O’BOYLE & SALT

FAMILY COURT OF AUSTRALIA

O’BOYLE & SALT

[2014] FamCA 132

FAMILY LAW – CHILDREN – Best interests - with whom the children shall live and spend time – four boys who have been living with the father since separation almost two years ago – youngest child moved to live with the mother over the last eight months – three oldest children express a wish to live with the father while the youngest child wishes to live with the mother – the oldest child has been estranged from the mother since separation and expressed a wish to remain living with his siblings– the three oldest children have been aligned with the father and alienated from the mother – children’s views distorted by extreme loyalty conflicts and alienation –the children have had significant behavioural problems and poor attendance at school when in the care of the father – the youngest child has been bullied by his older brothers for maintaining his relationship with the mother - the children have been disrespectful to their mother mimicking the father’s behaviour toward the paternal grandmother - father has poor mental health – father has a history of marijuana use – the father relies heavily on the children for emotional support – children at risk of psychological and emotional harm in the father’s care – children to live with the mother – children to initially to spend limited time with the father in a contact centre – father’s supervised time may increase and be supervised by the paternal grandmother if he attends for psychological treatment – eldest child to have the choice to move back in with father after engaging with a psychologist and the expiration of a six month period if this is still his wish

FAMILY LAW – CHILDREN – Parental responsibility – no presumption of equal shared parental responsibility due to extremely poor parental relationship – the father was violent throughout the relationship – where the paternal grandmother has assumed parental responsibility for the children – paternal grandmother prioritises the father over the children and enables the father to put his own needs ahead of the children’s – the father relies heavily on the paternal grandmother to help care for the children – mother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT:

Ms O’Boyle

RESPONDENT:

Mr Salt

INDEPENDENT CHILDREN’S LAWYER:

Peter Hamilton

FILE NUMBER:

NCC

1801

2012

DATE DELIVERED:

14 March 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

10, 11, 12, 13, and 26 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weightman

SOLICITOR FOR THE APPLICANT:

Joplin Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Obradovic

SOLICITOR FOR THE RESPONDENT:

Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Hamilton & Associates

Orders

That all prior parenting Orders in relation to
(a)       H born … November 1999;
(b)       C born … September 2001;
(c)       T born … August 2002; and
(d)       O born … December 2006
(collectively the children) are discharged.

Parental responsibility

That the mother shall have sole parental responsibility for the children and shall advise the father in writing of any decision she makes in relation to the long term issues for the children, including but not limited to enrolment at school, specialist medical treatment and religious instruction.

Residence

That the children live with the mother commencing 14 March 2014.
That the mother shall take the three older children to the home of the father to enable them to collect their clothes, school books, uniforms and other personal possessions at 10.00 am on 15 March 2014 AND to that end the father shall:
(a)remain away from his home between 9.45 am and 12.00 noon on that day;
(b)take every step necessary to ensure that the stated possession of the children are easily available to them for collection.
That the mother shall do all acts and things necessary to arrange for each of the children to participate in therapy with a Clinical Psychologist within B Psychologists.
Each of the parents shall engage in the therapeutic process to the extent that the psychologist engaged for the children requests the participation of either or both of the parents, with particular reference to consideration of H returning to live with his father after six months from the commencement of the therapy PROVIDED THAT the father has participated in the therapeutic process as requested.
In the event that H does after the six month period continue to express and hold the view that he wishes to live with his father and the father has participated in the therapy as requested, thereafter H may live with his father and spend time with his mother not less than one weekend per month and failing agreement otherwise the first weekend of each calendar month.
That the mother shall provide to the psychologist the following documents:
(a)Family Report dated 30 May 2013 and two prior Memoranda of Ms D, Family Consultant dated 16 July 2012 and 7 January 2013; and
(b)these Orders and Reasons for Judgment.
That the father may provide to his consulting Psychiatrist Dr E and/or Psychologist Ms F the following documents:
(a)Family Report dated 30 May 2013 and two prior Memoranda of Ms D, Family Consultant dated 16 July 2012 and 7 January 2013; and
(b)these Orders and Reasons for Judgment.

Time and Communication

That the mother and the father forthwith do all acts and things necessary to complete the Intake Assessment for use of a Contact Centre in the Newcastle/Hunter area such Centre to be nominated by the father and advised to the mother in writing within seven days of the date of these Orders.
That for a period of six months from the date of acceptance by the Contact Centre C, T and O shall spend time with the father in the Contact Centre each alternate weekend for a period of two hours and failing agreement otherwise on Sundays NOTING that H may also attend if he wishes.
That from the date of these Orders until the conclusion of the six month period of time pursuant to Order 10, the father is restrained pursuant to s 68B of the Act from approaching, contacting and communicating with the children in any way other than in accordance with these Orders AND FURTHER the father is restrained from causing his mother or any other person to approach, contact or communicate with the children on his behalf.
After the conclusion of the six month period of time pursuant to Order 10, the children shall spend time with the father ON CONDITION that the paternal grandmother is present overnight in the home of the father during every night of each period of time as follows:
(a)during school terms each alternate weekend from Friday after school until before school the following Monday;
(b)commencing after Term 1 in 2015, for one week of each school term holiday and failing agreement otherwise from 12.00 noon on the first Saturday of the holiday period until 12.00 noon on the second Saturday;
(c)
commencing Christmas school holidays in 2015, failing agreement otherwise from 2.00 pm on Christmas Day until 5.00 pm on

28 December and for one week commencing midday on the fourth Saturday of the holiday period until midday on the fifth Saturday.
That the father shall advise the mother forthwith of any admission to hospital for him and ON CONDITION that the father provides to the mother written advice from his treating Psychiatrist that there would be no adverse impact on the children, or any of them of so doing, the mother may take the children or any of them to visit the father in hospital.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these Orders

THE COURT NOTES:

That the mother is at liberty to change the enrolment at school of the children or any of them in consultation with the Principal of the relevant schools and also with H and C; and is at liberty to take the children away for a holiday for a period of up to two weeks before the new enrolments commence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Boyle & Salt 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 NEWCASTLE

FILE NUMBER: NCC1801 of 2012

Ms O’Boyle

Applicant

And

Mr Salt

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of four boys aged 14, 12, 11 and 7. The applicant is the mother, Ms O’Boyle, aged 33. The respondent is the father, Mr Salt, aged 39. The parties lived together for 14 years from 1998 until separation in March 2012.
The mother has a recent but committed relationship to her current partner Mr G.
The present arrangement is that the three older children live with their father and the youngest lives with his mother.
Since separation the children have been put under intense pressure from both sides of their family and have shown signs in their behaviour and conduct of not coping with that pressure.
In July 2012 the parents consented to interim orders made in the Federal Circuit Court for the children to live with their father. When asked about this the mother said that she had not wished to agree to those orders, but had been directed to do so by her then solicitor and complied with that direction.
In July 2013 the mother consented to orders for the three older children to live with their father and the youngest child to live with her, with orders for time to be spent in each household by all of the children.
The July 2013 orders were made after the release of a family report on 30 May 2013 recommending that the mother have sole parental responsibility for the children, that they live with her and that the father have supervised time only.
The mother did genuinely consent on her evidence to those orders. They were made shortly before a planned period of hospitalisation for the father at J Hospital. During those weeks in hospital the three younger children were to live with their mother, with the oldest child to visit her on occasion. Both parents were stated to be hopeful at that time of improvement in family relationships. Sadly there was no such improvement and the orders were disregarded.
The oldest boy does not see or communicate with his mother. That has been the case for the two years since separation.
The two middle boys have spent some limited time with their mother often with considerable resistance.
The youngest boy sees his father and brothers regularly.
The positions of the parties reflect what was revealed by the evidence; that each parent perceives that the children are at an unacceptable level of risk in the care of the other parent.
The reasons for the deterioration of family relationships to this extent are truly complex.
The mother alleges a history of assaults on her, abusive language and threats of suicide by the father episodically throughout their relationship.
Both parties refer to heavy dependence by the other on alcohol during the relationship; neither denies their own use.
Further the mother asserts that the father was a daily user of marijuana, or a synthetic substitute, to the detriment of his mental health which had been an issue throughout the relationship. The father denies it was. The medical evidence suggest otherwise.
The father suffered a traumatic injury at work in December 2011; his behaviour changed and his mental health deteriorated.
The children have raised concerns about both the current and former partners of the mother since their parents separated.
The paternal grandmother is involved on a daily basis in the care and management of the children. She does not trust the mother to care for them. She has effectively assumed parental responsibility for the children.

Proposal of the mother

The application of the mother had been for the children to live with her and for sole parental responsibility. She proposed a six month break from the paternal family, followed by limited supervised time for 12 months between the father and all the children at a Contact Centre and thereafter as agreed.[1]
[1]Amended Initiating Application of Mother filed 22/10/2013
The mother wished to keep the four children together. She did not otherwise oppose the approach of the orders ultimately sought by the Independent Children’s Lawyer.[2]
[2] Exhibit 39

Proposal of the father

From 31 July 2012 until this hearing, the position of the father was for the children to live with him, the parties to share parental responsibility and for time with the mother to be as agreed.[3]
[3]Response of Father filed 31/07/2012
By a proposed Minute of Order put forward on the first day of this hearing[4] the father changed his position in two ways. He sought sole parental responsibility for all the children and he defined his proposal for time and communication between the boys and their mother.
[4]Exhibit 9
His proposal included the father being “in the background and as far as practicable out of sight” for the short periods of time with their mother proposed for the three younger children in the first six weeks after final orders.

The Orders proposed by the Independent Children’s Lawyer

The Independent Children’s Lawyer had varying proposals, depending on findings, for either all or three of the children to live with their mother; for an immediate six month period of no contact between the children and their father and paternal grandmother and thereafter, various possibilities for time and communication including supervision of the father by his mother.

Issues

The issues in this matter are as follows:
a)Whether parental responsibility has been delegated by the father to his mother.
b)Whether the children have been aligned with the father and alienated from the mother deliberately or otherwise.
c)To what extent each of the parents has the capacity to meet the needs of the children with particular reference to:
i)the mental health of the father;
ii)the rude and disrespectful language and behaviour of the children especially the older three;
iii)abuse of alcohol by the mother; and
iv)exposure of the children by the mother to unsuitable partners of hers.
d)Whether there is an unacceptable risk of harm to the children in the care of the father

The evidence

The parties relied upon the following documents:
(a)Amended Initiating Application of Ms O’Boyle (the mother) filed 22 October 2013;
(b)Affidavit of mother filed 21 November 2013;
(c)Affidavit of mother filed 23 December 2013;
(d)Affidavit of Mr G (Mother’s partner) filed 21 January 2014;
(e)Affidavit of Mr K (Psychologist) filed 30 January 2014;
(f)Response of Mr Salt (the father) filed 31 July 2013;
(g)Affidavit of father filed 8 January 2014;
(h)Affidavit of father filed 18 July 2013;
(i)Affidavit of father filed 8 November 2012;
(j)Affidavit of father filed 31 July 2012;
(k)Affidavit of Ms Salt Snr (paternal grandmother) filed 30 January 2014;
(l)Family Report by Ms D, Family Consultant dated 30 May 2013;
(m)Two Memoranda by Family Consultant dated 16 July 2012 and 7 January 2013.

