings in this matter and it is my view that the contravention application filed by the father should be dealt with in the same final hearing process as the substantive matter.  The order in which the applications shall be dealt with is a matter to be further considered.  

7. This matter proceeded before me on the basis that the court would deal with the core issue, namely whether an order should be made for face to face time on the one hand or no time and no communication (apart from cards, letters and gifts) on the other, and then consider the fate of the contravention application.

DOCUMENTS RELIED UPON

1. The father relied upon an affidavit filed by himself on 28 April 2011 and upon the affidavit that he had filed in support of his contravention application filed 10 March 2011. He also relied upon affidavits from his mother Mrs Redford filed 27 April 2011 and his sister Ms Redford filed 27 April 2011, both of whom gave oral evidence. Objections were taken to the affidavits of Ms Y and Ms B on the basis that they were not available for cross examination and I do not take their evidence into account.

2. The father wished to rely upon the affidavit of Ms S (the mother’s eldest child who is an adult). That affidavit was also objected to by the Independent Children’s Lawyer because Ms S was not available for cross examination. The reason given for not making her available for cross examination was that the father is charged with a series of serious criminal offences and that Ms W is a witness for the prosecution. The father wished the court to take this evidence into account, even though Ms S was not available for cross examination. I will take her written evidence into account.  

3. The father also relied upon a statement by Ms W which became exhibit 8. She gave evidence by electronic means.

4. The father made an application that Dr R’s report be excluded from the evidence before the court. The basis upon which he made that application arose from the fact that Dr R did not have the opportunity of observing the children interact with their father (this was through no fault of Dr R who attempted to make arrangements for that to happen on more than one occasion). On the first occasion it was due to happen, the father did not participate in the interviews because upon arriving at Dr R’s premises, he was arrested by police and charged with the offences that led to his incarceration for six months. On a subsequent occasion upon his release from gaol, the mother refused to comply with the direction I had made to deliver the children to Dr R’s rooms. Dr R in his report acknowledges the limitations of his report. He says:

   At the first assessment [the mother] and the children attended but [the father] was arrested. It seems that [the mother] probably notified the police about the assessment and this had allowed the police to arrest [the father]. [The mother] did not attend at the follow up appointment on 23/07/12 and [the father] came alone on that occasion. Nor did [the mother] attend on 25/9/12. Therefore I wasn’t able to see [the father] and the children together or [the father] and [the mother] to assess their relationship. However despite the non appearance I believe I’m able to form some opinions and make some recommendations for the court.

5. Dr R said that he assumed that there was a meaningful relationship between the father and the child M and also assumed from what the child C said to him that C would have also positively reacted to her father. Dr R during his oral evidence had the opportunity of reading the positive report from the G Contact Centre (“Interrelate”) in respect of the one occasion which the mother took M to the contact centre.

6. Acknowledging that limitation (and having Dr R assume a meaningful relationship between the father and both children), I was prepared to accept his report and his oral evidence mindful of the limitation that Dr R had not actually observed the children with their father.

7. The Independent Children's Lawyer relied upon material which had been subpoenaed.

SHORT HISTORY

1. The father was born in 1965. He is currently aged 47.

2. The mother was born in 1968. She is currently aged 45.

3. The mother’s child Ms S was born around 1988 or 1989.

4. The parties commenced cohabitation around 1992 or 1993.

5. The parties’ child M was born in 2003. He is currently aged 10.

6. The parties’ twins J and L were born in 2005. They are currently aged eight. They reside with their paternal grandmother, and are not the subject of these proceedings.

7. The parties’ child C was born in 2006. She is currently aged seven.

8. The parties separated on 31 October 2009.

9. The parties entered into final consent orders on 7 July 2010. Those orders provided that the parents have equal shared parental responsibility, the children live with the mother, and the children spend time with the father for eight hours every alternate Saturday.

10. On 11 March 2011, the mother filed an Initiating Application seeking the consent orders be set aside. She also sought sole parental responsibility and that the children live with her.

11. There is no question that significant events and charges have taken place since the 2010 orders were made.

THE FATHER’S CREDIT AND PRESENTATION IN COURT

1. I am mindful of the mother’s lack of participation in these proceedings. I have some of her untested evidence before me; the Independent Children’s Lawyer read three of the mother’s 2011 affidavits, her application filed 11 March 2011 and her parenting questionnaire. The father became agitated and angered by the fact that his evidence was tested in the witness box when the mother was not present for him to ask her questions.

2. I had the opportunity of observing the father give evidence. I am not prepared to accept what he tells me where it is contradicted by documentary evidence.

3. On occasions the father gave totally inconsistent evidence. For example, the father gave evidence in regards to an incident where he had taken M to a football presentation. The father initially said “the next thing I get a phone call from the police saying that [the mother] has told them that I’ve took the boy away without asking her consent and without any notification as to when I’m taking him home.” Moments later in his oral evidence, the father denied he ever spoke to the police on the telephone. He said the police didn’t speak to him until they took him out of the vehicle.

4. The father had initially denied that he had ongoing feelings for the mother. Having heard his own mother’s evidence, the father conceded that he did have those feelings.

