Oakden and Oakden
[2008] FMCAfam 871
•20 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OAKDEN & OAKDEN | [2008] FMCAfam 871 |
| FAMILY LAW – Final parenting orders – father’s violent behaviour combined with serious mental health issues and alcohol abuse – children with specials needs – children will not benefit from a relationship with father – significant risk to children of physical, emotional and psychological harm in spending unsupervised time with father – primary considerations under section 60CC (2) (a)&(b) not met by an order for time with father – no face to face contact with father. |
| Family Law Act1975 (Cth), ss.60CC(2)(a)& (b) |
| Applicant: | MS OAKDEN |
| Respondent: | MR OAKDEN |
| File number: | PAM 1106 of 2006 |
| Judgment of: | Henderson FM |
| Hearing dates: | 12 & 13 June 2008 |
| Date of Last Submission: | 13 June 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 20 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Adams & Partners Lawyers, Penrith |
| Respondent: | Mr Oakden in person |
| Independent Children’s Lawyer: | Mr Sperling Legal Aid Commission of NSW |
ORDERS
All previous parenting orders are discharged.
The children [X] born in 1998 and [Y] born in 2001 live with their mother.
The mother to have sole parental responsibility for the children.
The father to have no contact with and spend no time with the children.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligatiofns these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Oakden & Oakden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1106 of 2006
| MS OAKDEN |
Applicant
And
| MR OAKDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter of Oakden was heard by me on 12 and 13 June 2008.
The mother was the applicant and was represented by Ms Gillies of Counsel, the father represented himself and Mr Sperling represented the Independent Children’s Lawyer.
This case squarely raises concerns of risk to the children of physical, emotional and psychological harm if they are exposed to their father’s behaviour when spending time with him.
This is a very sad matter as the children, [X] born in 1998 and [Y] born in 2001, have an attachment to their father and wish to spend time with him.
That attachment comes out clearly from the Family Report prepared by Dr Lucia Vardanega. The boys’ mother wishes the boys to spend time with their father as she recognises their need and desire for a relationship with him. Her concerns are that the children can only spend time with their father in a supervised setting because of their father’s behaviour and attitude to her and the children during their relationship and since separation.
As the proceedings unfolded it became clear that the mother’s history of violence at the father’s hands witnessed by the children combined with his cruel and erratic behaviour in the past and continuing make the concerns she has for her sons soundly based. The mother did not embellish any of the father’s behaviour. It has been and continues to be as violent and frightening as she described it to be. The father was at times during the hearing proud of his anti-social behaviour and had no capacity to understand how the children had been damaged by his violence or that they have been genuinely frightened of him.
The mother’s concerns were not only supported by the vast quantity of medical and police material subpoenaed but also the father’s conduct during the hearing.
It is common ground that since February 2008 the father, by his own choice has not seen the children despite there being orders in place for him to see them. That is a decision he made because he could not cope with the circumstances. I still do not know what the circumstances were as he saw it. The last time his sons saw him he had turned his back on them, whilst holding a bottle or can of beer in his hand and told them “they could leave with their mother if they wanted to”.
At the end of the first day of his cross-examination the father was angry and agitated. He left the witness box before Ms Gillies had completed her cross examination. He stormed out saying he would not be asked any questions by her and she was treating him like an animal not a human. This outburst came as Ms Gilles was pressing the father on his numerous criminal convictions and violent criminal history.
This theme of not tolerating being treated like an animal and only accepting being treated like a human was a constant with the father. No one in the Court treated the father as anything other than as human being to be respected. As the evidence unfolded not only has the father acted like an enraged animal but he has treated those around him as if they were animals.
The father did return for the next day of the hearing. Apparently his current fiancée’s parents had been at Court to support him and were able to convince him to continue. This evidence was given by his fiancée on the second day.
The father was seeking that his time with the children continue in accordance with existing orders and to be without supervision and that changeover occur at school. He was seeking a form of equal time
At the close of the hearing the Independent Children’s Lawyer, who had treated the father most courteously and politely throughout the hearing, was submitting to the Court that a period of supervised time with the boys and the father was an order he contended for. The father stood up and announced loudly “I’ll make this easy for you guys. I’m not jumping through any hoops. I’m out of here. I’m not doing this. Just make sure the boys know I love them” and he left the Court. The Court was left in the situation of the father leaving the proceedings during the submissions of the Independent Children’s Lawyer. The mother began to cry saying “This is not what I want. The kids want to see him. How will I explain this to them?”
The father by his actions abandoned his children for a second time within six months. When it became clear he was unlikely to have the orders he wanted made his actions in Court were similar to those in January 2008.
The evidence
The evidence before the Court was as follows:
The father’s affidavit and the affidavit of his fiancée Ms S dated
11 June 2008. Both the father and Ms S were examined and cross-examined.
The mother’s amended application filed 29 May 2008 and her affidavit filed 16 April 2008.
Court Exhibit 1: the Family Report prepared by Dr Lucia Vardanega dated 10 June 2008 and Miss Butler in July 2007.
ICL Exhibit 1: A letter from Dr R in relation to the mother’s ongoing epilepsy.
ICL Exhibit 2: A letter dated 4 April 2008 to the Principal of [Omitted] School in relation to the children. This exhibit indicated the boys had become increasingly anxious at school when it was time for the father to pick them up on a Thursday. [X] told his school on various occasions that he was scared of his Dad because he was not nice and did not want to live with him and he felt responsible. He described the boys’ levels of work, which is well below their peers, and that their mother is doing all she can for her sons.
ICL Exhibit 3: Reports from Dr C, being the father’s treating psychiatrist. The opening part of the subpoena is a letter from Dr C to Dougherty Partners, who were the father’s previous solicitors, criticising Dr C on the father’s instructions.
