Pegg and Pegg

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEGG & PEGG

[2017] FCCA 402

Catchwords:
FAMILY LAW – Parenting – where father has not spent time with children for several years – where father presents a risk of harm to the children – where no contact or communication ordered.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS PEGG

Respondent:

MR PEGG

File Number:

WOC 503 of 2010

Judgment of:

Judge Altobelli

Hearing dates:

9 and 10 February 2017

Date of Last Submission:

10 February 2017

Delivered at:

Wollongong

Delivered on:

5 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Antoinette Campbell Legal

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Mr Stagg

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ORDERS

All previous parenting Orders are discharged.
The Mother have sole parental responsibility for the children, X (born (omitted) 2001) and Y (born (omitted) 2004) (“the children”).
The children live with the Mother.
The Father spends no time with or communicates with the children.
The Father is restrained, pursuant to section 68B of the Family Law Act 1975 from:-
(a)Attempting to contact the mother or the children by any means, including through a third party;
(b)Approaching, or coming within 100 metres of any place where the mother or the children might from time to time reside;
(c)Approaching, or coming within 100 metres of any school which the children might attend or at which they are enrolled;
(d)Approaching, or coming within 100 metres of any place where the children participate in an extra-curricular activity; or
(e)Approaching, or coming within 100 metres of the mother’s place of employment.

IT IS NOTED that publication of this judgment under the pseudonym Pegg & Pegg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 503 of 2010

MS PEGG

Applicant

And

MR PEGG

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X, who is now 16 years old, and his brother, Y, who is twelve and a half. The application is brought by their father who is 43 years old, lives in (omitted), New South Wales and is a Pensioner. The Respondent is the children’s mother. She is also 43 years old, lives in the (omitted) of New South Wales and describes herself as a (occupation omitted).
The relationship between the parents commenced in 1991. They married in 1999 and separated towards the end of 2007.
This case is about whether, and if so under what conditions, the children should spend time with their father. These reasons for judgment explain the orders that the Court has made.