5. The father minimised the aggressive and intimidatory nature of much of his behaviour. His criminal record (including numerous breaches of the AVO) point in the opposite direction.

The father’s presentation in court

1. The father presents at best as an irritated man. Often during the proceedings he was angry. His case is that his anger is about being unfairly judged in a negative way; that he himself has attempted to live with the mother who he asserts has serious drug problems and whom he loved and still loves. He asserts that he has not been justly dealt with and has been judged unfairly.

2. The father is a heavy set man who drives a truck for a living. His physical presence is imposing.

3. During the hearing the father’s moods oscillated between reasonable and barely contained rage. His mood overall escalated in agitation throughout the day. The father at one point slammed his fist on the witness box.

4. Just before lunch on the second day, counsel for the Independent Children's Lawyer asked the father why he became so upset the day before when reading subpoenaed material. The father referred to an entry that he read about dropping the kids off around a railway line and telling them that the foxes and snakes would get them and then going back an hour later to pick them up. When recalling this, the father crushed the plastic cup from which he had been drinking in the witness box and threw it from the witness box and then proceeded to throw the box from his hearing loop.

5. When the father put to the paternal aunt whether he would ever leave his children near the railway to let the foxes or snakes get them, the father’s sister replied “there’s no way in a world he would do that to a kid…it’s just not my brother to do that.”

6. The actual allegation is contained in exhibit 6; progress notes from CC Therapy Service which provided therapy to the children as part of a mental health care plan. A note dated 10 March 2011 states “[a] time she [[C]] recalled being scared was when her father dropped her (and [M]) off at a railway. She said they would go there to look for snakes and foxes, but that Dad would drive away and leave them their [sic]. She advised that he would come back to pick them up. She recalls being scared at this time…”

7. The substance of the allegation does not seem to be quite as extreme as the father interpreted it. Given C’s young age and the fact that she has not seen her father in some time, I am unable to make a finding as to the accuracy of the allegation. I am also unable to draw an inference one way or another as to whether C has been coached in some way to say what she said to her therapist.

8. The father is hard of hearing but with the aid of a hearing loop, seemed totally connected into the sound system generated in the court room through the court microphones. The hearing loop is an electronic device which consists of a handheld box and a lead from the box to ear pieces. When the father threw the box out of the witness box he broke it (notwithstanding the fact that it was still attached to his ear pieces). A replacement box was provided so that the hearing could continue.

9. It was my apprehension that given the father’s inability to moderate his impulses during the first day and a half of the hearing and given what he had already said was his views about Dr R, that it was useful to have a police presence in the court room during the father’s questioning of Dr R. That police presence was useful and the father’s behaviour was comparatively more moderate during the period of time that that police presence was in the court room.

Incident during the luncheon adjournment on the first day

1. On the second morning of the hearing, the Independent Children’s Lawyer asked the father some questions in relation to an incident that occurred during lunch time on the first day. The father conceded that his behaviour lasted for a period of between 15 and 20 minutes. He conceded he hit the bar table, swore very loudly, walked in and out of the court room and was yelling outside in a very loud voice. His behaviour required the attendance of court security.

2. The father conceded that his outburst was quite intimidating and quite scary. The father went on to say that he would harm himself before he would harm anybody else. When asked whether or not he understood the effect that he had on other people when he was in an angry and agitated state (the paternal grandmother and father referred to this as “going crook”), the father concentrated on why he went crook rather than addressing the question about the effect his behaviour had on other people. The father has very little insight as to how intimidating he can be (the father’s mother gave evidence that he has been that way most of his life).

3. The father asserted that he would not show his children that kind of behaviour. He said he cannot control himself in court but he can control himself around his children.

4. The father’s mother gave evidence when asked questions about the incident. She conceded that the father was shouting, slamming the court room door and was “very agitated”. She agreed that his behaviour would have been intimidating to anybody who did not understand her son like she did.

PARTICULAR ISSUES

Request for the Department to intervene and the Department’s current involvement with the mother and the children

1. On 13 November 2012 I made an order pursuant to s 91B Family Law Act 1975 (Cth)(“FLA”) requesting that the Department of Family and Community Services (“the Department”) intervene in these proceedings. They were sent a copy of Dr R’s report and other documents.

2. On 11 February 2013 the Department indicated that a decision had been made not to intervene in the Family Court proceedings. In that letter the Department explained that they had received 18 initial assessments in relation to the children since 2006. They say that the primary themes raised in those reports relate to inadequate shelter, suspected drug or alcohol abuse by the mother, the children being exposed to or subjected to domestic violence, risk of physical harm or injury and inadequate nutrition.

3. Those reports are focused mainly on two things. One is the mother’s inadequate parenting style related to her use of drugs on the one hand and on the other, the father’s inability to control his aggressive impulses which lead to the mother feeling at risk of harm and injury from the father. The Department indicates that they are involved with the mother in an early intervention service delivery option entitled “Strengthening Families”. This service enables case workers to work with families to address the factors which place children at risk of significant harm.

4. The Department state, “Community Services do however wish to inform the court that they will continue to work with the mother and the children until such time as the risk level is deemed ‘moderate’ or ‘low’”. I infer from that comment that at the moment, the Department assessed the risk with the mother as more than moderate. The Department indicate that such risk assessment and case plan reviews occur on a three monthly basis to determine the reduction in a risk level.