Mr Oakden apparently said to Dr C on 19 September 2006 that the clinical notes the doctor had provided at that time had been damaging and they should not have been provided to the Court and that Dr C had breached patient confidentiality. This demonstrates the father’s paranoia and an obsession with himself.
The father was uncooperative in describing his present dosage levels of his various medications. He could not see the relevance of this. Reading Dr C’s notes was of little help.
He told Dr C in May 2008 he was drinking 30 beers a week.
He smokes (dope) but feels better with beer.
The father said he had not bothered to read the family law documents that have been sent to him. Neither the father nor Dr C’s notes assisted the Court in relation to the father’s present mental health status.
Mother’s Exhibit 1: [Omitted] Hospital Notes. A report from the father’s parents that he began to show aggression from age 11 and again at the age of 16 with depression and aggression. He attended [Omitted] Community Health for counselling. There is a report of a suicide attempt in 1996. The report says when he is frustrated and angry he punches walls and:
...isolates himself in bedroom. Drinks (binge) 10 beers approx - makes him feel happy. I don’t pick fights but never walk away from one…I can’t seem to drop it, but that’s me all over”...Had a fight at work 1 month ago after a small disagreement.
The father was asked in cross-examination whether he agreed with these notes. He volunteered with an air of bravado that the first time he remembers perpetrating violence on someone else was at age five in Kindergarten when he split another child’s head open because that child had stabbed him with a dart.
This is a description given by his mother and this mother to the [Omitted] Health Service on 18 November 2001.
Patient has had violent behaviour from the age of 11 yrs. Was under a counsellor till the age of 15. Since then Intermittent violent behaviour. Was engaged to a woman at 22 yrs. She broke up with him. Since then [increase in] violent behaviour. Drove a car into a house. Was under schedule in ED. Discharged after 4 hrs when he got home he threatened further violent behaviour. Also tried to jump onto the railway line.
On 8/10/01 threatened to kill himself. Wife called [Omitted] Mental Health team…The mother and wife did not want him discharged.
He was admitted to [Omitted] Hospital in early February 2002 by police under the Mental Health Act. The discharge summary on 13 February 2002 states:
The patient was brought in at the ED by the police on 24 of the Mental Health Act and as an involuntary patient with attempts to harm self/others/damage property, distress, irrational behaviour and interpersonal conflicts. Mr Oakden and his partner had separated 6 days previously, [Ms Oakden] taking their 2 children with her. [Mr Oakden] was consumed by grief, and in an extremely agitated state, began “hunting her down”. Unable to find her, he proceeded to destroy his partner’s property at their accommodation, alerting neighbours to his deteriorating mental state, who thence notified the police. Upon their arrival, [Mr Oakden] threatened self-harm, by overdose, if he is was not allowed to see his children. In front of police, he proceeded to sallow x10 Amoxil, 12x5mg Dexamphetamine and 10x200mg Epilim. His children had been previously harboured by his father, [K]: Mr Oakden threatened to harm anyone “who gets in my way”, including his father and police.
The above mentioned problems started 05/02/2002. The possible precipitating factors are: sub-optimal dose of medications, social problems, family/relationship problems, and significant alcohol consumption on the day in question and in the week preceding.
MSE on Admission
Patient was uncooperative and had to be interviewed with security present. He was agitated…
Leave periods
…At the time of discharge, patient’s mental state was stable and the symptoms had returned to the previous levels.
Over all Impression
Mr Oakden was admitted due to an acute situational crisis with suicidal and homicidal ideation. This occurred in the context of abandonment from his wife and children. He has a history of aggressive behaviour in similar circumstances; this is a man with significant axis II pathology. He requires long-term follow up in the community and counselling, regarding anger management issues.
He was assessed on 17 December 2002 under the Mental Health Act at [Omitted] Hospital where police had brought him and had charged him with various offences. This was at a time when the parties had one of their many separations. He was charged with common assault, resist arrest, assault police, and breach of an AVO. The report notes:
There is a history of depression, self-harm and overdose. He was intoxicated at the time of his arrest saying he only had 2 to 3 beers a day. Relational problems, depressed mood and suicidal ideation. The father had been removed from the former matrimonial home by Police.
Mother’s Exhibit 2: NSW Police records. There are so many admissions in these records that I cannot recite them all. They start on 18 November 2001 and the last is 28 February 2008. All concern violence, drunkenness, abusive behaviour, suicidal ideation and thoughts, aggressive behaviour, antisocial conduct against a range of innocent people including his mother, step father, his wife, children, girlfriends, girlfriends’ parents, people in the community and police officers.
The last notification was 28 February 2008 when the father called the police because he and his current fiancée were having an argument. He said in his evidence that this is an appropriate way to calm things down by calling the police. The police report says he looked to be affected by alcohol.
Mother’s Exhibit 3: NSW Police records.
Mother’s Exhibit 4: Documents produced by [Omitted] hospital in relation to the mother.
Mother’s Exhibit 5: Further police records. This is where the father threatened his mother on 22 March 2006.
“Hello mummy you hurt my grandkids. I’ll kill you.”
The mother took an AVO out against her own son for good reason.
Mother’s Exhibit 6: Reports from the children’s school [omitted].
History
The parties commenced co-habitation in March 1997 and were married in November 1997.
The child [X] was born in 1998 and the child [Y] in 2001.
The parties finally separated on 27 January 2006 for a final time.
Consent Orders were made on 7 July 2006 for the father to spend time with the children and for them to live with their mother.
The matter has had a lengthy history in the courts. The orders made on 7 April 2006 provided for the father to spend time with the boys each alternate Thursday from after school to the commencement of school the following Monday and each Thursday from after school until 8.00 pm together with holidays.
The matter came before me on 4 September 2006 for a variation of orders and I appointed an Independent Children’s Lawyer. The orders were varied on 20 October 2006 by consent in terms of collection and delivery of the children. They are the current orders.