Background

There are relatively few contentious facts in this case. Unless indicated to the contrary, the matters set out in this section represent findings of the Court.
After physical separation in the beginning of 2008, the parents implemented an informal parenting agreement whereby the children would live with their mother, and spend every second weekend and two nights each week with their father.
In 2009 each parent re-partnered. The parents were divorced in August 2010.
In November 2010 the Father decided to move to Victoria with his new girlfriend and, in effect, asked the children to choose who they wanted to live with, without first consulting the Mother. In fact the Father called Y’s school and told them he would not be attending the following year, and he enrolled Y in a school in Victoria. The Mother did not agree to this and eventually the Father moved to Victoria with his girlfriend without the children.
The children had frequent school holiday visits with their father throughout 2011 and 2012. During these school holiday visits the Father constantly asked the children when they were going to come to live with him.
In January 2013, against the Mother’s advice, X moved to Victoria to live with his father and his father’s girlfriend. However, he returned to his mother in August 2013, at the Father’s request. Apparently the Father’s relationship with his girlfriend had broken down in this period.
In September 2013 the Father had formed a new relationship and returned to New South Wales. Eventually the parents resumed an earlier parenting arrangement in which the children spent each alternate weekend with their father, and half the school holidays.
In December 2013, X unexpectedly told his mother that he was going to live with his father. Indeed X told his mother that he was moving because he had been diagnosed with Autism while in the care of the Father, and that she (the Mother) was not helping him cope with his illness. The Father had told X he could enrol him in special classes and look after him appropriately. The police were involved in the collection of X from his mother’s home.
It transpires that X’s move to his father’s home was a plan that had been made several weeks before, overheard by Y, who then reported it to his mother after X had left.
By February 2014 the Father could not handle X and told the Mother that X would need to return to her care. This took place on 22 February 2014. X was very apologetic to his mother explaining that the Father had turned him against her and the Father kept telling him lies about the Mother and her partner.
On 9 May 2014 the Father attempted to take his life in bushland. What happened that day is as follows: the Father texted the Mother early in the morning asking to see the children and to speak with her. They met with the Father at the highway turnoff to (omitted), near the Mother’s home. The Father handed to the Mother his keys, keycards, PIN numbers, $600.00 in cash for the children, and an address to find his belongings. He told the Mother that he had broken up with his girlfriend, Ms A. He wanted to take the children to school, but the Mother declined. She left with the children. The Father was crying at the time.
While the Mother was driving the children to school she received a text message: “I’m just off the highway, so sorry to do that. Please let the boys know I will always be with them and that you 3 were my only love.” The Mother responded with messages of encouragement and checked up on him during the morning. After dropping the children off to school she notified the police regarding her concerns.
At about 10.03 am the Father texted the Mother about X's Ritalin tablets saying she was trying to sell them. The Mother interpreted this text to mean that the Father was alleging that his partner, Ms A, was trying to sell the tablets.
During the day the police attended the Father’s home in (omitted) and spoke to Ms A. The Father was not there. They went to his workplace. He had not been there all day. The police traced the Father’s mobile to the (omitted) area and conducted a search in the surrounding bushland. Assisting in the search was the Mother’s partner, Mr A, who was a member of the (omitted).
As it turns out the following morning, i.e., 10 May 2014, it was the Mother’s partner, Mr R, who located the Father’s car in the (omitted) area. The Father had locked himself in the car and was unconscious. Mr A contacted the police and ambulance services and led them to the Father’s location. The ambulance services revived the Father at the scene and took him to (omitted) Hospital before he was transferred to (omitted) Hospital in intensive care. The Mother was later informed that the Father had taken over 200 tablets of sedatives and painkillers. The Father was discharged from hospital around 13 May 2014.
The Father says he has no recollection at all of what happened between 7 and 11 May 2014.
The children found out about what happened to their father and were quite distressed. The Mother did not resume the pre-existing parenting arrangement as she was, understandably, concerned about what had happened.
On 29 August 2014 the Father went to Y’s school, but he was not permitted to see Y. Later that day the Father returned, together with his partner Ms A, demanding to see X but was again denied.
On 9 January 2015 the present proceedings were commenced. On 22 July 2015 the Court made orders by consent providing for the Father to spend time with both X and Y from 11 am to 3 pm on specified dates, and thereafter by agreement. A condition was that the Father not disparage the Mother during visits and that the Father not bring the children into contact with his partner, Ms A, or her son. The children were to otherwise live with their mother.
The Father spent time with the children on 1 August 2015, the first specified date. He returned the children late and had been disparaging the Mother to the children. The children were upset about the visit. The Father’s partner, Ms A, attempted to contact X by telephone after the visit.
On 31 August 2015 the Family Report interviews took place. The family attended on Dr A pursuant to an order made by the Court. Dr A made a number of recommendations in her report dated 14 September 2015 which included that the Mother have sole parental responsibility, that the children live with her and have no contact with their father until they are 18 years old. Dr A did postulate an alternative, however, that the children could have two or three visits with their father each year on certain conditions. Dr A’s report will be discussed in more detail later in these reasons.
There follow a number of communications from the Father to the Mother. These communications will need to be examined carefully in the evidence because the Father puts in contention whether he was the author of these communications, be they by text, email or Facebook.
On 2 December 2015 the Father filed a Notice of Discontinuance of the proceedings.
The next day, however, the Mother received an email from the Father’s partner, Ms A, stating that the Father was struggling and requesting that she resume contact between the children and the Father. A few days later, on 8 December 2015, the Father emailed the Mother enclosing a letter from his doctor, Dr S, suggesting that the Father’s suicide attempt was in fact a side effect of the medication that he was on at the time, Pregabalin.
A few days later the Father emailed the Mother to say that he was moving to (omitted), where he now lives, and requested contact with the children. Yet a few days later, on 19 December 2015, the Father emailed the Mother. In this email he blames his now ex-partner, Ms A, for most of the trouble caused over the last 2 years, and requested contact.
The matter came before the Court on 15 February 2016, and the Court ordered that previous orders for the children to spend time with and communicate with the Father be suspended. Since 15 February 2016 the Father has had no contact or communication with the children.