The father’s history as contained in police records

1. The father had an opportunity to read his criminal history and apart from complaining about the aliases referred to in his criminal history (including explicitly saying that he had never had the nickname “K”) he did not dispute anything in his criminal history.  

2. The father had a somewhat problematic period between approximately 1985 through to 1992. That history included motor vehicle offences;  break,  enter and steal;  receiving;  using offensive language;  assault (1986);  driving in a manner dangerous;  driving with a low PCA (1986);  offensive behaviour (fighting);  resisting arrest;  driving whilst disqualified;  a second offensive behaviour charge (fighting and swearing in a public street);  another incident of offensive language and resisting arrest;  assaulting police;  malicious injury;  mid range PCA (1991);  high range PCA (1991).

3. In 1995 the father was convicted of possessing and cultivating marijuana and owning an unlicensed firearm. The father’s explanation was that he had taken the rap for the mother in relation to those drugs (he said he “did the right thing” as a husband). There was then a period between 1995 and 2010 where the father does not have any recorded events on his criminal record. The father’s offences from 2010 onwards are offences where the mother was the victim (apart from a low range PCA, and driving an unregistered vehicle).

4. The parties separated on 31 October 2009. Two days later, the mother obtained an apprehended violence order (“AVO”) in her favour.

5. There are 11 separate incidents (over 14 months) which gave rise to the father being charged with a breach of an AVO. The father says that the charges relate to a number of phone calls and messages he sent to the mother over two or three days. He asserts the police treated each message as a separate breach of AVO. The father was also charged with stalk/intimidate/intend fear of physical/mental harm.

6. The father had asserted that the breaches for which he served time related to him responding to messages left on his mobile phone by the mother. I had earlier made some directions about transcribing those messages. Counsel for the Independent Children’s Lawyer informed me that not all the data could be retrieved. The data that could be retrieved has been fully transcribed and became exhibit 10. The father said all the messages were actually transcribed by his criminal lawyer and used in the District Court proceedings to demonstrate that the mother had been actively involved in communication with him prior to him contacting her. The text messages that I have in evidence span from 8 January 2010 to 11 November 2010. It is difficult to draw any conclusions from the transcriptions. The parties appear to be communicating in a fairly civil manner, particularly in relation to child support, up until around June 2010. Clearly the parties were having contact up until that time. From June 2010 onwards the tone of the messages changes and it is clear the mother was consistently complaining the father was in breach of AVO and that she did not want him to contact her.

7. The father was placed on a bond in relation to the breach he committed on 9 July 2010. When he reoffended on 21 October 2010 that bond was called upon. In relation to him being dealt with for the offence on 21 October 2010, he was placed on a further bond.

8. The father was arrested and charged on 2 September 2011. He was not given bail. The charge of 2 September 2011 was heard on 15 December 2011. The father on that day was also dealt with for breaching his previous bond. On 15 December 2011 the father was sentenced for a period of imprisonment until 30 November 2013 with a non parole period until 28 February 2013. That sentence was reduced by the District Court on 1 March 2012 to time served and the father was released from imprisonment on 3 March 2012. 

9. The father on a number of occasions during the hearing expressed incredulity at the fact that he had been sent to prison by a magistrate for 18 months for making a 12 second telephone call to the mother when he was 500 kilometres away. That greatly simplifies what happened when he was sentenced on 15 December 2011, having been refused bail since 2 September 2011.

10. The offence that was committed on 2 September 2011 was in the following context:

    66.1.It was the eleventh breach of the AVO for which the father has been charged (there had been ten previous convictions).

    66.2.When the father was dealt with on 15 December 2011 it was not only in relation to the offence that took place on 2 September 2011 but was also in relation to breaching the bond he had entered into with the court which in turn had been entered into in the context of having breached a previous bond.

    66.3.The father was also dealt with on 15 December 2011 in relation to a charge for stalk/intimidate/intend fear of physical/mental harm.

The 18 charges pending against the father

1. As already mentioned, the father made a record of interview with the police in relation to these charges but that document is not before the court.

2. The father has been charged with 18 offences:

   68.1.seven counts of common assault;

   68.2.two counts of maliciously inflicting grievous bodily harm;

   68.3.two counts of assault occasioning actual bodily harm;

   68.4.one count of assault with act of indecency;

   68.5.two counts of sexual intercourse without consent;

   68.6.one count of using an offensive weapon with the intention to commit an indictable offence;

   68.7.one count of stalking and intimidating with intention to cause fear for personal injury;

   68.8.one count of detain for advantage and cause injury to victim; and

   68.9.one count of detain person in company with intention to obtain advantage.

3. The father highlighted the discrepancy in the mother’s statement about one of the allegations of him having sexual intercourse without her consent. As also already mentioned, the mother, in her affidavit filed 4 April 2011, indicates that the second incident of this nature took place in April 2009, however, in the summary facts in evidence, the mother’s statement to the police that led to the charges against the father place this incident a year later, namely 2 April 2010, which was Good Friday. The father’s sister gave evidence that she was at the farm at Easter 2009 and the mother was not in attendance for much of that day (I am unclear as to whether or not the father says he and the mother were alone at the farmhouse in 2010).