Ms O’Boyle, the mother

The mother presented as a candid and straightforward witness. She is distressed by prolonged separation from her children and has been overwhelmed by their behaviour and events since separation.
The mother was the fulltime carer for all four children until March 2012. The father was regularly away from the family as a fly-in fly-out worker in the resources industry. The mother simply appeared to be unable to comprehend that not only has she lost the care of the children, but on the face of it their affection and respect as well.
I formed the impression that she has been an active and effective mother, often quick tempered, but also loving and affectionate and that the children understood that. She readily made concessions about the extent to which O misses his brothers and understands his conflict of loyalties, not only between his parents, but in relation to those brothers who have, in the mother’s view, bullied him over his wish to live with her.
She predominantly blames the father and his mother for having deliberately undermined her relationship with each of her children and alienated the boys’ affections in respect of the oldest three. I formed the impression that the mother may have under-estimated the impact of some of her own actions in the relationship problems she has with her children. New partners swiftly introduced to the children and the anger that she has directed at the children from time to time.
The mother has not spent any time or even seen her oldest son H, since shortly after separation; that is a period of almost two years. H went to live with his father almost straight away. The mother had left the home with the four children in March 2012. H was back living with his father the following month. Indeed, all of the children began to spend time in both households very soon after separation and returned to school quite quickly.
The parties have barely spoken face to face since. However they have communicated by text. That has been productive for the children to some extent, but has also unfortunately led to the mother expressing some of the hurt and distress she has felt at being separated from her children, at emotionally charged times. Given the opportunity to reconsider in the witness box, she readily conceded that she would not have said what she did to the father and sometimes to the children.
My impression is that the mother has a rather fiery temperament but quickly cools down and puts matters behind her. She probably overestimated the ability of her children to forget some of the things she has said. Likewise, the father has sent threatening and worrying text messages to the mother suggesting threats of harm to the children creating frightened responses. I accept that the mother continues to hold fears for the safety of the children. This is not unrealistic.
The father’s mental health has fluctuated; he has been diagnosed by his consultant psychiatrist Dr E as suffering from many symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD).[5] The father disengaged from psychiatric treatment and re-engaged at different times.
[5]Exhibit 1
In September 2012 the father’s condition deteriorated. He began to drink to excess, experience significant weight loss and was unable to sleep. It is impossible to determine to what extent the father’s symptoms were caused by his injury at work at the end of 2011, his fears for the future and the high state of conflict between himself and the mother.
The father was hospitalised towards the end of 2013 suffering from a major depressive disorder as well as post-traumatic stress.[6]
[6]Letter of Dr E 16/4/2013 - part of Exhibit 3.
Unfortunately the family is fully polarised. The older son H has a strong wish to live with his father and refuses to see his mother at all. The youngest child O has a strong wish to live with his mother, but is pleased to enjoy time in the father’s household. The two middle children have expressed a wish to live with their father and have wanted to spend time with their mother. However their behaviour has been rude and disrespectful and their father has been unwilling or unable to encourage them to spend time with their mother in accordance with the orders.

The mother has been unwilling or unable to forgive the children and to embrace every opportunity that she could to simply spend time with them and create a relaxed and loving atmosphere for them. There were times when the mother was affronted by the children’s behaviour, T and C in particular and was unable to manage their conduct. C has run away from school and from the mother after being collected for periods of time with her. T has left the mother’s care and run away from her, causing her to search for and follow him in the car. I accept that she was torn between appropriate discipline and acceptance of their situation.
The mother is bitterly critical of the paternal grandmother, whom she alleged paid C to run away and offered to pay O to cry and ask to be returned to his father. This is a sad deterioration in the relationship between the mother and her former mother-in-law, with whom the mother stayed as a place of safety immediately after separation in March 2012. The paternal grandmother has moved from assisting the whole family to becoming a guardian and protector for her son. The mother has thus been excluded from the paternal family.
The children have at times accused the mother of “being on drugs” and called her offensive names. On one occasion when T made such statements, the mother told him off and T asked to be returned to his father. I accept that the mother agreed to his request to keep him safe, that is to prevent him from running away.
The mother has taken comfort in adult relationships since separation, but has also come to understand that if her children return to live with her they will be entitled to her undivided attention and should not have to compete to any extent with her current partner.
It was particularly unfortunate for the children in September/October 2013 that there was an incident in the mother’s home where Mr G’s father became both drunk and loud, the police were called by the mother and the children were subsequently removed from the home. I accept the evidence of the mother in her affidavit that if all four children are living with her, she would live separately from her partner Mr G if necessary, to give the children priority.
During the course of her cross-examination the mother moved from attributing all of the children’s reluctance to spend time with her to bribery and alignment by the father and his mother, to conceding that some of her words directed to the children, for instance, “Don’t ever go near me again if you are going to speak like that”, may be part of the reason.
H has moved into adolescence since his parents separated. H regularly fought with his father immediately after separation and would then ring his mother. The mother became critical of H and told him not to come to her house just because he’d had a fight with his father, but rather “just to come if he wanted to be with her.” The mother agreed that she was trying to teach H respect and an understanding that others needed consideration. However the mother did seem to understand that H may have interpreted her response as rejection. The mother said this: “You just say things when emotions are high. You don’t think about it.” That does seem to be an accurate depiction of what has happened between the mother and the older boys on more than one occasion.
Pride has also got in the way of reconciliation between the children and their mother.
In 2012 only O was with the mother at Christmas time. Because the older children did not come to collect their presents, she gave them all to O over the following weeks. Her oral evidence was that it had since been explained to her that “their presents are their presents and to let them have them”.
She had her solicitor write to the father in November 2013, in an attempt to negotiate arrangements for Christmas in good time. The father did not start to respond until 21 December 2013, by which time she had made her own plans.
I do not consider that the mother was indifferent to seeing the children at Christmas. Indeed, I formed the impression that she was intensely hoping to see them and to have a better Christmas than in 2012, when she had not seen them at all. However she became focused on teaching the father to go about things in a more timely and civil way and refused to take up the opportunity which arose at the last minute, to spend time with the children, to exchange gifts and to include them in her Christmas Day.
Although again the mother did not see the three older boys, she did send their presents home with O on Christmas Day, when he went to see his father.
I also have the impression that the mother has defended herself to the children and what she perceives as the father’s negative input about her. She has on more than one occasion, been unable to rise above the children’s words to consider their needs. Having said that, there is no doubt the mother loves all four children very much and wishes to restore relationships with them and the closeness that existed before the explosive separation of the parents two years ago.
The mother has sought help from a psychologist, Mr K, to whom she was referred by her general practitioner, Dr L. She was assessed by Mr K as having deteriorated between August 2012 and June 2013 in every respect, that is, depression, anxiety and stress all registered in the severe range of responses.
By November 2013 after completion of 10 counselling sessions with Mr K, the mother was assessed to have made good progress and significantly the assessment of depression, anxiety and stress had seen a return to normal. Dr K advised that this return indicated “a change in her thinking, feeling and behaviour.”[7] On another scale of psychiatric screening, the mother’s mental health and sense of wellbeing had also “markedly improved.” The mother was assessed to have made good progress and not require further counselling. This was in the context of Mr K retiring from his profession. The oral evidence of the mother was that she was aware of her ability to consult another professional and would do so if she felt the need.
[7]Report of Mr K, Psychologist dated 16/11/2013, p 2
I hold some concern that the mother will struggle to tolerate the level of challenge likely be offered to her as a sole parent. At least in the case of H, if not T and C, that challenge could include running away, explosive language and defiant behaviour. The mother is placing hope in the impact of a psychologist, or external intervention. The positive aspect is that the mother is clearly willing to engage with third parties to help the boys and change some things about herself.

Mr K, Counselling Psychologist

Mr K was not required for cross-examination. His evidence is therefore unchallenged. His assessment contained in the reports annexed to his affidavit was that the mother had made progress over a period of about 15 months, using psych-education, in particular stress management and relaxation therapy to reduce her stress. He considered that the mother was caring more effectively for her own health needs by the conclusion of counselling in November 2013.

Mr G, mother’s partner

Mr G impressed as a serious, straightforward and reliable witness. He is employed in the transport industry and it is clearly important for him to be employed and self-sufficient. Despite the relative newness of the relationship, Mr G has made quite a commitment to the mother. They live together and hope to buy a house together. Mr G has accepted that all or some of his partner’s children may be members of the household and that everything would change as a result. He is willing to change from working night shifts to day shifts so as not to unreasonably expect the children to be quiet when he is sleeping during the afternoon.
He is willing to move from the property at Town M, leaving his father in possession of that property, in order to rent or buy in the Town N area to accommodate the children’s needs to go to school. He is willing to take on the difficult and often thankless task of becoming a step-father to children whose behaviour fluctuates from very good to being well out of control and to accept the challenges that he knows their behaviour will present.