The Competing Proposals

At the hearing the Mother was represented by her solicitor, and her Counsel, Mr Cook. The Mother’s proposal was that she have sole parental responsibility, that the children live with her, and have no contact with the Father, other than letters, cards, pictures and gifts using the agency of the Mother’s solicitor, and no more than four times each year. The orders placed conditions on the nature of the communication between the Father and the children. The detailed orders proposed by the Mother are reproduced in the first schedule to these reasons.
The Father represented himself at the hearing. The orders that he proposed are contained in his Response filed 3 February 2017. He proposed spending time with the children two or three times each year in a public venue to be determined by the Court, and supervised by one of his close family members. As it turns out, however, during the Father’s evidence it became apparent that his actual proposal was not limited to the orders sought in his Response. Indeed, he viewed the orders set out in his Response as merely the starting point, as he was hopeful that the Court would progress his time with the children from being short periods of supervised time, to unsupervised time, and then progressing onwards from there.
The children were represented by an Independent Children’s Lawyer, Ms Evans. Mr Stagg of Counsel appeared on her behalf at the hearing. The Independent Children’s Lawyer’s proposal was that the Mother have sole parental responsibility, that the children live with her, and the Father spend no time with or communicate with the children. In addition, the Independent Children’s Lawyer proposed a number of injunctive orders against the Father. The order proposed by the Independent Children’s Lawyer is reproduced in the second schedule to these reasons.

The Evidence

In the Mother’s case she relied on her affidavit of 27 January 2017. The Mother was not required for cross-examination even after the Court had indicated to the Father that if he did not cross-examine the Mother the Court would, in all likelihood, accept her evidence.
The Father relied on two affidavits, his filed 27 February 2017 and one of Mr P, his uncle, also filed that date. Both gentlemen were extensively cross-examined. The Father’s evidence will need to be discussed in detail below.
The evidence of Mr P can be dealt with shortly. He was an impressive witness and if the Court were to find that supervised contact was in the interests of the children, he would be a suitable supervisor. He enjoys a close relationship with the Father and appears to have a stabilising influence on his life. It is clear, however, that the Father had not told him about many of the difficult and troublesome features of this case. Indeed, even Mr P very wisely acknowledged, after he had been given the Mother’s affidavit to read for the first time, that the case was far more complicated than he thought. Whatever the outcome of this case, the Father should be very grateful for the stabilising and reassuring influence that Mr P brings to his life.
The only evidence in the Independent Children’s Lawyer’s case was the Child Inclusive Conference Memorandum produced by Family Consultant Ms S, dated 6 May 2015, and Dr A’s report dated 8 September 2015. The contents of Dr A’s report will be discussed in more detail below. She was cross-examined.