On 2 July 2007 I listed the matter for final hearing on 2 and 3 July 2007 and ordered the preparation of a Family Report which was prepared by Miss Butler and released to the parties. The hearing did not take place and interim orders were made that the father attend upon Dr C and undertake further therapy as Dr C may recommend in relation to depression and anger management.
The mother wished to change the children’s school. I heard that as a discrete issue on 8 January 2008. I permitted the mother to enrol the children at a school different to that the father contended for. The father was upset by this decision as he did not get his way. He has effectively not spent time with the boys since then.
There are serious allegations by the mother of violence and threatening behaviour by the father throughout the relationship directed to her, family members and the children. Although the mother entered into consent orders with knowledge of the father’s past violent behaviour, his behaviour has continued to be of a real concern to her and her hopes he would begin to calm down under Dr C’s treatment have not come to fruition. Thus I will have regard to the father’s behaviour prior to and post the consent orders.
These are but some of the incidences of violence perpetrated by the father upon the mother.
On 11 February 2002 the father was verbally abusing the mother when he grabbed an axe and began to swing it towards her in a threatening manner. He smashed a door jamb before police arrived and subdued him with capsicum spray. He was scheduled under the Mental Health Act. As the evidence unfolded it became apparent [X] has memories of this event.
On 16 December 2002 the father was intoxicated and the parties argued. He smashed photos and furniture. The mother was frightened for her life and tried to leave. He said “I will burn the house down.” He punched the mother. She fell to the ground he continued to hit her. The father tried to leave with [Y]. The mother grabbed the father’s shirt. He hit her in the head three times. The father broke the wooden leg of a stool and threatened to hit the mother. The police arrived. He assaulted the police before they subdued him with capsicum spray. The father was scheduled under the Mental Health Act. [X] has memories of this incident and was involved as I will refer to later. Both boys were present.
On 8 May 2005 the parties had separated. The mother approached the home to collect her belongings. The father pushed her with the security door so hard that the door fell of its hinges. The mother was frightened and suffered an injury to her elbow. The father followed her to the car threatening her with the words “I will punch you and Miss Butler in the head”.
The parties were reconciled on 13 January 2006. The father was drinking significant quantities of alcohol and was becoming increasingly agitated. On the following day he punched the mother in the face and chipped her front tooth which had to be repaired. The father was charged with assault and the parties finally separated.
On 3 March 2006 the father head butted the wife’s sister outside the police station on a pick up of the boys. He was charged with assault.
On 7 March 2006 he followed the mother in her car calling out “you fucking drugo slut”.
In July 2006 the father SMS’d the mother “I am about to kill myself”.
On 25 July 2006 the father rammed the mother’s car.
On 27 July 2006 the mother received a text message “I am done over it. I will leave you and the kids alone to get on with your life”.
In July 2006 the father’s then girlfriend Ms H rang the mother “I need your help. [Mr Oakden] has gone crazy, smashed the house and hit me. I need your help to get him scheduled. I know you have done it before”.
In July 2006 the father’s sister [name omitted] rang the mother to tell her she had to flee from the mother’s home where she was caring for the children because he kept threatenng her, ringing and texting her.
The mother has real concerns for the children since the orders were made when in their father’s care. They have viewed pornography. He has drunk alcohol to excess. He and his former partner Ms H have had violent verbal and physical altercations whilst the children were with him and the police have been involved. The police have been involved with arguments between the father and his current fiancée. He has been physically threatening towards and hurt the boys by way of discipline. The boys particularly [Y] is frightened of his dad and his reactions. The father does not accept his sons have the significant learning and behavioural conditions their mother and school are treating them for being ADHD, occupational and other therapies, learning and behavioural difficulties. These concerns are set out in paragraphs 52 to 93 of her affidavit. I accept the mother’s evidence in her affidavit.
Both boys have significant developmental delays and difficulties.
Dr Vardanega did not have the benefit of the subpoenaed evidence nor the father’s affidavit when she conducted her interviews. The father only choose to take part in the proceedings two or so weeks before the hearing and had not filed any affidavits and her report was only recently prepared.
At the time of her report Dr Vardanega was of the view the children were still seeing their father on alternate Thursday afternoons to school Monday and each Thursday evening when clearly they were not. The father had unilaterally ceased that time in January 2008.
The boys have a young brother [name omitted]. Mr Oakden is not that child’s father. The father and his fiancée Ms S are expecting their child in September. Ms S has an older boy who these boys are fond of. He lives with Ms S’s parents and sees his mother on the weekend.
The Family Report writer was critical of the mother and her attitude to the father and fears for the boys’ safety when with him. She said:
10. Ms Oakden presented as ambivalent about her desire for the children to spend any time with their father. While on the one hand she acknowledged that the children should have a relationship with their father, she indicated that presently they are unsafe in his household and she is not agreeable to any visits that are unsupervised unless he receives psychiatric help and stops drinking alcohol.
11. Mr Oakden would still like to consider an equal shared parenting arrangement. Failing this, he would like the previous Court orders to be reinstated…
There was some criticism that the mother was guarded and anxious and took time to make sure that the father would not be present when she was there:
12…Her non-verbal and verbal behaviours suggested a fretful and agitated demeanour that was expressed in front of the children.
13…She listed several concerns that underpinned her request for him seeking such treatment including his numerous, his suicide attempts, his aggression towards her over a prolonged period, his abuse of alcohol and his inability to manage anger. She claimed that she is unconvinced that he has taken action to remedy any of the concerns she has had in these areas and that the children have also finally seen “his true colours.”