Incident in September 2013 - Mr G Senior

Mr G’s father, a member of the household, had been drinking and was playing loud music in his room. Mr G challenged his father on the conduct. His father apparently did not appreciate the challenge and was aggressive in response.
He got upset, he was getting angry, he was yelling, he raised his voice. I wasn’t going to put up with it. Rather than putting him out, it was walk away or call the police.
Mr G did not hesitate to ring the police to have his father’s behaviour contained.
Mr G has experienced being charged in respect of two assaults in 2002 and 2005. I accept that after those events he has formed the clear policy in respect to conflict of “walk away or call the police.” That he applied this policy to his father is a strong indication that he is not willing to back away from what he considers is right.
I thought that Mr G showed both compassion and strength of character in relation to this incident. He said that he understood that his father had lived alone for 17 years and had lived in an isolated way in a mining house. He also said that there was no problem about drinking in the house and that what had happened on that occasion was a one-off event, but that he would not have that behaviour which was disruptive, both to him because he needed to sleep in anticipation of going to work, and because there were children in the house.
I accept that Mr G has given serious thought to his role in the household if his partner has some or all of her sons living with her. His decision has been to see his role as a supportive one:
… support [the mother] in every way she needs it. They’re not my children, it’s up to [the mother]. She gets 100 per cent of my support.
There is no doubt that Mr G would insist absolutely that the children cease swearing at their mother and in the house at all. It seems likely that the children would accept this rule and have done so. I note also that Mr G spontaneously said in response to what he would do if the children were being rude and disrespectful, “If I need education, I’ll get it.” If I am right in my assessment that Mr G is a genuine person, the boys will accept that Mr G lives by his own rules and become compliant with those rules.
My impression is that Mr G has been both shocked and puzzled by the children. He described them as:
Talking to people rudely, swearing at people, being disrespectful to their mother and needing counselling (in his view) to deal with their anger.
He also said:
At times they were very well behaved and there were no dramas and that both [C] and [T] could change on a mood from being a nice young man to being swearing and back to a nice young man as if nothing had happened.
He wondered if they had not been taught self-control.
Mr G was asked whether O became more disrespectful when the other boys were around. He came quickly to O’s defence. He said that O told them “you can’t talk to mum like that” and that the other boys then laughed at O. I accept this evidence and infer that O has enjoyed a more respectful and disciplined atmosphere and communicated that in his own way through his comments to his brothers. This is a tribute to the mother and even more so, to Mr G.

Mr Salt, the father

The father presented as an evasive and at times untruthful witness. He was unresponsive to questions on many occasions. Despite direction he repeatedly made self-serving statements about matters not the subject of questions. His mood and tone changed from time to time quite quickly.
There are many possible factors which could be contributing factors.

Father hurt at work

The father was injured, although not physically hurt, in Queensland in late 2011 when working inside a mine which collapsed. He had been working week on week off in Queensland. He returned to work after seven days and reported a panic attack on his return to an underground mine.
He has not returned to work since.[8] He received income from WorkCover.
[8]Exhibit 30
On 17 January 2014 the General Medical Assessment Tribunal (Queensland) determined that the father was permanently impaired by Chronic Post Traumatic Stress Disorder, the degree of the impairment being 15 per cent.
On 20 January 2014 a lump sum offer of compensation in the order of $44,000 was made by WorkCover.[9] The father states that he has rejected the offer.
[9]Exhibit 29
Income from WorkCover has ceased. There is now an ongoing civil action for damages. The father receives a Disability Pension. He is uncertain about future employment.

Use of drugs

The father has been dependent on illicit drugs in the past, including marijuana as a young man and synthetic marijuana until very recently. The father said such drugs calmed him and “settled his nerves.” I note that the father told the Tribunal that he was “not taking any illicit medications.” However on his own evidence, he regularly used synthetic marijuana at least until August 2013.
The father takes prescribed anti-depressant medication.

Mental health

On 23 January 1995, aged 20, the father was referred to the Hunter New England Mental Health Service (P Hospital)[10] for:
Self-destructive behaviour, suicidal ideation and assaulting his mother and sister tonight.
He was intoxicated and reported to have stated to his family that he was going to kill himself. His mother called police.
He reported being depressed for the previous 12 months and having prepared for and/or attempted suicide three times during that period.
He reported that as a young boy he and a school friend used to contemplate suicide.
[10]Exhibit 19
The father initially said he was unable to remember this admission to hospital. After a few seconds he gave quite a dramatic rendition of suddenly remembering the event and said that his employer had given him a bottle of bourbon for Christmas, which he drank. The tenor of his evidence was to attribute blame to his employer for the consequences.
He denied any memory of lashing out at his mother, or attacking his (older) sister with pliers. He was unable to remember being suicidal up to eight times a day, as was recorded in the notes gathered at the time of his admission. He was unable to remember prior depression and further did not believe that it had happened. The notes record that he had reported alcohol, marijuana and amphetamine use. The father said he did not remember amphetamine use and agreed that anyone might think that he would remember such a thing, but he did not.
It is possible that the father’s present condition of PTSD has affected his long term memory to this extent. However my impression was that the father did remember and was lying about having forgotten.
Either way, this incident supports the proposition that the father has suffered with his mental health long before his accident at work.
The mother says that the father “first scared her” in 2002.[11] She described the father, drunk and angry, ringing his mother and demanding she come to the house. She came. There was then a horrible scene where the father began yelling at his mother and blaming her for having arranged his admission to P Hospital.
[11]Affidavit of Mother filed 21/11/2013, pars 21-26
The mother referred to this admission happening “several years previously and before I knew [the father].” The incident undoubtedly relates to the admission in 1995.
The father is described as producing a knife, holding it to his mother’s throat and threatening to kill her. H, then aged two and a half years, was present and crying. The mother says this:
I recall [the paternal grandmother] saying to [the father] ‘please don’t do this in front of [H]’.
When the father calmed down his mother left and the father is reported to have thrown shoes and other objects at her as she walked to her car.
This final gesture although dangerous, was also childish. It is consistent with evidence of the father swearing at and blaming his mother, but also demanding her immediate attention when he is unhappy.
Further it is consistent with evidence of the paternal grandmother that she is always available when needed by a member of her family and to use the words of the father and his mother that the father likes to “push her buttons”.
This incident confirms my view that the father is unlikely to have forgotten the original admission.
In 2004 the mother says, unchallenged in cross examination, that the father grabbed her by the hair and smashed her face into the corner of a wall in the home. The police attended, an Apprehended Violence Order (AVO) was issued, and the father left the family home for six months. The parties reconciled, the mother says after the father promised a fresh start.
In January 2012 the mother suggested to the father that he needed hospitalisation. It was an objectively reasonable decision given the father’s very recent traumatic accident at work which had left him in an anxious state. The father rejected the suggestion and continues to be resentful that the mother was “trying to put him into a mental hospital”.
Ironically he gave evidence that his admission by his psychiatrist to Q Hospital in April 2013 was “the beginning of my recovery” and that his admission to J Hospital in August of that year transformed his life by teaching him about PTSD and how to cope with it. It is compelling evidence of the need the father had for treatment in hospital.

Separation

When the parties separated in March 2012 events were as follows.
The father was drunk. He wrestled with H who was accidentally injured. H punched his father in the face. The father chased him upstairs and hit him on the hand. H locked himself in his room. The father began kicking his door. The mother approached the father. The father then issued a threat to the mother, “You’ve got 24 hours to get out of this house or I’ll kill you”, which he repeated. The mother, her brother and the four children then left the home. The mother says she had real fears for the children’s and her own safety. I accept that she did.
The father conceded that the mother may have been fearful. He went on to say, “I don’t know why, she always talked to me that way too”.
I consider it likely that both parties did use disrespectful and abusive language to each other regularly. The father uses foul, disrespectful language towards his mother, and all of the children now do the same in relation to their own mother. However, I also consider that the father under-estimated the change in himself after his accident; that he had become frightening to the mother in a way that he had not previously been.
In mid-April 2012 the mother decided against reconciliation. The father left the family home and took H with him to live in the home of the paternal grandmother.
On 22 April 2012 the police came to the mother’s home and told her they had been contacted by the father’s psychiatrist. The doctor had told the police that the father had reported to him that he had firearms hidden on her property. In his oral evidence the father said he had lied to his psychiatrist about that. If that latter evidence is true, one explanation is that he wanted to manipulate the situation to cause the mother to be frightened. There are other possible explanations none of which put the father in a good light.
In mid-July 2012 a final AVO was made.
In December 2012 the father attempted suicide. He subsequently reported to Dr A (Queensland WorkCover) that on that occasion he “was going to gas himself with a car but was not able to as it was a diesel vehicle”.
The mother’s view, which the father does not share, is that the father has suffered significant mental health issues over the whole of the time of their relationship which have become worse, and particularly after his accident. The evidence, including the father’s own evidence, suggests that that is right.

Looking back on himself, the father says that since he was admitted for therapy to J Hospital for five weeks commencing on 31 July 2013, everything has been different and better for him. He considers himself to a great degree cured of his previous high levels of distress, severe depression, suicidal thoughts and abusive drugs and alcohol. There is no evidence from medical practitioners to support his view, but it does seem that the father learned at J Hospital some strategies for making his own life easier:
I was a wreck before I went to [J Hospital].
I was two different people from when I went in until when I went out.
I’ve been taught grounding techniques and triggers. That’s why it was so great down there.
What he does not appear to understand is what he was like after the accident and before August 2013, that is, how difficult it was to live with him in his symptomatic state, un-insightful about how to manage himself or the impact he was having.
It is particularly difficult to interpret the father’s evidence given the lack of current medical evidence from his treating practitioners, particularly Dr E his psychiatrist, who he has consulted since the accident and his psychologist Ms F, who he has also consulted.
Material has been available on subpoena from J Hospital and Dr E’s records. However there is no evidence about the current state of the father’s mental health, the diagnosis of his current illnesses, if any, and the prognosis now and when the litigation over the compensation for his injuries is complete. I am also conscious that these legal proceedings are stressful for the father, just as the Queensland legal proceedings in relation to his accident are stressful.
My observation is that whatever the cause the father was an evasive and unreliable witness. He conceded having lied to Dr E and lied again on oath in his affidavit. It is a matter of serious concern. In particular, the father asserted he had been completely open and honest with his psychiatrist (Dr E):
I have told him about my suicidal feelings following the accident and I told him about firearms I had at the property at [Town I]. I have been receiving treatment, including attending my psychiatrist weekly and I am working through the problem. At no stage have I made any threats to my children or exposed them to my problems.[12]
[12]Affidavit of Father filed 30/07/2012, par 20
In the witness box the father said that that he had lied in two ways; that he had told Dr E about having firearms and that he had also told Dr E that he had handed over a gun to his father. That that had been a lie told to the psychiatrist and that his statement in his affidavit in July 2012 had also been a lie, because he had never had firearms. I am not at all persuaded that the father has not had firearms in the past, or that he might have firearms now. I am persuaded that he is prepared to say whatever it takes to get something he wants.
Again in his affidavit, the father denied the use of synthetic drugs, Kronic, synthetic marijuana and other similar substances. It was a pointless exercise and time consuming. Ultimately the father conceded that he had regularly used once or twice a week synthetic drugs with an effect similar to marijuana, from the time of his accident until about three weeks into his treatment at J Hospital, a period of about 20 months. He seemed completely unable to simply make a concession.
For instance, it was established that the father had left the hospital in August 2013 on the first opportunity he was able to go shopping and had bought synthetic drugs which he had “divvied up into three pouches.” He had also bought three pipes with which to smoke the drugs. He then hid them. Subsequently he said he handed over the drugs at the hospital and swore off them after completing a drug and alcohol abuse course. He was also affected by being taken to see patients who were apparently severely brain damaged from the use of drugs.
The father could readily have given that evidence in an affidavit, especially as the father believed that up until approximately the time he gave the synthetic drugs up, they were not illegal. The evidence that the father gave about that drug use was focused entirely on himself, so in answer to the question “What is the effect of the synthetic drugs?” he said it allowed his mind to ease up a little and helped to calm him down. At no time did the father reflect on whether or not he was more or less available to the children at times when he was affected by his drug use. The mother had asserted that the father used both marijuana and synthetic marijuana throughout the relationship. It certainly seems on his own evidence, that the father smoked marijuana heavily between age 18 and 22. In his affidavit sworn 17 July 2013, he denied:
… that I use Kronic or any other non-prescription drugs and I used my medication as prescribed and I do not use any non-prescription drugs.[13]
[13]Affidavit of Father filed 30/07/2013, pars 24, 25
The mother also asserted that the father’s mother would bring him synthetic drugs at his direction. The father conceded that that was the case; that he gave his mother the money, and despite her opposition to him using it, she would buy the drugs and bring them to him.
The father gave unrealistic answers as to why he had hidden the synthetic drugs he had purchased when he was in hospital in August 2013. He said he had not thought of telling the hospital that he had the drugs; nor could he provide an explanation as to why he had chosen to hide the drugs on the golf course.
My overall impression is that the father ruminates about events in his life, most particularly the accident in December 2011, but also separation and past incidents which have distressed him. As a result, it seems likely that he is emotionally unavailable to the children most of the time, although physically present.