The Applicable Law

In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Dr A

It is appropriate, the Court believes, to deal with Dr A’s evidence at this stage of the reasons, and to a certain extent independently of the remaining evidence. This is not because Dr A’s evidence has a special status, but it is because she was the only witness in this case who was truly independent, as well as an expert. Ultimately, however, what the Court makes of her recommendation depends on the Court’s findings of fact. Dr A’s executive summary foreshadows many of the key issues in this case. Whilst there appeared to be, for example, a mutually affectionate relationship between the Father and his sons as at the time of the report interviews (13 August 2015), the nature of attachment between the Father and the children was described as anxious. Dr A signalled concern about the Father’s excessive self-focus, rather than child-focus, and his hostile-obsessional attitude about the Mother. Dr A expressed a concern that whereas the Mother sought to honour the children’s love for their father, the Father seemed to undermine the children’s relationship with their mother and denigrated her. Dr A thought that the Father’s parenting capacity, i.e., to provide for the children’s physical, emotional and intellectual needs was inadequate and that there would be a real psychological risk to the children if their time with the Father was unfettered. She expressed concerns about what she described as the Father’s maladaptive personality traits, inflamed by his existing health issues. She described him as “psychologically destructive to his children, and without insight”. She expressed the professional view that there was no possibility of the parents being able to cooperate as parents and thus sole parental responsibility was indicated. She was concerned that the children would feel guilt and anxious about their father if they never received news of him, hence the importance of keeping some communication channels. Alarmingly, Dr A did not exclude the risk of filicide.
The Father’s self-harm attempt on 9 May 2014 became an important focal point for Dr A. She was particularly concerned that the Father had sought to involve the children, who were present in his conversations with the Mother that morning. His post self-harm attempts to see the children at school were likewise of concern. His perception that the Mother had unjustifiably denied him contact with the children, in the circumstances of his self-harm attempt, was disconcerting.
The challenges of deciding this case are poignantly summarised at paragraph 14 of Dr A’s report:
14.The children greeted their father (they had [not] spoken to him for a year) happily in the presence of the family consultant. The father cried and apologised for having scared them. Y and X forgave him and spoke about ways in which they could communicate with their father in the future.
It is clear that there was affection between the Father and children. A recurrent theme of the Mother’s interviews with Dr A was her concern about the Father’s denigration of her in front of the children, on a seemingly relentless basis, taking every opportunity that he could. The Mother reported that the boys would often report with concern that these things had been happening during their time with the Father.
Some of the Father’s attitudes at the hearing were clearly also manifested during the report interviews. Some distorted thinking on the Father’s part is also evident. For example, at paragraphs 24-26 of Dr A’s report:
24.Mr Pegg explained that he was not seeking custody only regular, unfettered access to his sons. He explained he wants fortnightly visits, the right to contact the boys at any time by any means, to be put on the enrolment list at the boys’ schools, for their telephone numbers and email address. He said he was happy for the children to live with their mother as long as she did not censor his communications with X and Y, does not fight in front of the children or drink drive with the children. He emphasized he feared the children would be killed in a car crash as result of Ms Pegg and Mr R’s drink driving. He told me a long story about a picture of the couple near a bonfire with large supplies of drink. He also complained that no liver function tests had been ordered for Ms Pegg and Mr R to prove their alcoholism.
25.Mr Pegg is of the view that Mr R has caused his co-parenting relationship with Ms Pegg to deteriorate and that Ms Pegg will become “ more reasonable” when that relationship ends – which he predicted would be as soon as Mr R discovers “ she’s cheating on him.” Mr Pegg alleged Mr R is a wife beater as well as a drunk. He claimed that despite his numerous ROH reports on this score there was no police reports of DUI or DV because Mr R was in the (omitted) and drank with police officers who suppressed the evidence. He said the Police Integrity Commission would be involved by the time of Final Hearing. He also expressed great resentment of Mr R acting in loco parentis. He said that “Mr A has not hurt the boys but is strict and unfair” claiming he had supporting evidence for that statement because he had recorded his conversation with the boys during “the whole four hours last weekend”. He showed no awareness of how intrusive and inappropriate it was to treat an access visit with his children as a forensic interview.