14. Ms Oakden stated that the children have been afraid of their father for a long time because they have witnessed many domestic disputes. She stated that [X] told her that he did not disclose the extent of his fears to the counsellor who prepared the last report because “He was afraid he would hurt his father’s feelings”…She also said that [X] has indicated that he would be happy to visit his father “once in a while” and that he loves his father because “He’s Dad and Dad is Dad”…
15. Ms Oakden’s view, [Y] feels more afraid of his father than [X], but has also had the courage to stand up to him. She stated that both she and [X] feel proud of [Y]’s behaviour in challenging his father and telling his that he did not want to visit…
This visit was the impetus for the January 2008 incident. [Y] told his dad he did not want to visit. This is when the father turned his back on [Y] and then said to [X], “you can go off with your Mum as well.”
[X] has real fears of the police. He told Dr Vardanega: “Dad attacked the police and I thought the police were mean”. He also told her “I have bad memories of the police.” The eldest child has a real fear of police the consequence of which is important to my decision as the father uses police religiously to settle disputes he has with his fiancée.
Both boys have epilepsy. They have cogitative delays which affect their school work and attention span. [Y] has been prescribed Ritalin, they have received counselling. [Y] received speech therapy and both are awaiting occupational therapy services. These are children who have their own needs and must be managed sensitively. Their needs should be paramount in the minds of their parents. It is clear that Mrs Oakden parents these children to a high standard. She impressed as a committed and competent parent very engaged in their day to day care and has clicked into services to help her sons reach their potential.
I have not formed the same view of the father. Mr Oakden did not believe the Court supported him as the children’s father by the decisions that have been made. He was most upset that the children were permitted to change school. He agreed there had been
incidences of family violence; however, he blamed those incidents on
Mrs Oakden. That is, it was her fault that he reacted as he did.
He said she blows everything up and blows everything out of proportion. He was of the view that he has been arrested easily because Mrs Oakden’s family have several police members. He claimed the mother had been violent, emotionally unpredictable and provocative toward him. She allegedly had had people bash him with a baseball bat after he applied to receive child support and caused damage to a house he had been renting. He claimed the mother’s sister suffers schizophrenia and scratched his face.
The father agreed he was still under the care of a psychiatrist Dr C, and taking medication to stabilize his moods, depression and ADD. He believes his mental health was stable. I had impressed on Mr Oakden the need for a report from Dr C for this hearing regarding his present mental health and stability. No report has been produced. Mr Oakden said he had asked Dr C to prepare a report for the hearing but Dr C could not or would not because he could not say who the best parent was.
The father agreed he had attempted suicide and said “That was when she wanted to take the kids off me. The kids are my world”.
Mr Oakden became upset when it was put to him that he told the Family Report writer that as he hadn’t seen the boys since January maybe his children think he does not love them anymore.
I accept that is likely to be true.
Ms S said that the father finds not seeing the children very hard. However she did not let the Family Report writer know that this decision was the father’s and no one else’s. What the father finds hard is not seeing his children on his terms.
In relation to violence in her home and the police being called she said she and Mr Oakden have worked on alternate management strategies in the past, including going out the back, having a smoke, calming down, and giving themselves space from each other. She agreed they have also used police.
[X] spoke to Dr Vardanega concerning his school. She reports at paragraph 27 of the Family Report:
he said he has good friends at school, but with an air of bravado told me that he is in the process of “gathering up my friends to bash someone up. He’s been punching me in the testicles. I’m sick of it. I might get suspended but I am willing to take that risk.”
He then said;
“What I am trying to do something that was like a vigilante.”
The air of bravado is similar to the father’s recitation of his earliest memory of violence being at age five when he attacked a child he said had hurt him.
His closest person in his life is his mother. He recounted the last time he saw his father he was drunk. [X] said [Y] walked up to him and said “I’m scared of you. I want to live with Mum.” That was the bravest thing I ever saw.” [Y] knew that his father had texted the Mum with the words “you win, I lose.” He said he felt sad and began to cry because he thought his father didn’t love him anymore. “He’ll always be my Dad. That means I will always love him.” He disclosed he was nervous seeing his Dad. When asked “Why?” He said “I prefer not to talk about it, it’s kind of depressing.” [X] said he thought his Dad would be on his best behaviour but he was firm that he has memories of his father’s violence. He remembers his father saying:
“You’re Mum’s a slut”. Dad got angry and chopped the door with an axe. He kicked the door open, chopped it with an axe and I saw bloody footprints on the floor.” [X] added “I’m surprised I am not feral with a Dad like that.
[X] also remembers his father grabbing him by the face in the last school holidays and saying to him “Don’t laugh at me you dickhead”. [X] said he would love to see his uncle and pop but “Dad threatens them and they’re scared of Dad. Even Dad’s parents are scared of him.” As the evidence unfolded that is a true statement.
It came out that [X] knew this because his Mum had told him. What
Dr Vardanega did not know was that the father’s mother and sister have all taken AVO’s against him over a lengthy period of time. They are scared of him.
What Dr Vardanega did not know was that the incident described by [Y] of his dad having an axe, smashing the door, blood and his dad fighting the police were all true. The mother was in fear for her life and that of her sons. [X] was hiding whilst his father behaving like an enraged animal in the field proceeded to threaten his wife and the police with a broken stool leg. [X] has witnessed at least two terrifying incidents with his father and police, which I will describe later. These are real memories of the child not stories his mother has imposed upon him.
[X] said [Y] was the most scared of his Dad and he was afraid he would “do something wrong and he’ll go off his narna”. He did have some good times with his Dad. He said “He used to play x-box with him. He used to take us to the park. They were good times”.
[Y] said: “I am scared of Dad. I have pulled up my jacket and cap on the protect myself so I will be in disguise” and he said his mother told him to do this. He loves his Mum. He has positive memories of spending time with his Dad, doing BBQs and playing x-box and then he said (at paragraph 36 of the Family Report):
“…the rest is trouble. He has been punching my Mum’s fridge, chopping the door with an axe, punching holes in the walls, threatening to stab and kill himself and doing a threat on my brother.” [Y] also stated that he watched American Pie while with his father and he told them “if you tell Mum I let you watch American Pie your Mum is going to get hurt and you don’t want your Mum to get hurt”.