4. It might be the case that these inconsistencies mean that the prosecution will not be able to obtain a guilty verdict against the father in relation to some or all of the 18 offences with which he is currently charged. The father highlighted on a number of occasions the fact that the charges brought against him mean that he could go to gaol for a total of 170 years.

5. The father’s view in relation to the allegations made against him is that they will never go to trial because the mother will never be able to give evidence consistent with her police statements. He is of the view that those statements have been generated with the aid of refuge workers and that the reason she did not turn up for the hearing in the family law matter was because she knew her allegations would have collapsed had she been cross examined.

Incidents recorded in the police records

1. The father is generally of the view that police, particularly in Town F, are corrupt and are prepared to set him up in a way that would allow them to charge him with further criminal matters.

2. A good part of the father’s current hostility towards the police and particularly the F police, comes from his assertion that they have charged him with serious charges with no evidence. Given the statements that the mother has made to them, that is clearly not the case. The charges are justifiable; whether or not they are sustained is a different question.

3. Counsel for the Independent Children's Lawyer attempted to put to the father a number of matters that are recorded in the COPS entries (the computerised incident reports produced by the NSW Police under subpoena). It was explained to the father (on more than one occasion) that the reason for doing this was to give him the opportunity to respond to information that the court would have from what is recorded in those documents. The father was unable in any calm and concise way to respond to this line of questioning. He perceived that raising with him what was in those records was a personal attack upon him that was very unfair given that the mother had failed to attend and participate in the proceedings. As already indicated, he became so agitated and angered about this line of questioning that counsel for the Independent Children's Lawyer desisted from continuing it (the result being that I do not have the father’s version of some of what is in the police records).

End of season football presentation (18 September 2010)

1. The father answered questions about this event.

2. The father had the two children with him in the afternoon and took C home. He secured the mother’s agreement that he be able to take M to an end of season football presentation. The versions given to the police by the mother and by the father differ in relation to the agreement that they had. The mother wanted the police to be present when the father returned M to her. The father conceded that he drank during the evening. He said that by the time he left the venue with M at 11pm he had formed the view that he was affected by alcohol to an extent that would prevent him from driving a motor vehicle (he emphasised that he has a truck driver’s licence which requires the licence holder, even when driving a car, to have a blood alcohol concentration of zero). He decided to sleep in the car until he was able to drive and invited M to do so as well. The father agrees that about 2.37am the police arrived at his motor vehicle and woke him up. The police described the father as being heavily intoxicated at that time. I note the medical notes from 8:00am on 19 September 2010 state that the father had “been drinking all day”. In oral evidence, the father denied he said that to medical practitioners.

3. The father agrees that he reacted badly and slammed his hands on the dashboard. The police allege he also repeatedly banged his head on the steering wheel. There is a difference between the police record and the father as to how much of what then happened M witnessed, the father alleging that M was whisked away by the police; the police’s version is M saw his father’s behaviour. Even on the father’s version, the father behaved in a highly belligerent and aggressive manner towards the police and M saw his father react in that way. There was an inconsistency in the father’s evidence. The father originally indicated that he was threatened by a taser but then denied that part of the police record which said a police officer had drawn a taser and pointed it at him. I accept the police record that a taser was drawn and pointed at the father. I also accept that the father was heavily intoxicated at this time and that the police’s contemporaneous record of what happened on that night is more inherently likely to be accurate than the father’s reconstruction of what happened. The police’s version of the father’s behaviour on that night is very consistent with behaviour I have witnessed from the father over a number of court events and in particular throughout the first day of the final part of the hearing.

4. Exhibit 11 is subpoened notes from the WG Health Service. I note there is an entry on 19 September 2010 at 3:50am stating “[b]ought [sic] in by police with H/O threatening self harm. Very angry and upset…” I find that the father did threaten self harm when the police woke him after the football presentation.

The father rolling his truck in early September 2010

1. The COPS record from that incident on 18 September 2010 states the father “told police of a truck accident he was involved in about two weeks ago and how he was lucky he had survived.” The COPS note says the father further said “his truck rolling was not an accident, he had deliberately done it and next time would ensure he wouldn’t survive.” The COPS record father then went on to say that the upcoming Monday he would “deliberately crash it to get himself killed.” 

2. The father denied the whole conversation. The father agreed he had been in a truck accident and he had been very lucky to survive. He said that his truck had rolled 4 kilometres east of X and he had almost fallen off a 300 foot cliff. He said the X police investigated the incident, and had cleared him “100 percent”. He said the X police accident report stated the cause of the accident was black ice, fog, and a king pin falling out of the front right hand steer wheel. The father said he hadn’t been able to turn the truck around a corner. The father said the police did not charge with him negligent driving, but that his licence was suspended for two months. He said the suspension was because a week later the mother told the police he rolled the truck deliberately and the police recommended to the Roads and Traffic Authority that he was mentally unfit to drive a heavy vehicle. The father regained his licence once he had spoken to a psychiatrist (I note Dr R quoted the father saying “[t]hey said I did it intentionally, I saw Dr [U] … he supported me.”)