26.Mr Pegg did not acknowledge that Ms Pegg could validly have thought she was acting protectively in withholding the children on and after 7 May 2014. He asserted repeatedly that all child protection concerns should be allayed by medical opinion that he made an “accidental” and “non-intentional” suicide attempt as a result of being prescribed a high dose of Lyrica by a doctor who did not monitor his mental condition. He provided a long explanation about why that particular GP did not have his best interests at heart. When invited to speculate about the impact of the suicide attempt on X and Y could not address the task rubric. First, he blamed Ms Pegg for informing them, then said he was “never allowed to discuss it.” After repeated probes he agreed the boys would have been “hurt, shocked” and said that he wanted to know how they feel now. He did not explain why he had not shown more curiosity or sensitivity about their feelings during recent visits.
Dr A observed, for example at paragraph 27, that when the Father was given the opportunity to speak freely of the Mother, he was unable to identify any strengths of her as a parent and criticised her unrelentingly, no matter what topic was introduced. Dr A’s impression was that he blamed the Mother entirely for the dispute, and resented her greatly for thwarting his relationship with the children.
Dr A administered some psychological tests. She found the Mother’s capacity for parental reflective function to be within the normal range. By contrast, however, she found the Father’s capacity to be not normal. She records at paragraph 33:
33.Mr Pegg’s capacity for parental reflective function is not normal. While Mr Pegg does not make the hostile misattributions about his children which are often associated with grossly pathological caregiving, his distorted, obsessional thinking about the mother as a malign influence on his sons prevents him from considering his children as separate beings with minds of their own. He could not answer questions about his children’s feelings, views, needs or behaviour pertinently or succinctly. Invariably he digressed rapidly from the topic under review (e.g. the impact on his children of his suicide attempt) to diatribes against the mother (i.e. for inappropriately informing the children) and provided excessive detail on tangential topics while failing to address the issue probed. It was difficult to re-direct him back to the task. Mr Pegg did not orient his answers correctly with respect to time, place or participants – for example he answered questions at his children’s future with respect to his ex-wife’s past conduct (during the marriage). Mr Pegg’s discourse style suggests that he is someone whose state of mind with respect to attachment is unbalanced due to his preoccupation with unresolved relational loss and trauma – presumably starting in childhood, then exacerbated by family break-up and further aggravated by subsequent adverse life advents. (My methodology does not support a specific adult attachment classification. Due to operating limits I did not administer a gold standard adult attachment measure such as AAI.
Dr A was specifically instructed to explore the children’s views. X, who was 14 at the time, made it clear that he would not consider living with his father again. He recounted experiences of spending time with his father in which most of the time was spent “bagging them out”, referring to the Mother and her partner. He explained that whilst he loved his father and would attend daytime visits only, he also said that “I won’t worry if I don’t see him”. Y, who was 11 at the time, presented confidently. Without prompting, Y expressed concerns about his father: “I’m worried about Dad. I wish he wasn’t this bad. I wish we had a normal family.” He indicated that he wanted short visits with his father to continue, but was afraid his father would not obey Court orders. Dr A observed that Y seemed very anxious about his father. He reported that on the night of his father’s suicide attempt he had not been able to sleep. He indicated he needed to see his father regularly to know he was well, but at the same time found his father’s nagging about mum tiresome.
In her professional opinion, Dr A stated that the Father was not capable of adequate protectiveness as a parent nor of a civil, rational collaboration as a co-parent, and thus the Mother should have sole parental responsibility. She could discern nothing from the material drawn to her attention which suggested a risk of harm to the children in her care.
It is important to reproduce the significant parts of Dr A’s opinion, commencing at paragraph 88:
88.Unsupervised weekend or holiday visits to the father are not deemed to be a safe option and the boys are not willing to attend such visits. They ask for short daytime visits with their father, but even spending limited time with their father is likely to be uncomfortable. It is my concluded opinion that Mr Pegg will not able to restrain himself from emotionally abusing his children by pursuing a campaign of denigration against Ms Pegg.