From the evidence [Y] too is reporting incidents he has experienced at the hands of his father not stories imposed upon him by his mother.
[Y] wanted his Dad to start his whole life over again. [Y] wanted to stay with Mum forever and Dad would never be able to recognise him. [Y] didn’t want to see him because he scares him.
The children have a close bond with their mother as was observed.
When Mr Oakden entered the room the boys were a bit hesitant. [Y] said “I’m a bit scared because you have done so many bad things.” His Dad said not to be worried and [X] also said to [Y] “no need to be scared.” The boys began playing.
The boys were pleased to see Ms S and hugged her. They asked about her son [Z] and they both told their Dad what they wanted to do. The boys spoke to their paternal grandmother on the telephone and talked about a rabbit they had. When it was time to go [Y] said “no I don’t want him to go yet. I want to show him one of my cuts.” The boys hugged their father and said goodbye.
The Family Report writer asked the boys if their father was really like that. [X] said “when [Y] and I play up he gets a bit grouchy. When we are not playing up that is how he would normally be.” Their mother said “I told you nothing would happen”. All was fine.
Most perceptively the Family Report writer said after observation (at paragraph 46):
Mr Oakden minimizes the incident [in January 2008] almost to the point of dismissing it and places blame on Ms Oakden for having been the perpetrator. He has chosen to withdraw, casting himself into the role of a victim to what he perceives as Ms Oakden’s manipulation.
She goes on to say that for the children however it has become a reason to doubt their father’s love for him and both boys have concerns about being loved and accepted by their father.
The Family Report writer gained the impression, which was evident at the hearing that Mr Oakden does not agree with any of the diagnosis for his children. I formed the view that he would not comply with any regime of medication or therapy. The Family Report writer notes that (at paragraph 49):
…There were no reports in the documentation provided regarding Mr Oakden’s mental health however he claims he is compliant with treatment and medication prescribed by his psychiatrist and he has developed some alternate anger management strategies…
50….[X] and [Y] are the prototype of children who in adolescence have the potential to become prey to inappropriate peer groups that may exploit them. It is essential that, in the context of their family life, they experience stability of routines and school as well as safety in a non-conflicted environment in order that an atmosphere is provided that allows them to mature adequately. They also require the input of appropriate adult, especially male role models, as they approach adolescence…
The Family Report writer casts doubt on whether the boys themselves remember violent incidences or this is something reinforced by their mother. She believed that the children were identifying with their mother’s highly anxious state. Given she did not have the benefit of the subpoenaed material and Mr Oakden’s behaviour at Court I can understand her opinion. It is however wrong. These boys have witnessed significant violence at their father’s hand and those memories are real and are theirs. The mother has the same memories as they do. They have all been terrorised by the father in the past.
Her recommendation was that the children spend alternate weekends with their father and that he continues to receive psychiatric monitoring from Dr C.
As the evidence unfolded that is not an order I can make in these children’s best interest. I, with the mother and the ICL are concerned about the children spending any time with their father in an unsupervised situation. The father continues to be violent, unpredictable, moody and aggressive. He demonstrated as such at the hearing before me.
In cross-examination the mother said she can no longer speak with the father in any way. She is unable to communicate with him because he cannot speak to her in any civil manner. I accept her evidence.
She said she has been concerned for her children for sometime because of the behaviour they were experiencing at their father’s home and she commenced using counselling services with the school. There was always conflict at the father’s home particularly when he was living with Ms H but this continues still on the evidence. The father showed the children inappropriate videos. The father is violent towards them and he is often drunk.
The mother agreed that it was a nice act for the father to drop show bags to the boys in April 2008 given he had had not seen them since January. He left no note or correspondence or message for the boys however. It is clear the mother has, based upon good cogent evidence justification for her continued adverse view of the father, her fear of him for herself and her sons.
The mother says she told the father about the boy’s absent seizures but he takes no notice. The father won’t talk to Dr W who is the boys’ treating neurosurgeon concerning their epilepsy. The father agreed this was correct in cross-examination. He said Dr W is arrogant and does not treat him like a human and he will not have anything to do with him or listen to what he says. He agreed he called him a wanker to the boys.
The mother said the boys told her that their Dad said “play private eyes at Mum’s home”. She believes and I agree with her that he wants them to spy on their mother.
Neither the mother nor father could look at each other at any time.
The mother said she was unaware that [X] had told the school counsellor he thought his father had abandoned him, that he was scared of his Dad and his Dad was mean. It is interesting that abandon is the same word the mother uses in her affidavit. No doubt because it accurately describes what the father has done. The mother said she wants the boys to see their father but she must make sure they are safe hence her request for supervised time.
The mother says she is becoming increasingly scared of the father as time passes. The mother said [X] said he felt responsible for the situation and this was also noted by Dr Vardanega in her report.
The father said in his cross-examination that he wanted a week on and a week off. He agrees that the boys have had epilepsy but doesn’t agree that [Y] has ADHD. He is fine with him and has no behavioural problems. If this is the child’s’ behaviour with his Dad then I accept what [Y] says that he is scared of his Dad.
The father has moved to [Omitted]. He hadn’t bothered to tell the mother or anyone else his change of address. It is clear he had a fight with his then landlord and had to leave those premises quickly within 24 hours. His fiancée’s son does not live with them he lives with his grandparents. That is probably for the best.
In relation to his medication he says he takes Amira 300 milligrams three times a day, Dilantin twice a day he did not know the dosage and Dexamphetamine three tablets 5 milligrams a day. He takes Ritalin for ADHD, Amira for depression and Dilantin is a mood stabiliser.