3. The father said he did tell the F police of the accident when the accident occurred. He said he called F police from hospital and asked them to tell the mother that he had had a truck accident and he didn’t want M to get upset if M saw it on the news. 

4. I have insufficient objective evidence to form any conclusions about whether or not the truck rolling was an attempt by the father to kill himself or a mechanical mishap. I infer the police did not have sufficient evidence with which to charge the father with a driving offence but they were sufficiently concerned about his mental state to prohibit him from driving until he was seen by a psychiatrist. On balance, it is at least likely that the father said what the police allege he said in their COPS entry of 18 September 2010.

The incident on 13 October 2010

1. The father did engage in questioning about this incident.

2. This was a day when both parties attended the court house in relation to a breach of a family violence matter. The father asserted he spent two hours speaking the mother on the phone the night before. The father agrees that the mother was walking towards the court house with two refuge workers. He approached and said to the mother, “You said we could talk today, it’s all because of these interfering bitches”. The father agreed the mother ignored him and he then rested his hand on her left shoulder saying, “[Ms Neill] you said we could talk today, you said we could be friends”. He agreed that she did not respond and that she did not turn her head. The father agreed that after the court proceedings the mother was escorted back to where her car was parked across a park adjacent to the court by Sergeant P (a male sheriff officer) and the refuge workers. The father agrees that he followed the mother through the park and said to her, “[Ms Neill] it’s Thursday tomorrow. Did you still want some money?” The father agrees that Sergeant P said to him, “You could be in breach of your AVO. She doesn’t want to talk to you”. The father agrees that he said, “Fucking bullshit, I can go and talk to her”. The father agrees that Sergeant P positioned himself in front of the mother. The father was asked whether or not it was plain to him at that time that the mother did not want to talk to him and he responded that the only reason she did not wanted to talk to him was because the two refuge workers were there and she would be embarrassed to do so in their presence. It was the father’s view that Sergeant P was just trying to big note himself and intimidate him. The mother was then escorted to her car and got into her car. The father followed. When the father was asked whether or not he thought at any point that it would be a good idea to back off, he said he did not think about it for one second. After the mother was in the car the father went to the door adjacent to where she was sitting in the car and opened it. The father attempted to engage the mother in conversation about money. The Sergeant physically moved the father away and the father said to him, “You fucking dog, you fucked it up, read the AVO”. The father agrees that he was in an agitated state at this time but was not prepared to concede that the mother may have felt intimidated by his behaviour.

The father’s response to other police records

1. The father has no memory of ringing the police on 13 January 2011 and saying to them, “You fucking cunts tell [the mother] to call me”.

2. After being asked some questions about a telephone call on 4 February 2011 and denying that he had said certain words, the father slammed his hands on the witness box.

Another example of the father’s interaction with police

1. There is a police record on 13 April 2011 that the father in a telephone call to F police in a conversation with Constable D said the words, “You made my life hell you fat prick. I want ---”. At this point Constable D terminated the telephone conversation with the father. In another phone call on the same date with a different police officer, the father said, “What is going on in Senior Constable [D’s] head, as he is full of shit”.

2. The father had a telephone conversation with Constable E on 21 April 2011. The Constable has recorded in her notes the conversation with the father about an incident involving Senior Constable D and Constable E at F Police Station. The father stated:

   “… [a reference to Senior Constable [D]] has made a mistake he’s going down in a big way. I was brought up that you do what you have to do to get your point across. Whatever you have to do mate.”

3. That note is consistent with the demeanour and language of the father during the hearing.

4. Constable E records that she reminded the father that she was present during the incident in respect of which the father was complaining that Senior Constable D had attempted to stand over him. She records she said to him, words to the effect:

   [Mr Redford] I must say that I was present if you recall and I don’t remember things happening quite like that – Do you remember standing out the front telling us you would take an axe to the front door if we didn’t let you in? I’d say that you were matching any behaviour exhibited by [D].

5. The father responded:

   I hope I did intimidate him coz he was trying to standover me.

6. The father also at this time said to Constable E that whilst the mother and the children had nothing to fear from him (redacted) does have something to fear.  

7. Constable E recorded that the person of interest had an extreme hatred of Senior Constable D as he had been listed as informant on a substantial number of charges laid against the father. The father also directed anger towards the women’s refuge and the “man haters” who were employed there. It is clear from the note that Constable E spent some time speaking in a fairly calm way to the father on this occasion and to some degree moderating the anger with which the telephone calls commenced. That dynamic was replicated during the two days that the father gave evidence during the hearing.

The father’s relationship with his twins (children who are not the subject of these proceedings)

1. The children have siblings at their school. They are the twins J and L both born in 2005. The children have some contact with their siblings at school but I accept that they are fully discouraged from any greater involvement than that by their mother. This is obviously a cause of some pain to the paternal grandmother. I note M and C both told the expert they get along well with the twins.

2. The father’s mother is a 73 year old woman. She appears to have done an exceptional job taking on the twins as babies and raising them.