89.Since separation Mr Pegg’s star has fallen while Ms Pegg’s star has risen. She is gainfully employed and has built a life in a new home with her partner. Mr Pegg’s personal circumstances have progressively worsened. He suffers chronic pain as result of a workplace injury for which he is seeking compensation. The literature about chronic pain suggests that personality disorder predicts poor response to pain management, that chronic pain aggravates both depression and marital discord - predicting decompensation under stress. In my clinical experience individuals who have suffered workplace injury are in a “damned if you do/damned if you don’t” double bind. During the rehabilitation/ compensation process they are disadvantaged both by improvement in their compensable conditions and by deterioration in those conditions. Usually they cannot recover to the fullest extent possible until their claims are settled, and in the process they suffer loss of income, loss of occupational identity and loss of personal sovereignty as their schedules are dominated by medical appointments and demands from the insurers and Centrelink. Currently all Mr Pegg’s resentment about the slings arrows of outrageous fortune is directed at Ms Pegg, who flourishes while he suffers. This is likely to worsen as he pursues his worker compensation claim.
90.It is my concluded opinion that Mr Pegg will relentlessly attempt to alienate the boys from their mother if he is permitted to converse or communicate with them privately. Y and X are not real in Mr Pegg’s mind because he is too self-focused to be child-focused. Therapy or psycho-education will not help Mr Pegg develop self-restraint. Firstly, because he deliberately dissembles judging by the inconsistent, incomplete history he has given to different mental health professionals. His unwillingness to frankly self-disclose does not enable clinicians to make valid risk assessments or accurate diagnoses. Secondly, Mr Pegg is deluded and lacks insight. His identity is too diffuse and his self-esteem too fragile for him to be open to corrective feedback. His persecutory delusions defend him against self-loathing. If his only alternatives are righteous indignation or suicidal despair it is safer for him to hold a grudge against Ms Pegg. Mr Pegg has behaved in psychologically destructive ways towards his children and is also incapable of the reparative fathering (see APPENDIX II) needed to make father-son interaction safe and comfortable again. This is a sad loss for his sons who long for the return of their “awesome Dad”. As hope is not a method the children’s wishes cannot be the determining considerations, however.
91.Two major developmental tasks to be completed during the transition from adolescence to young adulthood are establishing an educational pathway towards a career and developing self-direction / psychological independence from parents. These tasks are best achieved in a calm, stable home with the assistance of psychologically mature parents who can wisely balance the needs of both generations. Mr Pegg is not such a parent. His life stress is high and his ego-strength is weak. He will not be able to assist X and Y individuate psychologically. In relationship with their father X and Y are not allowed to have priority in their own lives. They are susceptible to invitations from their father to put their own needs aside in order to take hyper-responsibility for his concerns. Y and X would have to falsify themselves to maintain a harmonious relationship with Mr Pegg. He would stunt their growth.
92.Although Mr Pegg has not been acting in his sons’ best interests for some time, Y and X still cherish the good times. It would be unfortunate if they lost Dad past, Dad present and Dad future. X and Y are upset by their father “bagging Mum.” Eventually, his program of relentless denigration might force them to defect in order to resolve an intolerable loyalty conflict. The guilt and sorrow could be excruciating, perhaps also harmful to self-esteem. This may be especially true for Y as X may well feel he has already paid his dues. If their father is allowed to hurt Y or X beyond repair now they may not find a way back to him in later life. The cognitive capacities which underlie the ability to make objective evaluations of attachment relationships first emerge at adolescence in individuals of normal intelligence, but young people with disturbed attachments may not be emotionally free to make objective evaluations before adulthood. Yeats’ line “A pity beyond all telling is hid in the heart of love” points to the dilemma of self-sacrificing children in role-reversed relationships with narcissistic, extremely needy parents. At their current ages X and Y struggle to balance compassion, justice and rational self-interest in their relationships with their father.