He likes Dr C. He sees him every three months. He agreed it was better for him and the kids that he saw Dr C and kept up his medication and he told me he will keep it up. However, he did not produce any report from Dr C. He said he didn’t like the fact that the Court saw
Dr C’s notes because he told Dr C the truth. The father doesn’t understand the Court needs to know the truth to make a decision in the best interests of the children. He said he knew the allegations of his mental health were an issue. He has been consistently accused by the mother that he hit her and the kids. He agrees he smacks the kids.
He said he could see the Court would be concerned about his mental health and his behaviour. There is nothing in his affidavit to show he is aware this is an issue and no report from his treating psychiatrist. It became clear that the father had done absolutely nothing to present evidence to this Court that his state of mental health as he asserts is vastly improved from what it had been. The best he had were his words “I am stable. I have been for a couple of years.” When pressed on that he said “Well I don’t go around smashing holes in walls anymore.” He acknowledged he had problems with mental health in the past but denied he continues to suffer any real problems.
He conceded there were incidences of family violence and had to admit he had minimised and brushed them aside to the Family Report writer Dr Vardanega. He agreed that the children may think he does not love them anymore because he is not seeing them. He agreed he had not put his attempts at suicide in his affidavit. He agreed he had problems with anger in the past. He agreed he had been told by me when the matter was listed for hearing “It is absolutely crucial that you get this report from Dr C because your mental health, your aggression, your violence and your poor behaviour is really the issue in this matter, and if you don’t get it, it may go against you”.
The father said he head butted the mother’s sister in 2006 when he was waiting for the children at the police station because she came up to him and treated him rudely. He did this in the presence of his children and her children. There is absolutely no reason why he should have acted that way.
He claimed he sustained injuries. None were reported in the police notes. The father said he had done this as the only way he could protect his kids. There was no danger to his kids at that time from anyone other than himself. Even if the wife’s sister said something to him it did not put the children in danger. He continues to act aggressively any where and at any time even outside a police station. He has no qualms that his children or their cousins see him act this way. He has been violent to his mother, his sister, his wife, her sister, Ms H and her parents and his step father.
He told the Court he was drinking ten cans of beer a day or up to three cases a week a couple of months ago. He says he has slowed down to three or four cans a day because he is working. He drinks more on the weekends. He told Dr C he has decreased his drinking. There is no evidence to support this bald assertion by him and it is against the weight of the evidence.
Mr Oakden did not believe alcohol was a problem for him now that he was at work. He still has a binge now and again. He agreed he had an alcohol problem before he started work earlier this year but really he has it under control now. He admitted he had used alcohol irresponsibly in the past. He agreed he had used it to such an extent he was hospitalised. He went out with his sister’s partner a month ago and became so intoxicated the police had to be called. He still maintained however that he is not drinking to excess I do not accept this evidence. He has had and continues to have a dependence on alcohol. He believes it calms him down and makes him more relaxed. That is the evidence he gave to the Court. His sons have seen him drunk.
The husband does not address any of his mental health issues or alcohol consumption in his affidavit. He clearly drinks four or five cans of beer a day. He says so himself. He has one can of beer when he gets home, one with his tea, one after tea, one before bed, maybe two if he stays up late. He goes to bed between 11.00 pm and 1.00 am. It helps him sleep and it calms him down. It relaxes him.
The father’s home is not proper for these children. The children did not have proper accommodation when they stayed with their father. They were sleeping in the lounge room on the double fold up bed. There are far too many people living in the father’s home.
He agreed his children had learning difficulties and needed speech therapy. He blamed the mother that he was blocked out of the children’s speech therapy. I formed the view that he had no interest in attending to his children’s speech therapy needs. The father’s attitude to [Y’s] ADHD diagnosis was that “they are pumping him full of pills”. He was asked whether he has spoken to the children’s doctor about his concern. He clearly has not. He believes that adults involved in his sons’ care should do what he wants and says. He takes no proactive steps to address for himself his children’s medical and therapeutic needs. He said he did not have to accept what Dr W told him about his kids and he agreed he told Dr W that he was a wanker.
He agreed that when I made the order for the children to change schools he had said to me “cause you are not listening to me I am going to opt out”. I’ll walk away from all the fighting.” It is only in the last two weeks has he decided to participate in the proceedings. He has completely abandoned his children since January 2008.
The thrust of his affidavit was he was seeing the children and is fully committed to them. Nothing could be further from the truth. He said he had made a decision not to see the boys until this hearing. His reasons were unclear. He has not rung the boys or sent them a letter or a card, contacted the school to see how they are going. He said he hasn’t done anything because he knows they are ok because of his family.
The January 2008 incident. The father answered the door when the mother came to deliver the children in his singlet and shorts holding a beer. It was summer and hot. [Y] said to him “I am frightened. I don’t want to stay with you. I want stay with my Mum?” When [Y] said this the father turned his back on him and walked away. He left his little boy standing on the front step of his house with his mother. The father then turned to [X] and said “Do you want to go?” and when [X] said “Yes” the father said “Might as well go as well”.
As the mother and children drove away he yelled “The solicitors can shove it up their arse. I’m not coming to Court anymore.” That is the children’s last image of their father.
He was asked what effect that event and his behaviour might have had on the children. He thought the kids would be upset because he raised his voice. It was put to the father that his statement and behaviour clearly says to the children that he has abandoned them. The father would not admit this.
The father agreed he had told the Family Report writer that he was concerned that the children might think he turned his back on them. He was asked what he had done to reassure them. Nothing. He was asked “What effect do you think this has had on the children?” The father’s answer was breath taking. He said “It has made it easier for the mother to brain wash them”.
He agreed with the proposition that it is uncomfortable for him to deal with the matter so he has decided not to see his boys.
The father agreed he had not seen the children since that time and was going to wait until the hearing date. When asked “How was the hearing date going to change the time he spent with his children?” He said “Oh I could collect and deliver the children from school”.