Father’s relationship with his own mother

The father’s relationship with his mother seems to be an intense and hostile one, as well as a dependent and loving one.
In September 2012 the father sent texts to his mother where he said, amongst other things:
I don’t think it’s safe here for him ([T]) as I want people to hurt like me.[14]
His mother remonstrated with him and was concerned enough to contact H to tell him not to go home, she would collect him because:
Dad had a bad night and is still off the planet.
[14]Affidavit of Mother filed ##/11/2013, Annexure ‘A’
When asked about the occasion the response of the father was instructive. He said he had been “pushing his mother’s buttons” and “I wanted her to sit with me, I felt poorly.” The tone and pitch of the father’s voice as he said those words was that of a young child. It appeared to me that he was retrospectively feeling sorry for himself and needy.
The paternal grandmother comes to the father’s home every day to see that he is well and to help get the children to school. She acts on his behalf in relation to doctors, schools and in correspondence with the mother’s lawyers. The father concedes he regularly gets angry with his mother.
In August 2013 he was angry with her because he wanted to go back home and leave J Hospital. He conceded that he might have written a note to his mother and left it in the car, which said:
You fucking cunt mum you’ve wrecked my life, I’m going home.
All the children were present when the father was sitting in the car and refusing to return to the hospital until he was talked into it by a nurse after 30 minutes. The father described C becoming distressed, swearing and “he kept coming up to the car. [C] kicked his mobile phone across the road”.
In responding to questions about the note the father was quick to exonerate himself, “I was very upset at that time”.
It is one of many occasions when the father was focused entirely on his own distress and not on the impact he was having on those he loved, most particularly his children.

Conduct of father

The father was inclined to blame the condition PTSD for any poor conduct. He agreed that he had used rude language towards his mother when they were fighting and that the boys “could have” heard him speak like that.
The father conceded that it was not good for the children to hear their father speaking so abusively to his own mother, but was matter of fact:
No, but it doesn’t happen every day. When I’m struggling under PTSD I say things I don’t mean.
He agreed that as well as “cunt” he had called his mother a “slut” but denied calling her a “bitch.” This conduct and his own reaction to his conduct seems profoundly immature. He complained to a nurse on 19 August 2013, his mother had called him a “fucking liar” when he told her he had given up smoking drugs. Again he said he’d got upset about it, as a child does when angry with a parent.
Importantly the father was asked about a statement he had made on 29 August 2013 in J Hospital. The statement was his own that he had said “unkind things to his boys.” At first he said he “couldn’t remember saying that”, nor could he remember ever having actually said unkind things to his boys. He then agreed that he had been feeling guilty about unkind things, but couldn’t remember what they were. It was an absurd performance and dishonest. The only example that he could give about an unkind thing that he had done was if a child had gone without an ice block; that would have been unkind.
In the same rather immature way, the father said that the reason he had not told his psychiatrist Dr E about his use of synthetic drugs, was because the drugs were not illegal. He simply has not taken a mature responsible approach to his own rehabilitation. That may be a function of mental illness that he is presently suffering. I am not in a sufficiently well informed position to know.
On Father’s Day, 1 September 2013, the father was given day release from hospital. The report in the notes is that the father “lost it.” When asked what happened he said:
He had had a haircut on the way home and was very anxious, being the first time with his boys. He went out with them and rode bikes and had to be back by 10.00 pm that night. It was fairly overwhelming going home.
The father agreed that it was recommended to him that he have help when he returned home to his family from Family Support Services. Considering the repeated statements by the father about just how significant the attendance at J Hospital had been for him and how positive his reaction to recommendation for Family Support Services is surprising. He followed up on none of the recommendations.
His explanation was that on the first contact by Support Services he told the caller that he had another appointment (with Dr E). He did not then ring Support Services. He said his mother had spoken to them, but she had not told him what she said.
His final statement on this topic was informative, “We were coping very well with the boys so …..” I infer from this unfinished remark that as soon as the father was home, he regarded himself as being somehow changed or cured and rejected the advice that he had had. This is a most significant matter.
The father came home from hospital to the fulltime care of his four children, He had committed himself to giving up the use of all drugs for the first time in his adult life, he knew that days before he had felt overwhelmed on spending a whole day on day release with his children, and he had begun to understand that there were things he needed to do differently. Despite that, he rejected the need for external support which was readily available.
The father said that the hospital had given him “a lot of pamphlets” in relation to the need for him to be more patient with his children. He said he could not remember what his difficulties with his children had been, nor could he remember the psychological impact of his difficulties on his children.
It may be that the father did develop some insight in the hospital into the impact on his children of the changes in their father, the separation of their parents and the electrifying animosity between the two families. It may be that he did not develop any insight at all in that regard and that all insights developed were into himself as an individual and not as a father.
The father’s memory is also a matter of significant concern. I simply do not know if the father was lying, as he sometimes did during the course of his evidence, or whether he was unable to remember those events as a result of his PTSD, or he was calculating the best answers to meet the case.
Whatever the cause is he is an unreliable witness. The father was unable to remember an incident in September 2004, when he was intoxicated and the police were called. The proposition was put to him that he went to the garage and said, “I’ve got a rifle and a sawn-off.” He said he did not believe he would have said that. He agreed the police had come on a number of occasions during the course of the relationship.
The explanation he offered for telling Dr E in May 2012 that he had put a gun in his mouth was that “he was lying to get help, but that was not in fact what had happened.” The father said he did not know why he had said that.
It is of the utmost concern in terms of the safety of the children. He agreed that he had told Dr E that he had tried to commit suicide by carbon monoxide poisoning and that the attempt had failed because the wrong fuel for the purpose of dying was in the vehicle. He agreed that his psychiatrist had always worried about him as a suicide risk. Given the evidence, there is a heightened risk for the father of suicidal thoughts and attempts with consequential risk of harm for the children if they remain in his care.
The father’s evidence is that WorkCover has now cut him off from covering medical expenses and that accordingly he has stopped consulting Dr E. His general practitioner has arranged a mental health plan for 10 further sessions with Ms F, psychologist, which has not yet occurred.

Incident with Psychologist

In September 2012 Ms F was highly concerned about the father’s chaotic presentation and his report that he had been aggressive with others. The father commented on that as “having been a little bit impatient with others when he was forced to wait.” He agreed that he had run away from the session, despite Ms F’s advice that he should wait for a little while.
He also agreed that he had phoned his mother to tell her that he had left the session and that his mother “might have” spoken to Ms F to criticise her for calling the police through her concern about the father’s safety.
I am not in a position to dismiss the evidence about suicidal thoughts and actions by the father. Quite the contrary. There is evidence from the report of WorkCover specialist Dr A in Queensland[15] that at that time the father was suffering a major depressive disorder, he was a risk to his children, and could relapse.
[15]Exhibit 23
In July 2013, before the father had his first hearing in the Tribunal in Queensland, he agreed that he had attempted, or at least thought about suicide. He denied that he had put a rope around his neck, but agreed that he had sat in a room, the en suite bathroom of his bedroom, that he was going to try to commit suicide, “but I didn’t.” The children were at home, said to be outside riding their bikes. He felt a high level of distress coming on and thought he would commit suicide. There is no basis for dismissing the risk associated with the father’s state of mind on that occasion or generally.

Hospitalisation in April 2013

In April 2013 the father had a drum of fuel on the tiles just outside his lounge room. He said his mother had dropped the fuel off to him and left it there and that he simply had not moved to take it to the shed. The proposal was put to him that he had a lighter and toilet paper and had been asking O to help him; “Help me, help me, help me.” He denied trying to tie himself to the drum of fuel. However he agreed that his mother had come to the house and that he had been admitted to the Mental Health Unit at Q Hospital on that occasion.
The father was clearly in a very bad state of mind and health. He presented to Dr E as “tired, untidy, distressed and not coping.” Dr E thought he was a serious risk of suicide. The father did not want to go to Q Hospital Mental Health Unit, “I didn’t want to leave my boys.” He agreed that he would have been sad without them, just as they would have been sad without him. He agreed that he drew great comfort from his children, “I love my boys” and that they picked up his spirits.
I conclude that he was unable to focus on their need for a healthy father and to act on that in order to obtain all the help he could to improve his state of mind. I further conclude that the father relies on his children for emotional support and they know that.

Education and sport

The father is intensely focused on one sporting activity of his children, particularly the older two boys and most particularly H. They compete in Sport S events and have been very successful. The father has taken all of the children to Town R, Qld to Sport S events in 2012 and 2013. He has allowed the children to miss a great deal of school. His evidence makes it clear that their sporting success in his view is more significant than regular attendance at school.
The mother does not agree and he disregards her view. Indeed, the father has made no attempt to include the mother in decision making about the children at all. He changed H’s school and decided where C would go to high school without reference to the mother.