93.Life is long. A moratorium on contact for several years might avert irreversible damage to the father-son relationships. By late adolescence or early adulthood Y and X may have developed the psychological resources needed to stay emotionally connected to both parents without losing peace of mind or sacrificing life chances. In the meantime would be better for X and Y if contact with their father was limited by the Orders rather than in left to their mother’s discretion. It would be easier for X and Y to hear their father revile the Judge than to hear their mother reviled.
94.A decision-making tool (see APPENDIX I) was used to weight the indicators for and against contact safety on the basis of the aggregated findings of this assessment. According to my weightings the risks of even limited contact with their father (such as monthly daytime outings) exceed the benefits to Y and X. It will be in their best interests to have no contact with their father until they are 18.
95.If the Court is persuaded that contact is warranted to stop the boys worrying about their father or concluding that Mr Pegg has been cast off discourteously, then 2-3 visits p.a. in a public venue supervised by an acceptable family member may be infrequent enough to minimize harm yet frequent enough to assuage any guilt the boys might feel about thriving with their mother’s care while their father fails to thrive without her care. This is not an endorsement. No options are risk-free.
96.For the same reasons, Y and X could post their father newsletters at the end of each school term, birthday, Father’s Day and Christmas greetings. Mr Pegg could post birthday and Christmas greetings which include short news bulletins about his health and welfare.
97.Unfettered telephone and email contact between Mr Pegg and his sons also contraindicated. Ms Pegg should not be asked to relay censored telecommunications or he will only hate her more.
Dr A was cross-examined by both Counsel, and by the Father. The following emerged from her cross-examination:
·After the report was released the Father’s partner, Ms A, rang Dr A expressing concern that the Father would be angry about Dr A’s report, and would blame her, ie, Ms A, for it. Dr A explained that both Ms A, and indeed Dr A, were concerned about what he might do, and Dr A gave some appropriate advice. Dr A reported, however, that Ms A had said words to the effect that she (Dr A) was absolutely right. Ms A sounded upset and concerned. The conversation took place late in November which was, apparently, after Ms A and the Father had separated which, Dr A mentioned, was consistent with a comment Ms A had made.
·Dr A was taken to a Facebook entry on the Father’s Facebook page. The character of the entry may be described as toxic, as the evidence to be discussed below will indicate. Whilst these toxic communications are found on the Father’s Facebook page, he contends that Ms A by his then former partner, had access to his account and had in fact authored the entries in question. This was explained to Dr A. She was asked whether there was anything in her assessments of either the Father or Ms A, which might inform the issue of who, in fact had authored the entry. Dr A explained that Ms A had a history of erratic behaviour and it is possible that she might have wanted to blacken the Father’s name, after the end of their relationship. Dr A observed, however, the similarity of the wording between the disputed entries, and the rest of the Father’s entries on his Facebook page. She observed that in her experience, it was the sort of thing that a disgruntled father would say on receipt of an unsatisfactory report. Dr A did say, however, that the Court could not rule out, however, the possibility that Ms A had in fact written the communication. She thought it odd, however, that Ms A would author such a toxic entry two weeks before ringing Dr A and expressing concerns about the Father’s mental health. She explained, however, that the Father’s mental state at the time of releasing the report was likely to be irrational and overwrought. Nonetheless, Ms A’s behaviour in both allegedly writing one of the posts, but then ringing Dr A clearly concerned about the Father, was somewhat inconsistent.
·Counsel put to Dr A the evidence that the Father had given about his contrition for his past behaviours, especially his attitude towards the Mother, and his belief that he had changed. Dr A expressed concern about mere words, unmatched by actions. Moreover, she was concerned about the ages of the boys, and suggested that in fact they were too old for any orders. Her view was that they will spend time with their father when they are old enough. She was sceptical about people who claim to change quickly. In the Father’s case, she suggested that real change would involve an appreciation about how his actions have caused the Mother and the children to feel as they do, as well as appreciate that he needed to wait.
·Dr A thought it was important for no contact to be pursuant to an order that the Court makes. This means the Mother could explain it to the boys on that basis and thus counter any future representation by the Father to the boys suggesting it was something that the Mother did.