In the continuation of the father’s cross-examination on 13 June 2008 he became very aggressive when asked to tell the Court where he had disclosed his mental health issues in his affidavit. He had not made any disclosure or demonstrated any insight into the effect on his family of his significant mental health issues.
He said he was introduced to Dr C in 2001 and he said things had become better after that. He said “Dr C is good. He treats me as an individual. I have stuck with him”.
It was put to the father that his method of dealing with people he does not like is extreme. That he becomes angry and violent in their presence and that this is still his method of dealing with conflict.
He admitted he has punched holes in walls in the past “I punched holes in my own walls not in anybody else’s”. He says he is no longer behaves like that and he now walks away.
The father threatened to gas himself in 2001. This was clearly a manipulation by him for his wife to return which she did. The police were again called. The tactical response unit was called to his home. He was lying on the floor with a baseball bat and a gas bottle with the valve fully open. He denied these events before me. I accept the police records. He was taken to the mental health unit.
The father justified his extreme behaviour with the words “If you speak to me nice I will speak to you nice. If you speak to me arrogantly you get treated like shit”. Clearly no one can challenge this father as to his behaviour no matter how anti-social and dangerous to others it may be.
On 11 February 2002 the police were again called. He was destroying furniture, taking an axe to the front lawn, chopping up furniture in the house. This is the event [X] remembers of his dad splitting the door jamb and blood all over the place.
He was asked if he remembers the maternal grandfather coming to the property in 2002 to try and calm him down. He was asked if he remembered saying to him in [X]’s hearing “Fuck off and get off the property or I’ll get ya”. He could not.
The father justified his aggressive, violent and frightening behaviour to his wife in the presence of his sons on every occasion because he said his wife, aided by police were taking his sons off him and he was fighting for them. That is a complete fancy by the father.
In the incidents in February 2002 and December 2002 both children witnessed their father’s violent and frightening behaviour. [Y] and [X] witnessed their mother being hit, police officers coming to the home, his father’s swinging a table leg, he had in his hands at the mother and police, striking two officers, his father screaming and shouting to the police to fuck off and then the police spraying him with capsicum.
The father said he was stumbling around the lounge room unable to see swearing at police and swinging the table leg. He heard [X] come into the room crying out, “I’ll save you Dad. I’ll save you”. [X] was 4 and [Y] 12 months of age. It was at this time the father decided would stop swinging the table leg because he did not want to hurt his son. That was why he stopped fighting. This evidence was given with bravado and pride by the father as he still firmly believes his behaviour was justified and appropriate at that time.
The father portrayed himself as a hero in this incident protecting his family and his property. He was not. He was violent, aggressive, out of control, completely self absorbed and had no regard for the stress and trauma this incident would have had on the mother, [X] and ultimately [Y] who was but a baby. That [X] is frightened of the police is not surprising. [X] is fearful of police because he believed they were hurting his Dad.
The father could not understand anything from [X]’s point of view. He was asked “When you look back do you think this was a good thing for your children?” He answered. “My kids are worth fighting for. When somebody takes them away I will fight for them”. The father said it was “crap” when the police told him they had to leave the children with the mother.
There were guns at the home. They were the father’s brothers’ guns. The father would not accept the police had real concerns that there were guns at the home with the father in this highly dangerous state of agitation.
It is clear the father has real issues with authority. He said “If police come in arrogant and throwing their weight around. I’ll fight. They are just people like me”. The father agrees he said to the mother “At least I hit the door and not you.
The father’s answer was rambling but insightful. His father had abandoned him and he did not want that to happen to his sons. His brother had guns they were not his and no one should have been worried about that. He had copped shit over his brother’s guns. They weren’t even his. He didn’t think it was proper that the police were concerned. The father said “Ask what you like. The police broke my cheek and the hospital notes said I had contusions to my face”. The hospital notes do not record any such injury to him only injuries to the attending police officers. The father’s face was noted as swollen and bloody.
On 17 December 2002 he was again admitted to hospital for assault on police and resist arrest and detained in the mental health unit. He was asked “You had thoughts of hanging yourself. You had been drinking” He said “Yes I did have those thoughts but could not remember drinking”. The police notes say he was heavily intoxicated. He was in hospitalised for three days.
The father has had ten admissions to [Omitted] hospital for mental health issues for about age 22. In 2006 he became so intoxicated his sister and then girlfriend Ms H called police and he was admitted to hospital overnight. He told the Court this was unnecessary and when he was released in the morning he went straight to school to see [X] in a school play.
The persons who have taken AVO’s out against him are Ms H, a former girlfriend and her parents, his wife, his sister and his mother. It is a real concern to the Court that persons so close to him have felt so fearful of his behaviour they have taken out AVO’s for their protection.
When the father was questioned on the circumstances of his mother taking out an AVO he said he didn’t agree with “how my mother was behaving”. This was said as a justification for his poor behaviour towards his mother.
Consistent with the entirety of the father’s evidence none of these AVO’s was as a consequence of his behaviour. It is always someone else’s fault he behaves as he does. In any event the father said his children were not there at the time so it was ok.
The father has taken the children to the police on three occasions about bruising and he retained the children on three occasions in 2006. He asserted the children were harmed in the mother’s care. This is but a flight of fancy from the father. The children have never been harmed in their mother’s care. The risk to the children is his behaviour not the mother’s. The father is manipulative and a liar.
He was again scheduled in September 2006. After his release he was at the school. The mother said “Why are you here. You shouldn’t be here it’s my weekend”. As the mother left with the children their school teacher heard him say “A baseball bat is coming your way” He denied saying those words. I accept it happened.
The father did not agree his behaviour was inappropriate at the school. The reason being he was not abusive. He did not agree it was better that the boys did not witness any nasty exchange between his parents because “No. I do not want to waste any time”.
He admitted he drinks on most days and quite a lot when he doesn’t see his children.