Attitude to the mother

The father is angrily dismissive of the mother and of her role in the children’s lives. She had been their fulltime carer from the birth of each of them. He did not however concede the significance of her role at all. When asked whether he was pleased that the mother had been available to care for the children so that he could do his work in the resources industry, he said in a bitter tone, “I had to go, she didn’t work and I had to pay the bills”.
The father said he thought T was at risk in the mother’s household, despite having consented to an order that T live with his mother in July 2013. His proposal put before the Court on the first day of this hearing was that there would be periods of time between the children and their mother with the father present and with the children in his sight so that they “would know they won’t be alone with their mother”.
The father is critical of the mother’s partner Mr G, although he has not met him. If it is the case that one or more of the children have told him that they do not feel safe with Mr G, the father has not only accepted that information, but it seems to me has seized it as further evidence of why the children should not spend any significant time in their mother’s household at all.
Further he has not been compliant with orders. He did not arrange for a referral for H to see a psychologist as he had consented to do. His explanation was twofold that he did not think H needed the counselling and that H was a 14 year old and that he was a big tall heavy set boy and he could not get him to go. I do not accept either explanation to any extent. I consider it likely that the father is warmly supportive of H doing whatever he wants to, if it can be interpreted as criticism of the mother.
The father repeatedly referred to the children as “my boys” and when challenged that in fact the children were “our boys” including both their parents, the father did not accept it. He said “they would be our boys if she put the work in.” The father showed bitter anger towards the mother, perhaps still over the separation. There is no evidence that he has formed any new relationship, nor intends to.
It is probable that the atmosphere in the father’s home is one of mocking hostility towards the mother and that the children conceal the positive feelings they continue to hold for her. Those positive feelings are revealed by the fact that they have from time to time sent text messages seeking her support and in some of the comments they made to the family consultant.

H said that he knew his father does not like the mother, “because [C] says stuff to [T] about her and dad doesn’t stop him and just agrees.” He also expressed a view that his brothers should be able to decide where they wanted to stay. I infer that H knows that one or more of his brothers would like to be living with their mother.
In his interview with the Family Consultant C mostly referred to his mother using her Christian name, sometimes as mum.[16] He complained about his mother because she did not attend on a day of a Sport S event, where clearly he had hoped she would and that other than some very minor matters. He expressed the view that his father did not think his mother was a nice person, nor a nice mum.[17] He also felt that his father did not think it was a good idea to spend time with his mum. C too expressed a view about his siblings. He said he thought T should spend time with their mother, “Yes because he loves her more than dad”.[18]
[16] Family Report dated 30 May 2013, par 67
[17]Family Report dated 30 May 2013, par 72
[18]Family Report dated 30 May 2013 par 74
T said he did not like his mother because of what she was doing. He agreed that O should go and live with his mother because “he liked her”.
O is sad and experiencing the pain of being criticised by his brothers for living with their mother. He wanted to spend lots of time living with both his parents, but if he had to choose, with his mother. It is obvious that the father has not been encouraging of the older children’s relationship with their mother and that they have been put by both parents into tremendous loyalty conflicts.
H has not seen his mother for almost two years. When asked what the bad things were for H by not having any relationship with his mother at all; the father answered facetiously:
I can’t say that he hasn’t got a woman in his life because he’s got a nice girlfriend now, and my mum.
He then went on:
… the longer she leaves it the worse it gets. She said some nasty things to him. She went to [a Sport S event] and was drunk.
In fact the father did not respond at all to the question of potential disadvantage for H in having no relationship with his mother. Instead he related an incident where he had been able to parent H from a distance, that is, from J Hospital, by talking him through some distress and getting him to continue on with a particular Sport S event. This response confirmed my view that the father’s focus is on himself and his own need for the children and that he has not reflected on the significance of the children growing up with no or minimal relationship with their mother. It also reveals the father is competing for the children’s loyalty.
The father did say that he had changed his position away from wanting no time at all between the children and their mother for this reason, “Because I love my mum and I know the boys love their mum too”.
He said that he had not known that in May 2013. Its seems extraordinary, either that the father had not known before May 2013 that the children loved their mother, or that he did know it and was prepared to make such a statement. However, when it was pointed out to the father that H’s relationship with his mother had not improved at all, the father’s response was, “No, [the mother] has made no effort”.
The father quite angrily rejected the idea that he had aligned the children with his position. I do not consider that the father has deep insight into his actions, but his presentation was one of gleeful pleasure in the extent to which he and the four children managed without the mother, “I’m their rock and they are my rock”.
My clear impression is that the emotional support has flowed from the children to their father. The father was asked whether the boys looked after him. He said that every morning there was a boy sleeping at the end of his bed, “I think it’s because they like to be close to me.” Again, the father’s tone and pitch was quite childish and self-focused. He went on to say that between midnight and 1.00 am is the time when:
I wake up and yell and that the boys come in to say, ‘Are you right dad?’ that they check on him from time to time and that in the morning there is always one boy in a doona at the foot of the bed.
Clearly one or more of the boys make the assessment that the father is not doing well from time to time, because the father agreed that sometimes one of them rings his mother who then rings Dr E “to see if he is permitted to take more medicine and then he does.” The scene painted is of everybody taking responsibility for the father’s health and wellbeing, other than himself. The father agreed that he still yells at the children:
… but only if I’m having a really really bad day, but I don’t have too many of them now.
The father denied any knowledge of T getting headaches or having toileting problems. He was also asked about T’s school reports and decline in his conduct, but the father’s response indicated that he was less concerned about attendance at school than ensuring exemptions for all children in order to attend the Sport S events in Town R, Qld.
In a similar vein, the father was asked about C’s use of T’s IPad to send sexual messages, which suggested C and his friend might be watching pornography on the internet. When asked whether he felt he should be monitoring C and the others on the internet, the father said, “No [the mother] got them onto it.” Whilst he agreed that C could be victimised by a paedophile looking for young people in chat rooms, he said he would rather that the boys have nothing to do with Facebook. In my view it was quite an unrealistic statement given the ages of the children and the immersion of young people in social media.
The father himself has a Facebook page. Of some significance is that at first he lied about that, “No I initially had a page but deactivated it” and then agreed that a matter of days before, he had been posting stories about how much money he had been awarded in the Queensland WorkCover proceedings, “LOL only got a few mill.” He had two reasons for doing so; one was:
I was stirring someone because they hate [H] at the [Sport S events]. This lady (the mother of another boy) hates him with a passion
and the second was:
That person being a friend of the mother might pass the information onto the mother.
Soon flushed out [the mother] she wanted half of it.
It was a gratuitous remark, spiteful and immature.
At the conclusion of the father’s evidence, I had the impression that he had enjoyed being the centre of the Court’s attention. However I certainly cannot and do not dismiss the conduct of the father merely attention seeking especially given the evidence of episodic bouts of serious mental ill health as recently as November 2013.