3. The expert reported that the father said he sees the twins each Easter. In her oral evidence, the paternal grandmother said the father has not seen the twins since April 2012. There was no compelling explanation given as to why that was so. The father’s current bail conditions exclude him from going into the township of F. Whilst the father indicated that the bail condition was that he not go within the city limits of F, there was at least, according to the police notes on 8 April 2011 and 19 April 2011, a bail condition which required the father not to contact the mother by any means whatsoever and not to come within a 25 kilometre radius of F.  

4. The father indicated that he had not had any contact with the twins because he was fearful the F police would fabricate charges against him. He insisted that in order for him to be able to see the twins, his 73 year old mother would have to travel to G, a distance of 220km round trip. When I inquired of the father as to why he could not go to just outside whatever radius from F his current bail conditions impose so that the twins could be delivered to him for a day out by his mother or some other friend from F, he indicated that he would not chance the local police in F finding him and charging him with an offence.

5. In her oral evidence, the paternal grandmother said the father speaks to the twins quite regularly on the phone. She said that he rings every week, and she sometimes rings him. I accept her evidence.

The mother’s drug taking

1. The Independent Children’s Lawyer read in his case the mother’s parenting questionnaire filed on 16 February 2012. In answer to whether the mother had or has any problems with drug or alcohol abuse, the mother answered “yes, have used amphetamines in past have not used in over 6 years.”

2. Exhibit 3 sets out the letters from the Independent Children’s Lawyer to the mother requesting she submit to drug testing. The Independent Children’s Lawyer made eight requests; 6 July 2011, 14 September 2011, 9 November 2011, 4 July 2012, 29 August 2012, 26 September 2012, 18 October 2012, 18 February 2013.

3. The mother complied with these requests on two occasions; 21 July 2011 and 13 September 2012. The mother returned a negative reading on the first occasion. On the second occasion she recorded an amphetamine reading of 206 micrograms/litre. On 10 December 2012, the Independent Children’s Lawyer wrote to Dr A, Director of Chemistry and Toxicology at V Pathology, seeking confirmation the reading was not a false positive and seeking clarification on the half life of amphetamines. Dr A replied saying:

   Based on the immunoassay screening tests and the LCMSMS confirmatory results, I am confident beyond a reasonable doubt that the substance detected in the urine is amphetamine. The subject has declared taking Cymbalta (Duloxetine), Nurofen Cold & Flu tables (Ibuprofen and Pseudoephedrine) and multivitamins. None of these would cause a false positive result.

   …

   The elimination half-life of amphetamine is around 12 hours, but varies between 7 and 34 hours – being dependent on the pH of urine… In a subject with a creatinine of 14 mmol/L…this indicates usage within the last four days, most likely 2 to 4 days prior to sample collection.

4. A number of the father’s witnesses gave evidence relating to the mother’s use of drugs during the time that they were together. The father himself gave evidence about the mother’s use of drugs whilst they were together.

5. The father said that the mother did not use needles but took amphetamines orally. The father asserted that the mother used drugs heavily during her pregnancy with the twins. The father said the mother’s drug use moderated in 2005. The father asserted that at one point the mother had a $1,300 a week drug habit.

6. The father said that because of the mother’s use of drugs he could not trust the mother to look after M when he was a baby and from about eight months he took him to work with him on the farm. He said he did not do the same with C because she was a girl and it was inappropriate for him to be involved in her toileting. The father asserts that any arguments during the relationship with the mother were about her use of drugs. I infer however that the arguments between the parents were frequent and that the father could be very intimidating in those circumstances.

7. The mother is currently subjected to a supervisory regime by the Department of Family and Community Services and part of the tender bundle at tab 1 is a letter from the Department dated 11 February 2013 in which they indicate that the mother is currently involved in a “Strengthening Family Action Plan” which includes “psychological support for [the mother], urinalysis drug screening, regular home visits, educational support for the children, and general support and advocacy in relation to gaining independent accommodation and support in regards to resource management.”

8. The mother’s positive drug test in September 2012 is concerning. I do not have the results of any urinalysis or drug screening which the Department may have arranged since September. The mother’s failure to comply with the requests from the Independent Children's Lawyer and otherwise involve herself in these proceedings means I do not have the information which I would have otherwise had about these matters. I however draw some comfort from the Department’s current involvement with the mother.

The mother’s non compliance with orders

1. The father can rightly point to the fact that the mother has behaved in ways which have not been the subject of sanction. The father has a right to complain about the fact that the mother has not complied with a number of orders and directions that I have made, particularly in relation to drug testing and her participation in these proceedings, especially the final stage of the proceedings.

2. The mother failed on two occasions to take the children to see Dr R so that they could be interviewed with their father and as a result, the report that I have is deficient in as much as Dr R did not have the opportunity to observe the children with their father.

3. The father focused on a number of occasions on the fact that he was the one who was being “bagged out” and “put over the roaster”. He saw that as totally unjust in circumstances where the mother had not complied with orders and had not attended to participate in the hearing. Although the way it was expressed was demonstratively aggressive, his frustration was understandable.