The father then said “I can understand people have concerns about the children in my care if I am still like I was in the past. I have changed”. He couldn’t remember the last time when he attempted suicide. The records show it was March 2007. Barely a year ago when he broke up with Ms H. He was drinking alcohol to excess at that time.
He reiterated he had changed. He says he still gets upset and angry. “I just walk away. I don’t act like I used to. I don’t punch holes in the walls. I don’t go yelling and screaming”. He would not admit that he and his fiancée have had heated arguments. They have called the police on many occasions at their home. This is how the father deals with arguments between him and his fiancée. When [X] is so fearful of the police this is a most concerning response to conflict.
He exposed the children to Elmo and Tigger humping on the internet. This is inappropriate viewing for children to see. The father could see no issue and was amused by the Court’s concern that the picture was simulating sexual. The father said “It’s not real pornographic stuff. I thought it was fine for the boys to see Elmo and Tigger humping”.
The father had an angry outburst when paragraph 33 of Ms Butler’s report was put to him. It says :
…( the father ) can’t see the benefit of talking to a counsellor and reflected on a bad experience of counselling in his childhood.
He raised his voice and said “I don’t care. Yous have already made a decision not to let me see the kids. Just make sure they know I love them”.
I asked “Why do you think that?” He said “Because you’re all busy making sure everyone knows I am the world’s worst person so if I can fuck it up I don’t care. So if I am so fucked up I don’t care.” The hearing resumed at 2.30 pm however the father had another outburst in the witness box and said “I won’t let her ask me anymore questions. She doesn’t treat me like a person. I won’t be back”. He was referring to Ms Gilles Counsel for the mother.
The father did not accept the boys are genuinely fearful of him and do not want to live with him. He said [Y] says “he wants to stay with me and [X] wants to stay with his brother”. He didn’t accept his children were affected by hostility. The father said “I have never hit the wife. I understand there has been so much violence, holes in the wall, breaks and things, hitting each other but I’ve never hit her. We’ve had arguments. I stopped seeing the children because I did not want her to come to my house”.
Mr Sperling tried to focus the father to on the benefits of a slow re-introduction to the boys as he had not seen them for six months. He would not go to a Centre because “it was artificial. You can’t play. You can’t kick a ball or anything”. He could see no benefit at a Centre. It could be at a relative’s house.
The Independent Children’s Lawyer asked “If the Court makes orders you don’t agree with will you see the boys?” The father said “Depends on what I get. If I am only going to see the boys once a fortnight for two hours it is not worth the heartache for me or the boys so I will not spend time with them”.
Dr Vardanega agreed it would be very disappointing for the children if their father walked away from them. She was unaware he had voluntarily ceased to see them in January 2008. She agreed that sole parental responsibility needed to reside with the mother because there was no communication and reiterated that it is most important that the children be safe.
Dr Vardanega was unaware the father had had ten admissions to a mental health unit and that the police had escorted him and scheduled him on each occasion. He did not tell her of the violent outbursts he had since age five and she was unaware of the distressing tale of violence and threatening behaviour by the father in the police notes.
The father was not truthful to Dr Vardanega or the Court because he is not truthful with himself. Dr Vardanega had believed the mother was putting tales into the children’s head and being unjustifiably fearful.
The reality is that the children’s anxieties are their own and their fears and their mother’s fears are justified. They are real. They are based upon what they have seen and observed of their father’s behaviour towards their mother, Ms H and towards them. The mother’s concerns are well founded and are those of a properly concerned parent.
The mother has been significantly traumatised by this man and his appalling conduct towards her and her children. The children have been traumatised by him.
Dr Vardanega agreed that after hearing the evidence of which she had been unaware that although it was important for the boys to spend time with their father there must be protections in place. That is the gravamen of the issue. These children cannot spend time with their father unless it is supervised. That cannot take place because the father said when Mr Sperling was putting his submission to the Court on this very issue “I’ll make this easy for yous. I’m not going to jump through these hoops. I’m out of here. Just make sure the boys know that I love them.” and that was the end of the hearing.
Findings
The father left the hearing before submissions were finished by both parties. He could no longer tolerate being told what to do by authority. That is the father’s life history from the age of five. The father has no capacity to conduct himself in an appropriate way in front of his boys. He has no capacity to protect the children from his own anger, aggression and mental health issues.
He produced no evidence to the Court as to the state of his mental health. He minimised his mental health issues and lied to Dr Vardanega in relation to that matter and his significant history of violence as reported by the police. He blames others for any violence issues or poor behaviour yet says to the Court he is now well. He has not satisfied me that he is no longer a danger to these children.
This is a father who is a significant danger to himself and his children and any one else who crosses his path and who does not, to use his words, “treat him like a human” and that includes anyone in authority. If these boys try to controvert their father as they grow older and voice a difference of opinion he will either hurt them, or as he did in January 2008, turn his back on them, walk away with a beer in his hand and shut the door in their face. This is not behaviour these boys should be subjected to.
Their mother has sufficient difficulties with parenting the boys as it is due to their special needs. It is abundantly clear she will now be in the position of solely, physically and emotionally caring for these boys. The father has again abandoned the children because he cannot come to terms with his own appalling behaviour and significant difficulties.
In those circumstances the primary considerations I must have regard to do not permit me to make any orders to enable the boys to spend time with their father.
The boys will not benefit from a relationship with their Dad at this time because they are in physical and emotional danger from his behaviour in an unsupervised setting. In these circumstances I need traverse no other matters than those set out in sections 60CC (2) (a) & (b) of the Family Law Act 1975 (Cth).
On the evidence I cannot discharge my duty to the children if I make any order for them to spend time with their father when I have regard to the primary considerations under the Act and thus there will be no order.
I certify that the preceding one hundred and sixty-four paragraphs (164) are a true copy of the reasons for judgment of Henderson FM
Associate: Maryrose Portelli
Date: 20 August 2008
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