Ms Salt Senior, the paternal grandmother

Ms Salt Snr is aged 63 and is a school counsellor. She works in the general area where her grandchildren attend school. From the outset the paternal grandmother was defensive of her son.
Q:           To your observation, has he suffered symptoms of PTSD?
A:           Not really. I think he’s coped well.
Q:           What symptoms have you observed?
A:Nightmares, stress when he relives the mine incident, sweating in sleep, feeling very anxious.
Q            ?
A:           Not at all.
Q:           Threaten his children?
A:           Not to my knowledge.
Q:           Threaten harm to any of his children?
A:           No.
When asked about how many suicide attempts there had been by the father over the years, the paternal grandmother’s response was “not many.” She was pressed:
Q: Was it more than one?
A: Yes.
She then went on to say that she had seen her son say he was going to commit suicide, but she had never seen him try and also that she had talked to him as a psychologist would about the need to stay alive.
The paternal grandmother gave evidence that she studied psychology as a major subject in her science degree and had a post-graduate diploma in psychology. She has never practised as a psychologist, nor registered, the reason for that being that she intended to always work for the Education Department and apparently she has.
On one occasion the paternal grandmother had advised her son to take T to his paternal grandfather where she would pick him up when she returned from where she was. She also advised that she would collect H from his friend’s house. The father was asking for the mother’s address so he could drop the children there. The paternal grandmother was resistant to the children being dropped off with the mother. There was this exchange between the father and his mother:
Father:Do you think you thinking should put [T] out of his problems?
PGM:No, don’t even talk like that, [T] is doing well. The best he has ever been.
Father:I want people to hurt like me. I wouldn’t want to live like that.
PGM:He is fine, he didn’t want to go to mum’s as her internet is slow.
Father:I don’t think it’s safe here for him as I want people to hurt like me.
The final response from the paternal grandmother is illuminating and succinct:
I have to turn phone off now as games starting. Take [T] to your dad’s. Ring [Mr U] if you need help. I will be back about five o’clock, see you then and if you want to go to hospital then I drive you.
The paternal grandmother said that she knew that her son was “just pushing my buttons wanting attention.” She further said that she knew T was safe and that her son would never hurt his children. “It was just attention seeking and just pushing her buttons”.
This is consistent with the material in the text. The paternal grandmother was telling her son what to do in the best interests of the children, that is that he should take T to the home of his paternal grandfather and that she would go around and collect other children.
The paternal grandmother was adamant that her son was possibly lying if he had given evidence that he had tried to attempt suicide, and that he exaggerated in relation to his PTSD. There is support, hostility and dismissiveness in her attitude.
The paternal grandmother may be right that her son is a lying, exaggerating, self-centred person. If he is, he is a poor role model for his children with limited capacity to meet their needs due to excessive focus on himself. If she is not right, the children are at risk of their father committing suicide and further that that might happen when they are in his care. Either way, the risk of harm is unacceptable.
September 2012 was a very difficult time for the father. On 7 September he missed an appointment with his psychologist, Ms F. On the previous appointment he had become agitated and wanted to go home and had been crying uncontrollably. His psychologist became concerned about him and spoke about admission to hospital. The paternal grandmother was contacted by the psychologist. She told Ms F that she was not concerned about him and that although he had not come home she would not be worried unless and until he did not appear at the children’s schools that afternoon to pick them up. I am left with a very clear impression that she thought that he was both lying and exaggerating to his psychologist for attention.
The paternal grandmother invests considerable time every day into her relationship with each of her grandchildren, including her daughter’s two children. I accept her evidence that she responds to any request for help from any member of her family immediately. I do not doubt her love for her grandchildren.
However in the case of the father, because there are deficiencies in his capacity to care for his children through mental health, his personality, his physical health and his availability at times, the paternal grandmother has taken control of the family and become an advocate for her son.
In July 2012 the Family Consultant reported that when she interviewed the family, the paternal grandmother became upset that O had already left with his mother. She says this:
The father made a few comments, however the paternal grandmother continually made comments as to the unfairness of the situation until she was advised that it would not be discussed further in front of the children and that such behaviour was inappropriate.
The paternal grandmother agreed that she had commented on what she perceived as unfairness, which was that the father:
.. did not get to see [O] on that occasion. It would have been nice to have seen him, that’s all.
This was an entirely unnecessary intrusion by the paternal grandmother into the process. Her training and experience as a school counsellor would certainly have made her aware that it would not be helpful to the children to hear her complaining about the process to the Family Consultant. It seems to me that the paternal grandmother “goes in to bat” for her son and the children, as if it was her responsibility to ensure their safety and happiness.
In one way this is entirely admirable, reflecting her level of commitment. The difficulty is that the paternal grandmother appears to have drawn a line around her son and his children, which excludes their mother, who has become somebody that the paternal grandmother feels she has to contend with in a competitive way.
One example of this is when the father went into J Hospital on 31 July 2013 for a period of about five weeks. The three younger children were by interim consent order to live with the mother. The paternal grandmother said that:
The first night [C] and [O] stayed with their mother but that [T] stayed with his mother until I picked him up. I got a message to bring the Xbox so I did. I pulled into the driveway, [T] came out crying and [the mother] told me to take him.
T had sent a message to his grandmother about his Xbox. She drove straight over without reference to the mother with the Xbox in the car and when the child got into the car, took him back. The mother says that the grandmother just arrived to collect the children.[19] Whether or not the mother told her to take him, it is quite clear that the direct communication and decision making was between T and his grandmother.
[19]Affidavit of Mother filed 23/12/2013, par 122
The paternal grandmother said she was aware of the orders saying the children were to live with the mother, but the mother had changed them. I take this to be a reference to the fact that although the children spent the majority of the time with the paternal grandmother, the mother had not made any contravention application.
Concerningly, the paternal grandmother went on to say that she had organised football for the boys at this same period of time; that H wouldn’t go to the football and that T didn’t want to go and she could not get him in the car. The paternal grandmother agreed that she had not been able to get him into the car because of who was going to be there. This was a reference to the mother, but in the end the mother came to the football with T.
Not only was there no genuine cooperation by the paternal grandmother with the mother, she simply failed to acknowledge that the mother was the parent, that the mother had parental responsibility and that the orders were in favour of the mother.
The paternal grandmother saw herself as responsible and in charge on behalf of her son. In fact her evidence was that she had on one admission sought legal advice about the situation for when her son was in hospital, and had had him write a note to say that she had his parental responsibility while he was there. This was to totally ignore the parental responsibility of the mother. It is a dominant feature of the case and must have affected the views of all of the children about where authority lay in the family.
Unsurprisingly the paternal grandmother was asked about the series of text messages between herself and her son in September 2012.[20] The mother found the text messages on T’s phone which the father had used to communicate with his mother.
[20]Affidavit of Mother filed 21/11/2013, Annexure ‘M’
The paternal grandmother contacted her son’s psychologist in something of an anxious state herself, saying to the psychologist, “It’s all over the scanners”, a reference to police having been notified that the father was a person of concern because of his state of mind. She said further, “unless you call off the police it will make [the father] worse.” The explanation given was that the paternal grandmother did not want her son harassed or distressed.
It may be that she was protecting him; it may be that she feared what his reaction to the arrival of the police at the home would be. Concerningly she was clear that when he is upset, the father does not answer the phone. Hence in the father’s care, the children must have learned that if there is any kind of emergency; or even ordinary communication, the person they need to contact is their paternal grandmother.
The paternal grandmother agreed with her son’s assertion that he has been significantly improved since being discharged from hospital early in September 2013, with the occasional bad day. One of those bad days was 4 November 2013, when the father became anxious. The apparent cause was that the mother had announced that she was going to Thailand for three weeks and was proposing that O would stay with his father during that time. Further, that one of the boys had previously wanted to participate in a competition overseas and had not been permitted to go. It is hard to see why either of these matters could have triggered such a response in the father.
In any event, his mother phoned Dr E, to enquire about alteration to his medication. She was advised that her son should have a voluntary admission to Q Hospital. The doctor wrote up a referral letter. Further the doctor said that if the admission was not voluntary, it would then become involuntary.[21] In fact the father did not go to hospital; he did not want to go.
[21]Exhibit 21
I conclude that the father is still resistant to professional advice about hospitalisation, despite his positive experience at J Hospital.

Attendance at school

The paternal grandmother conceded that she knew there had been significant absences from school in 2012 and 2013, particularly for H, but also for C. She said that they thought H had had Chronic Fatigue Syndrome. There had been no diagnosis and his sickness was attributed to rapid growth.
None of this information was communicated to the mother. Just as her son had, the paternal grandmother referred to the significance of H being “an elite athlete” which required him to travel around Australia to compete. H’s school records indicate that he could be a good student, but in most subjects fails to complete work and to follow through. Given the level of his absence, it is hardly surprising.[22]
[22]Exhibit 36
C too has had significant absences. There was an incident at school where C was required to have time out at home, possibly a suspension. It was the paternal grandmother who attended the school and spoke to the Principal. The explanation for that was that the father had to travel with H to a Sport S event. The priority given to H’s competitive Sport S events appears to be absolute in the father’s household.
H is in a uniquely difficult position. He has lived with his father since separation. He has spent no time with his mother. He was 12 at the time of separation. He missed 78 days school in 2012 and at least 58 days in 2013. An order was made by consent between the parents for H to see a psychologist.[23] That simply did not happen. The paternal grandmother said this: “I know they asked, but [H] saw the school counsellor.” It is the same dismissive attitude to Court orders as revealed by the father.
[23]Interim Consent Orders, FM Myers dated 31/07/2012
Some of the comments made by the children in the family report were repeated to the paternal grandmother; for instance that H had said about his father: “He’s alright; he’s just a bit crazy in the head.[24] He yells random stuff that makes no sense”.
[24]Family Report dated 30/05/2013, par 61

The paternal grandmother smiled in response to these comments and appeared to be amused by them.
She said she was surprised that H had said about his father: “He doesn’t care where we go as long as we leave him alone on bad days”.
H had also said that the children rang their grandmother and she came down and made the father take his tablets. The paternal grandmother denied this, although she agreed that they did ring her on occasions, but not for that purpose. I do not accept that evidence. I consider that the paternal grandmother is vigilant about medication for her son.
C said that if his father forgets to take his medication, “He has a breakdown.” “He yells at us and says get to bed.” Again the paternal grandmother reacted by smiling, shaking her head and appearing to be amused. She gave a small laugh.
T said about his father, “If he doesn’t take a tablet he yells.” He also said that his father screamed and cried in his sleep. T described himself as feeling “normal and casual when this is happening.” He said it didn’t bother him “cause I’m used to it”.
The paternal grandmother rejected the proposition that her son screamed and cried in his sleep, although she acknowledged he had nightmares. She did not attempt to validate the comments made by her grandsons. In my view, she was minimising what the children were saying in a way that was protective of her son. It gives rise to the inference that the father would be given priority over the children by his mother. However, whilst that was true during these proceedings, I consider that the paternal grandmother is protective towards her grandchildren.

The law

The objects of the Act in relation to parenting Orders are to ensure that :
a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests
b)     To protect children from physical and psychological harm
c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential
d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

As a profoundly complicating factor, the father had an accident at work about three months before separation, suffered mental illness, subsequently diagnosed as PTSD, with relapse of depressive illness. The children must have been bewildered by how their lives had changed and how each of their parents were behaving. Nevertheless, the years up until March 2012 have put in place the relationship between the children and each of their parents.
The willingness of the boys to look after their father, to check on his welfare and to forgive him for erratic and unreasonable conduct is a sign of that enduring relationship.
The fact that the boys enjoyed holiday time with their mother in a week away in September 2013, after a long period of rude and resistant conduct on their part, is also a sign of the historical depth of their relationship with their mother

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence NOTING that this aspect takes priority over ss 2(a)