The father’s assertion that police fabricate charges against the father

1. As is already clear, the father deeply loathes all police officers in the F area.

2. There is no clear evidence that the mother has made false allegations against the father in relation to breaching family violence orders. The father does not point to any evidence of any hearing of any such charges that have been dismissed where he has been found not guilty of the charges. On all occasions that I am aware of, the father has in fact pleaded guilty to charges relating to breach of family violence orders; even in relation to the offence for which he was gaoled where he asserts that he established to the judge in the District Court that the offence was not proved (and therefore the judge gave him time served). The actual criminal record shows that the conviction was confirmed and it was only the sentence that was reduced in terms of its severity.

3. I do not accept that there is any evidence that would indicate that the local police set the father up so that he was charged and convicted of criminal offences of which he is not responsible.

4. I do believe however that there has been a large number of occasions involving the father and the local police at F where the father has behaved very badly towards the police and I am prepared to accept that the police would take a zero tolerance approach in relation to any offence by the father against the mother. There is evidence the police have refrained from taking action when the father has abused them.

The father’s feelings for the mother

1. Dr R in his report comments that “[the father] appears to be somewhat love sick with regard to [the mother] and infatuated with her. He appears very traumatised by the loss of this relationship. It’s difficult to know how committed to the children [the father] is to the children [sic] as he appears more preoccupied with [the mother] and suffering the loss of [the mother]. He has allowed himself to be breached many times with AVO’s which has resulted in his imprisonment. It appears that his preoccupation with [the mother] is impairing his common sense here”.

2. In cross examination, the father denied that he was still in love with the mother. The father’s mother however, after hesitating, very honestly answered that she believed that her son was still very much in love with the mother and would have her back again immediately if the mother indicated she was prepared to reconcile.

3. During his oral evidence the father indicated that he wished the mother would take a “hot shot” (by which the father meant a drug overdose) so that she killed herself. When asked what impact that would have upon the children, the father said “It’d shatter my kids. But do you think she cares about that? She doesn’t, because she still does it [takes drugs].” My overall impression was that whilst the father was able to recognise the distress that the mother’s death might cause the children, he did not attempt to change the statement that he had made.

4. The strength of the father’s feelings for the mother is demonstrated by the following dynamic. On the one hand the father is facing serious criminal charges (including two counts of having sexual intercourse with the mother without her consent). On the other hand the father eventually conceded that he would have the mother back tomorrow if she asked him to reconcile. He said “if I could trust her, and I knew she wasn’t on drugs, I probably would take her back, because I’ve spent half my life with her”.

The father’s complaints about Dr R’s report

1. There were a number of minor errors in Dr R’s report of a factual nature which Dr R either clarified or conceded. The father seemed to think that these errors vitiated the opinions and recommendations in Dr R’s report. I find they did not.

2. The father on a number of occasions had the ability to find a small mistake (for example a typographical error in Dr R’s report about the age at which the paternal grandfather died which was a transcription error from the doctor’s notes) and to extrapolate from that mistake the assertion that all the allegations and/or opinions which did not assist him were no longer able to be maintained.

3. Dr R conceded that some of the words that seem to be attributed to Ms Redford (the father’s sister) in the report were actually said by the father (that seemed self evident from the text of the words in quotation marks).

4. The father on more than one occasion asserted that Dr R had formed an inappropriate opinion about him because he had come from work in his work clothes and Dr R had described the father’s appearance in the following way:

   [The father] presented unkempt in his work clothes. He wore jeans…

5. I accept Dr R’s evidence that that note was descriptive only and had no bearing upon the opinions that he formed about the father’s mental status and other opinions expressed in his report.

6. The father complained that Dr R’s opinions had been affected by what the refuge workers had told him. I accept that Dr R saw Mr H and Ms I (refuge workers who attended the interviews with the mother) as advocates for the mother. Dr R said that he did not form a view about the truth of the things that they told him. Both the mother and father told Dr R there was conflict in their relationship.

The evidence of Dr R

1. The independent expert observed that the child M got on well with his mother.

2. Dr R’s view was that M’s statement that his father had “threatened to roll a car” was more likely to be something M overheard his mother say. I would not necessarily draw the same conclusion. M was with his father on 18 September 2010 when his father made the statement to the police (which I have previously recorded) asserting he rolled his truck deliberately and next time he would ensure he would not survive.

3. The father told Dr R that he did not like being told what to do and that trait in the father does not play well when the father is interacting with those in authority, particularly in circumstances where he finds himself unable to control his impulses.

4. Dr R opined that the father does not have any insight into the impact that his angry reaction arising from his loss and grief has upon the mother and the children.

5. Dr R opined that the father’s reference to wishing the mother dead from a “hot shot” was not surprising and that the use of such “colourful language” expressed the depth of his despair and hurt.

6. As already mentioned, Dr R concluded that the father was obsessed with the mother and that those strong feelings were not something that he could easily control. The expert opined that the father found it hard to separate his feelings of the loss of the mother and focus on what the children might need.

The father’s mental status

1. Dr R diagnosed the father as probably having an anti-social personality disorder. That was a provisional diagnosis and one about which Dr R was not absolutely firm. Dr R described the disorder in the following way:

   It’s a disorder where there’s a life long pattern of difficulty managing impulses; where there’s repeated conflict; difficulty resolving issues with others. Often there are [sic] infringement in the rights of others, lack of insight into the effect that you might have on others… lack of sensitivity and lack of empathy for the impact of behaviour and threats against others.