There is a need to protect these children from psychological harm. The father has been mentally ill and had psychological problems since his accident in December 2011. His behaviour since that time has been erratic and hard to interpret. It may be that he has been mentally ill, suicidal, depressed and unable to cope. Certainly his psychiatrist Dr E, and his psychologist Ms F, have been concerned about him and the former has recommended successfully admission to hospital. The latter has been concerned to monitor the father when he has appeared to be uncontrollably distressed.
Alternatively the father may have been attention seeking to an extreme degree to draw attention and receive support and comfort from others, most particularly his mother. If that is the case, that behaviour may or may not be as a result of mental illness or psychological disturbance. I am unable to make a finding about that and I do not have evidence of the current psychiatric and psychological health of the father, nor of a prognosis.
The children have been exposed to the signs and symptoms of the father’s PTSD, his nightmares, fears and tendency to withdraw. Some or all of them have been present when he has talked about suicide. He used T’s phone in September 2012 to send worrying messages about his desire to have people hurt as he did and to deliver all the children to their mother before he left with an intention of not coming back.
To some extent they have become used to his behaviour, but the evidence of the boys coming to check on their father at night and one or more of them sleeping at the end of the bed, suggests that they consider that they are responsible, in combination with their paternal grandmother, for looking after their father. The father shares that view “that my boys look after me, I am their rock and they are mine.” I am not satisfied that the father is their rock. I do not doubt they love him, but they must often feel let down when their needs go unmet by him.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Each child was born into a relationship quite volatile and violent. Both parents drank alcohol to excess. The father used a combination of prescribed and illicit drugs. From the time he was about 19, the father began to experience depression and contemplate suicide, or at least to talk about the contemplation of suicide.
In 2002 the mother began to feel frightened of the father.
In 2004 there was a separation for six months. After reconciliation, O was born and the relationship continued to at times be workable and at other times erratic and violent.
After the father’s accident matters became considerably worse. Separation was sparked by an incident where the father was intoxicated, accidently injured his son and reacted with some violence to his son hitting him in retaliation. The father threatened to kill the mother and she believed him. She left with all the children in March 2012 and after a period of contemplation, decided not to return.
This was an explosive disruption for the children. At first they left the home in the care of their mother, staying with various relatives on both sides of the family. H was moved with his father to live with his paternal grandmother and since then he has been cut off from his mother. The other children were allowed to move between the parents. There were a series of upsets and violent incidents. An AVO was taken out by the mother for her protection and that of the children.
The mother formed a relationship with a man who proved to be violent towards her and unsatisfactory in his relationship with the children. The children were not supported and encouraged by their father to maintain their relationship with their mother. He did not reassure them of her love.
Further in circumstances where the three older children have become aligned with their father, the views expressed to the Family Consultant in May 2013 are profoundly affected by that situation. The Family Consultant states that the father has been unable and/or unwilling to provide for the older three children to have a meaningful relationship with their mother. I agree.
In May 2013 Ms D assessed that if the children remained living with their father, the three oldest children would continue to have no relationship with their mother. That has proved to be the case. Her further assessment was that if O remained living with his father, there was a risk that he too would be estranged from his mother. In fact the parties agreed that O would go to live with his mother and O alone has been able to maintain a good relationship with both his parents. To a great extent this is attributable to the mother not under-mining O’s relationship with his father and supporting strongly his relationship with his brothers.
I further agree with Ms D that the three older boys have been unable to sustain having a relationship with both parents. It has simply been too hard and they have made a choice. Ms D says this:[25]
Unfortunately however whilst such an approach provides a temporary psychological respite for the children, if the core issue of alignment is not adequately addressed, then there will be ongoing and lasting consequences for the children’s future social, emotional and psychological development. Specifically the development of their psychological self may be compromised, as when a child is exposed to conflict around two mutually exclusive perspectives, it interferes with the development of a strong sense of self and a capacity for good reality testing.
[25]Family Report dated 30/05/2013, par 143
I give considerable weight to the fact that O has been relieved of the consequences of alignment to a great extent. It is in this context that I consider the weight to be given to the views of the children expressed to the Family Consultant.
H expressed a strong view that “he still didn’t want to spend time with his mother.”[26] He made increasingly negative statements about her, “I just don’t like her as a person. She’s just a mean person that thinks the world revolves around her”.
[26]Family Report dated 30/05/2013, par 60
In relation to his views about his father, he said that his father was “alright, he’s just a bit crazy in the head.” He went on to explain that problems arise in the family when his father didn’t take his medication, “When he doesn’t take his medication he goes off and hates everyone.” He also said that his father “yelled random stuff that makes no sense” and that he and his brothers “just ignore it or do what he says, it depends”.
Most concerningly, H said that his father speaks rapidly when he has not taken his medication and often tells us to get drinks and skulls cans of coke. On bad days, H described his father as having no emotion:
He doesn’t care where we go, just that we leave him alone.
On a not-good day he said that his father:
.. wants everyone to go there (to the mother’s or elsewhere) and not come back. On a good day he wants us to stay with him.
H indicated that he had learned to tell when his father was not well. He would then do his own thing and sit in his room without making a noise. H said he rang his paternal grandmother, she came to the house and made his father take his tablets and “that slows him down”.
H revealed that he knew that his father did not like his mother and his basis for knowing was because when his brother C “says stuff to [O] about her and dad doesn’t stop him and just agrees”.
H was very strong in his expressed wish, “I want to stay with dad” and that if an order was made for him to live with his mother, “I’ve no idea, I won’t go, I’ll find a way out of it.” He thought it would “suck” if he was split from his siblings.
H is now 14 years and three months old. He is given priority in the household, largely because of his great success at Sport S events which his father facilitates. His education has suffered accordingly, but it is apparent that he is able to pretty much do as he pleases in the household. It is likely that H takes a role in the household, helping with his brothers and watching out for his father.
If I accept the evidence of Ms D and I do, H’s estrangement from his mother will have ongoing and lasting consequences for his psychological development. He could experience difficulties in his interpersonal relationships. It is essential for H, despite his being 14 and adolescent, to restore his relationship with his mother. He is likely to be resistant and to feel disloyal to his father if he does so, but the evidence supports a positive relationship for H and his mother prior to his parents separating.
There is also the specific matter of H and the Sport S events. I am not in a position to know whether H is as passionately committed to Sport S as his father is on his behalf. He may be. The difficulty is that the anticipation that he will continue to compete and continue to be successful is a hope, if not realised, with serious consequences. H is not realising his potential at school and is simply being allowed to stay away to accommodate his sport. If he chooses not to continue with it, or does not continue to be as successful, he will have genuine problems with employment and a healthy and successful young adulthood.
For those reasons I give limited weight to his views in terms of implementing his expressed wish to remain exclusively with his father. I do take into account his wish not to be separated from his brothers. H should have the chance to speak to a well-informed psychologist and restore his relationship with his mother before committing to living with his father away from the other boys.
C is in his first year at high school. He was born with a genetic condition which has required considerable medical attention. He has a moderate intellectual disability assessed in 2009, which has improved since that time. Sadly C has not been attending school regularly and this is very much to his detriment. He too has been permitted to stay out of school for Sport S and/or to watch H competing in Sport S.
C mostly referred to his mother by her Christian name in interviews, occasionally as “mum”.
C was unable to identify why he spent no time with his mother, “I don’t know; she works.” Other than his mother failing to attend a day of Sport S when he had thought she would and failing to give him a game which he had paid for, there was no other issue which prevented C from spending time with his mother. He made similar negative statements about her as H had. His mother was not a nice person, nor a nice mum. He volunteered that his father did not think it was a good idea for him to spend time with his mother, “No if we had something on he’d say, another time”.[27]
[27]Family Report dated 30/05/2013, par 72
C expressed a view that he spend no time with his mother. The significance of this is that he did not identify any disqualifying reason for spending time with his mother. There was no realistic explanation for his position.
C said about his father, that if he forgot to take his medication “he has a breakdown. He yells at us and says get to bed.” Kindly C expressed the view that O should spend time with his mother because he loved his mother more than their father.
In exactly the same way as his older brother there are difficulties ahead for C, both in his education and more broadly in his relationships with others, if he does not restore his relationship with his mother on a proper basis. He too was predominantly cared for by her until separation and she arranged for all and various medical and dental treatments required for his condition.
C has been unsupervised in his use of the internet, which is particularly necessary given the combination of his movement into adolescence and his moderate intellectual disability. C is reported to have been up during the middle of the night talking to friends and possibly viewing pornography as a shared activity with friends on the internet. The proposition was put to the father that C could be preyed on by an internet paedophile. The father was not particularly concerned and was confident that he knew who C would be talking to. At the same time the father said that he wished that none of the children had anything to do with Facebook, which suggests that he disapproves and does not act.
C is now at high school and is 12, moving into adolescence. Nevertheless I do not give weight to his expressed view to spend no time with his mother for the reasons stated. His needs are much more likely to be met in his mother’s care.
T is 11. In May 2013 he was still upset that he had missed out on the Christmas presents that his mother had had for him in December 2012. The mother concedes that she made a significant error of judgment in relation to this matter. She had brought presents for all of the children and they did not come to see her at Christmas time. Ultimately she gave all of the presents to O. T mentioned this matter. He said this made him feel upset that his mother had lied, “she said she had a present for him, but didn’t give it to him”.
This is clear evidence of the strength of T’s affection for his mother, his expectation of her kindness to him at Christmas and his disappointment when it did not materialise. He is hardly indifferent to her.
Other than complaining that his mother had been in the habit of taking phones away from the boys and had them babysat by their uncles, T denied there were any other problems in the mother’s household.
T said that when he had last seen his mother, she was trying to make him come to see her. Although he said he did not really care what the mother says, it is clearly an issue for him.
T said that their father “says we can go whenever we want (to their mother) but we don’t have to if we don’t want to.” T said he did not know if his dad thought it was a good idea for him to spend time with his mother. Significantly he went on to say that he and his brother, presumably C, “should stay at dads and not spend any time with his mother.” He said this was because “no one likes her”. He made an exception, “[O] is the only one that likes her; he can go”.
T said that if there were Court orders for him to spend time with the mother, “I’d probably walk all the way back to dads.” In relation to his father, T said that if his father does not take a tablet “he yells.” He said his father cries and screams in his sleep. It does not bother T because “he’s used to it”.
T is the third in a group of four brothers. He is said by both parents to be particularly close to C. In my view T is towing the family line and like his brothers, other than feeling some hurt and upset with his mother, there are no realistic causes for why he would want to have absolutely no time with her. She was his primary carer until separation and I accept that in September 2013, T and C and O together enjoyed a close, casual, easy time with their mother in a week away in Sydney, including a trip to the zoo. T will be able to maintain his most important relationships in the care of his mother.
O is now seven. He has lived with his mother since July 2013 and visited his father and brothers.
In May 2013 during the period of interviews, O was living with his father. The Family Consultant assessed a notable change in O. His school records indicated that he had gone from being a happy and hard-working student, into a student who appeared to be regularly sad and not care about his learning.[28] O had changed his behaviour in the classroom. He interrupted others and ignored teacher’s instructions.
[28]Family Report dated 30/05/2013, par 84

In May 2013 O continued to describe positive relationships with both parents. He said there were no problems or worries at his mother’s house and that his brothers and his father thought it was a good idea for him to spend time at the mother’s house. He said his father said that the mother is a nice person.
O reported that his brothers did not love his mother. He said that was because they always said that. In the session with the bear cards, O picked a bear who was “not listening and trying to ignore his brothers” to represent how he felt when this occurred.
It does seem that the three older boys and the father have made a special case for O and have supported his relationship with his mother. I am unable to determine exactly why this is. In the case of his brothers, his age and obvious attachment may be the reason. O was only five when the parties separated and may have understood a lot less of what happened in the following weeks and months. It may be that because of the gap of years between O and the three older ones, that it is convenient for the older boys if he lives with his mother.
O said that he wanted to spend lots of time with both parents, but if he had to pick a main parent to live with, it would be his mother, so he would not get annoyed by his brothers so much. This too is an indication that O struggles a little bit in the sibling group.
O appears to have survived separation better than his brothers and has maintained a relationship with both parents. He has not been expected to look after his father in the way the older ones have. O said about his father, “If his dad does not take his medicine he becomes angry in a loud voice.” O gets headaches when his father yells.
O has now been living with his mother for about seven or eight months. He has done well, attends regularly at school and the mother has been compliant with ensuring that he spends time with his father and brothers according to orders. He has thrived in his mother’s care and should remain there.
In November 2013 when the mother travelled overseas with her partner Mr G, she arranged for O to spend time in the father’s household. This apparently triggered a crisis for the father which caused Dr E to recommend hospitalisation. In her evidence, the paternal grandmother said the mother had done the wrong thing by leaving O, which had given him a sense that he was not a priority in his mother’s life.
My view is that the mother took the appropriate course of ensuring O spent time with the most important people in his life beside herself, that is his father and brothers and it is to the credit of the mother that she made that decision.

Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)

O enjoys a good relationship with both parents and a good enough sibling relationship with his brothers, although he is hurt and offended when they speak rudely to and about his mother.
The three older children have a relationship with their father which is parentified. They to some extent take care of him and take responsibility for ensuring that his mother, their grandmother, provides the additional level of care and supervision that both he and they need.
H is the most affected and his relationship with his mother has become estranged. He is resistant to spending any time with her and is said to have refused to enter into a relationship with a psychologist to help him to understand the disruption in his life caused by his parent’s separation. His father and grandmother have allowed him to take that course. It was irresponsible.
All of the children have an important relationship with their paternal grandmother and probably to a lesser extent, their paternal grandfather. They also enjoy a close and important relationship with their maternal grandmother and her teenage children from a subsequent marriage.
Since the children have been living with him, the father has made decisions about the children, particularly their education, without reference to the mother and without acknowledgement that he should have referred to the mother to any extent.
Since separation the mother has not spent all the time with the children that she could have, particularly in the early stages. However I do not consider that this was a lack of interest, but rather a sense of bewildered frustration about how to ensure that the children did spend time with her. There have been times when the mother has not communicated with the children because of their unwillingness to do so, or their poor behaviour.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

There would be a positive benefit for the children in living together as a group of siblings.
H referred to the fact that he would very much not like to be separated from his brothers. Both parents agree that T and C were especially close and should not be separated.
Both parents agree that O misses his brothers because he lives separately with his mother.
The significance of the relationship between the four boys should not be underestimated. Moving the four of them to live with their mother will have an enormous impact. They are used to living with their father and regulating their own time and activities to a great extent with the comfort of regular supervision and monitoring by their paternal grandmother. They have been expressing negative views about their mother and have, especially in the case of C and T, played up and been rude, disrespectful to their mother, they have run away from her and put themselves at risk on the road in doing so.’
In the mother’s household, they would have to come to terms with Mr G, who takes a firmer approach to growing up. He insists on respectful language and has already expressed to the boys that he would not tolerate swearing in the house. This would be a benefit to them. I accept the evidence of Mr G that he cannot see how they will grow up as acceptable members of society and obtain employment with their current unbridled attitude. A significant positive effect of change would be:
(i) That all children would attend school regularly unless they were too sick to do so;
(ii) That they would be permitted to maintain a relationship with their father and grandmother if living with their mother.
The effect on H is likely that he would not be able to miss school as often as he does now, which would reduce his ability to participate in Sport S. That will be undoubtedly disappointing for him; although I am not sure to what degree it is H’s commitment to the sport and not his father’s. The evidence from Hunter New England Health is that the father also enjoyed Sport S as a young man. Some of the impetus may come from him. However it may be the case that H is passionate about his sport and will be upset and resentful if he is restricted.
It will be particularly important for H to engage with a psychologist, to understand why a change has been ordered in his life and also that he has been given the opportunity to make an informed choice about where he lives.
If living with their mother, the children will not see their paternal grandmother every day. Although that relationship is an important one, one positive benefit may be that they cease using profane and abusive language towards their mother and grandmother, modelling themselves on their father in that respect.
The biggest change is that the children would not be with their father all the time. They are likely to become concerned about his welfare. As the older ones said, they are used to his erratic behaviour; they know he needs medication; they stay out of his way on bad days. They will worry about his welfare.
Six months of complete separation for the children in my view would be too stressful for all of them. They would feel hugely guilty if their father became ill or worse at a time when they were not seeing him. Regular supervised time should help to alleviate those fears.
The change of residence will probably be a shock for the three older children and they are likely to react unhappily. I do not consider that the father is mature enough to assist them to adjust. He too is likely to react and resist.
For that reasons the boys should accompany their mother home today to minimise their exposure to their father’s reaction and to maximise the chance for therapeutic intervention and assistance.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

The parties live reasonably close. All adults drive and have cars. All the children are at school. There is no significant practical difficulty.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

There are problems for both parents with their capacity as parents.
The father’s behaviour has been erratic and at times impulsively violent throughout the relationship. He loves his children and enjoys being a father, but whatever the cause he has since separation, been self-absorbed and unable to understand the needs of his children. In particular two things, their need to maintain a strong, loving emotional connection with their mother which they had enjoyed until their parents separated and the need to have their own needs met.
The father needs his children for his own mental health. He has failed to see that they need their mother. He is bitterly critical of her and has not shielded them. He has been unable to see that loyalty has caused them to reject her. Unfortunately the paternal grandmother has sent the same message. She has been critical of their mother and unsupportive of the boys spending time with her, even O. She has been disrespectful of the mother’s authority as a parent and did not hesitate to directly intervene and remove T from his mother’s care, simply because he had asked her to come and do so.
Between the father and the paternal grandmother, the children have been empowered to behave in particular ways, but have been emotionally damaged by losing connection with their mother.
The father has not given any consideration to his decision to allow H and to some extent C, to miss school in order to participate in Sport S. There is no evidence of the father considering the long-term needs of the children to be educated to the best of their capacity in order to find employment.
Likewise, there is no evidence of the father thinking about or seeking advice about the impact on children who have withdrawn from a relationship from one parent in the long term. If the father has really read and thought about the comments of Ms D, it was not evident in his oral evidence. His capacity as a parent is limited by his own circumstances; perhaps illness, perhaps personality. Whatever the cause he has been insightless about the impact on his children of his conduct.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

The children are 14, 12, 11 and 7, a group of brothers. C has an intellectual disability and some particular medical needs. The boys need consistent parenting, rules and boundaries, in order to be able to learn and form healthy relationships.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

There are times when the father has been unable to contend with his children. He has withdrawn or encouraged them to absent themselves from the home. There have been times when the father has either been mentally ill, or has manipulated his mother and others into believing that he is suicidal. Either way, the children have been exposed to his conduct in a way that has taught them that at times he is unavailable to them and that they have no right to expect that he would be.
The mother attempted to keep the children with her, but allowed them to return to the father’s household, to their possessions, to their schools. At times she has made strenuous efforts to ensure the children spent time with her; at other times she has become frustrated and angry and has spoken sharply to the children in a way that has hurt them more than she anticipated. She gave priority to new relationships over the need to carefully protect her relationship with her growing sons.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

All the children have been exposed to violent incidents between their parents. One or more of the children has seen his father hit the mother; hold a knife to their grandmother’s throat and threaten suicide in their presence. They have heard their father threaten to kill their mother. They have been exposed to family violence.

Section 60CC(3)(k) - any family violence order that applies to the children or a member of the children’s family, if:

There has been a family violence order for the protection of the mother and the children, in 2012, which has apparently expired.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

The parents have twice consented to orders for parenting arrangements for their children. In respect of time to be spent between the children and their mother, other than for O, the father has made no effort to comply and has not seen the benefit to the children in his making that effort.
There is a risk of emotional harm ongoing in the father’s household through exposure to the father himself and to the conduct which has led to them becoming aligned with their father and rejecting of their mother.

Parental responsibility

In relation to parental responsibility, each parent asks for sole parental responsibility in respect of all children. The duties, powers, responsibilities and authority which by law, parents have in relation to children, is a significant matter.
The father had the care of all four of the children from mid-2012 until July 2013 and three of them since. During that time he has been largely unable to meet their most significant needs, and has to a great extent, delegated his parental responsibility to his mother, who has attended to their schools, medical appointments and activities. The father’s main focus has been on the children’s sporting activities, most particular Sport S for H and C.
The father lacks the capacity to meet the needs of his children. They have been at an unacceptable risk of harm especially emotional harm in his care.
It is not in the best interests of the children for their grandmother to be exercising parental responsibility on behalf of their father and without consultation with their mother. However she will have an important and familiar role to play for them when time outside the contact centre commences. Her presence in the father’s home when they are there will be necessary for their safety as well as maintaining their own relationship with her. She is able to withstand her son becoming angry with her if he perceives she is not looking after him.
The father is presently unable to work due to illness and disability. I am unable to assess to what extent mental illness and psychological disturbance are responsible for the father’s conduct. There is certainly evidence that he has PTSD and has suffered from episodic depression. He has been dependent on drugs and during the relationship, alcohol.
There is some indication that he has developed coping skills through a five week hospitalisation at J Hospital in August/September 2013, but not unexpectedly, he has had a continuing need for psychiatric attention.
In November 2013 to some extent, the father was quite ill again.
The mother has some deficiencies in her parenting, but she cared for all four children most of the time until March 2012. She has the capacity to meet their needs. She is willing to give the children priority over her partner Mr G, to the extent that that is needed.
In view of my acceptance that Mr G is a responsible person who is willing to take on the onerous responsibility of becoming a step-father to the children, it is more likely that the children will attend school, attend medical appointments, spend time with their father and learn to comply with reasonable rules and restrictions in the mother’s home.
There is no prospect of the parents sharing parental responsibility. The father is both contemptuous and dismissive of the mother and the mother has no confidence, soundly based, that the father will cooperate with her to any extent.
In those circumstances, the children’s best interests are served by the mother having sole parental responsibility for them.
Since the consideration of equal shared time is not triggered, the decision about time and communication between the children and their father is at large. I am urged by the Independent Children’s Lawyer to have a break of six months where the children do not see their father and paternal grandmother at all, and indeed that they be restrained from coming near them.
There is some benefit to the children in such a break; they will need the opportunity to have some therapeutic assistance in dealing with changes and disruptions in their life. However they need to be assured during that time that their father is alright and to have the opportunity to spend time with him whilst they are undergoing counselling and being resettled in their mother’s care.
For that reason a six month period with regular visits at a Contact Centre for the three younger boys, with a resumption of time and communication after six months, appears to be the more appropriate course. H may accompany his brothers but given his age is not compelled by the orders to do so. He will be able to see his father during consultation with his psychologist.
However the supervision aspect is protective for them to ensure that the father does not put them under pressure to come home or denigrate their mother. For that reason the father must stay away from the children at school and at the mother’s home and not communicate at all himself, or through any third party.
I was urged to impose a similar restriction on the paternal grandmother. I have not done so. It will be a matter for the mother to what extent, if any, the paternal grandmother sees the children, other than in accordance with the orders.
For H there is provision for return to living with his father, provided both he and his father have engaged with a psychologist before that occurs, and H has time and professional support to consider his position.
Orders are made accordingly.

I certify that the preceding three hundred and ten (310) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 14 March 2014.

Associate:

Date: 14 March 2014

[2014] FamCA 132

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