2. The father does not think that he is anti-social because he asserts that he gets on well with everybody.

3. Dr R was of the opinion that the father’s problems are related more to inter-personal contact rather than in being able to control himself in the environment of his employment. Dr R acknowledged that the fact that the father has had the ability to maintain full time employment and interact with bosses and other work colleagues in a manner which has not come under any notice might point in the direction of not confirming that diagnosis. Many of the aspects that are required to diagnose the disorder are however present in the history of the father’s behaviour that I have. If the father does not have such a disorder, then he certainly has significant difficulties with anti-social personality traits.

4. The father during the final hearing (and on an earlier occasion) conveyed the pain that he felt as a truck driver when he regularly saw intact families going about their daily activities on the street. He said that he would regularly weep for kilometres after observing children with their parents. It is unclear to me how much of the emotional grief the father feels is related to the loss of his relationship with the mother and an intact family and how much is related to not being able to see the children. The father’s infatuation with the mother, combined with the father’s lack of sophisticated emotional regulation, explains much of the behaviour that has led to the father being a psychological and emotional risk to the mother and consequently to the children.

5. Dr R suggests that there is some evidence that when the father was 13 he suffered frontal lobe damage and that that might be a useful source of further investigation. To my knowledge, no further investigation has taken place.

6. The father’s mother gave frank and cogent evidence. She conceded that her son had a very low threshold before he became agitated and aggressive. The father’s mother was at pains to say that in her knowledge, over a long period of time the father’s frustrations had not led to any physical outcome. The father’s criminal record shows that he has been involved in fights (although the father asserts the assault charges related to incidents with police rather than civilians). So far as I know, the mother does not allege any physical violence by the father towards her or the children prior to the making of the current serious charges against the father.  

Incident on 23 January 2010 at F Hospital

1. Exhibit 11 includes assessment notes from the WG Health Service. The notes record the father attended the hospital on 23 January 2010 at 4:50am. The father had been charged with breaching an AVO the night before. The notes record the presenting problem as “threatening self harm” and the mode of arrival as “police”. The notes further record “bought [sic] in by police with H/O threatening self-harm. [The father] stated he had no real intentions of harming himself.” The father went on to have a teleconference with a psychiatrist via video link. He remembers being prescribed Effexor, an antidepressant drug, but he said that prescription was for his nerve rash.

1. I accept Dr R’s view that the father feels a great connection with the mother and cannot cope with severing the relationship. This leads to him knowingly breaking the law. The father would say that the mother manipulates these situations but in the end the father in the past has not been able to avoid them. 

2. I conclude that given the nature of the father’s inability to control himself, it would be highly likely that there would be outbursts in front of the children in circumstances where the father was challenged by somebody in authority about some behaviour or if one of the children themselves took a contrary position to something that he wanted to do. As Dr R commented, children are likely to be challenging and misbehaving from time to time and normal children would be rude and objectionable at times.

3. The Independent Children's Lawyer in final submissions presented two alternate proposals with the preference of the first. The first proposal was in accordance with Dr R’s recommendation, namely, that an order be made for no time and no communication with the children and that the father’s contact with the children be limited to sending cards and presents on birthdays and Christmas. The alternate proposal was for some supervised time in a child contact centre.

4. It would be possible to make an order for recognition contact in a supervised setting three or four times a year. Dr R’s concern was for the potential for conflict between the father and personnel at the contact centre in circumstances where the father openly admits he has little ability to manage his emotions when challenged by someone in authority. Dr R’s opinion was there was still a high risk that there would be conflict in that situation.

5. The father asserted that G Contact Centre have left the file open so that they are available to provide that facility. I am unable to be confident as to whether or not that is so but I accept that if I made an order it is more likely than not the child contact centre would attempt to facilitate the order.

6. However I find it is not in the children’s best interests to make such an order. I find that it is in the children’s best interests for no order to be made for the children to spend time with, or communicate with, their father.

7. The expert opined that cards and letters “would be of significant benefit to the children to know that their father does have an interest in them.” I accept it is appropriate for the father to be able to send the children cards, letters and gifts for their birthday and for Christmas, and I will order that the mother pass on those cards, letters and gifts should she deem them to be appropriate.

OTHER OUTSTANDING APPLICATIONS

1. As indicated, on 10 March 2011 the father filed an application, in the Local Court, that the mother be dealt with for contravention of previous orders. All prior orders have now been discharged. I have found it is in the best interests of the children not to have any further time or communication with their father (other than cards, letters and gifts). In those circumstances there is no utility in proceeding with the outstanding contravention application. This application, on the evidence as I have found it, would inevitably be dealt with in the context of the mother being able to establish a “reasonable excuse”. Even if I am wrong about that and the father was able to establish contravention without reasonable excuse, it is unlikely in all the circumstances that any penalty would be imposed against the mother. Accordingly I dismiss the application for contravention.

I certify that the preceding one hundred & ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 9 August 2013

Associate: 

Date:  9.8.2013