At the end of her cross-examination Dr A was of the view that the Father should not have contact with the children, at any time.

Meaningful Relationship

All the evidence indicates that the children and the Mother enjoy a meaningful relationship with each other. Not even the Father put this in contention. The situation as regards the Father is far more complex. Clearly the relationship between the Father and the children has broken down. Whether this is because, as the Father asserts, the Mother has facilitated this taking place, or whether, as the Mother asserts, the Father has successfully estranged himself from the children’s lives because of what he has said and done, is not necessarily pertinent to the present issue. The Court concludes, however, based on all the evidence before it, that it is the Father’s actions, and not the Mother’s, that has led to the present broken relationship. The expert evidence of Dr A suggests, at the very least, that there is an affectional bond between the Father and the boys, and there is every prospect that in future, and based on a timetable set by the boys themselves, there will be a future relationship. The focus is on whether there is a benefit to the children of having a meaningful relationship with their father? There seems no dispute that, in theory, there is a benefit. The real issue in this case is whether there is a risk of harm.

The Mother’s Evidence

The Mother’s evidence is contained in her affidavit of 27 January 2017. She was cross-examined by Counsel for the Independent Children’s Lawyer, but the Father declined to cross-examine. The Court found the Mother to be an impressive witness. She was at all times responsive. Her answers appeared to be full and frank. At no times did she appear to bear any resentment towards the Father and, indeed, at times she seemed to be quite concerned about him. However, her focus was on the children.
She explained that the boys are progressing well at school. They do not mention their father much, though they were aware of the Court case as the Independent Children’s Lawyer had a teleconference with them. She explained that whilst Y was willing to have some form of contact with his father, X said that he had “had enough”. She accepted the validity of the Independent Children’s Lawyer’s impression of Y that he was worried about his father. She emphasised that she supported the children’s views, but her biggest concern remained the Father’s denigration of her, and that he would take every opportunity with the boys to put her down. She was concerned because this would confuse the boys, as had happened in the past. They would ask: “Why would Dad say these things?”
The Mother explained that her relationship with Mr R ended in January 2016. It was an amicable separation, and he continues to be a male figure available to the boys. She emphasised that he was a positive role model, and there had been nothing about their relationship which was in any way negative, including family violence.
The Mother was asked for her views about the Father spending time with the children two or three times each year. She was open to this, provided it was under supervision, and provided the boys wanted to go. She thought this might be an issue for X, but for Y it would put his mind at ease.
The Mother was asked about the concerns expressed by Dr A in her report about the Father’s potential for violence. The Mother’s response was both interesting and insightful. She explained that she found this part of the report quite surprising and had never seen him violent. Her concern, however, was the Father’s continual hatred for her and where this might lead. The Court makes this observation – many a mother in the witness box in a similar position to the Mother in this case would have embraced the Expert’s concerns with both arms because it would have made her case much easier to establish. That is not what the Mother did in this case. She expressed genuine surprise. She did not think the Father would be violent, though she was concerned about where the Father’s hatred towards her might lead. The depth of the Mother’s character came to the surface as a result of this evidence. She impressed as being focused on the issue, i.e., the Father’s relentless denigration of her, rather than the person, i.e., expressing resentment or ill feeling towards the children’s Father.
Counsel asked her about the proposal for email communication. The Mother could see the benefit of this and initially indicated a willingness to vet the communication. But then in re-examination, when her own Counsel pointed out that this might result in the Father hating her even more, she conceded it might best be a role performed by someone else. Nonetheless, it was clear that she could see the benefit of some form of communication between the boys and their father, provided it was appropriate.
The Mother had real concerns, however, with telephone calls, text, and other forms of social media. She referred to the history of this matter in this regard, as set out in her affidavit. She reiterated that this form of communication with the Father had not been positive in the past. The boys had to change their telephone numbers.
Counsel asked the Mother’s opinion on what should happen if the children have limited supervised contact with their father a few times a year, but it did not go well. She thought that, having regard to the ages of the boys, they should decide for themselves. She emphasised that if the boys told her that they wanted to see their father, she would make that work. She expressed concern, however, about the boys being locked into an arrangement that they did not want.
The Court accepts the Mother’s evidence. Indeed, she was an impressive witness. If ever there was a case where a Mother might have been entitled to harbour strong resentment and ill feeling towards the children’s Father, this is such a case. None of that was apparent from the Mother. She was focused on the boys, trying to be protective of them, wanting them to have a voice, but wanting her relationship with the boys to be protected from what she considered to be the corrosive effect of the Father’s contact with them.

The Father’s Evidence

The Father represented himself in these proceedings. He came across as quite an intelligent man with a good capacity to articulate his case. He relied on his affidavit that was affirmed 24 January 2017. His affidavit presents his current life situation in a positive light. He says, in effect, that he is happily single and is purchasing a property with a view to renovate. He lives close by to his brother, and his aunt. He conveyed the impression of being both well settled, and well connected, in his local community at (omitted).
In terms of the Mother, he sought to convey in his affidavit that the relationship was now in the past, and his only focus was contact and communication with the boys. He was obviously shocked by Dr A’s report and denied that he would be capable of any physical harm to his children.
There are some odd features to his affidavit, especially where he deals with more recent history. For example, at paragraph 19 in which he gives evidence about X coming to live with him, and his partner at the time in (omitted). He makes the allegation that the absence of a police record of his request to attend in order to support X is explained by reference to the Mother’s then partner having friends with the local police “and I have been told that he may have asked to have it removed” (referring to the record). He acknowledges, however, that at the time he was depressed. Specifically, on 14 February 2014, he acknowledges that X moved back with his mother and he states: “I injured myself at work soon after and was in a poor physical and mental state. I commenced on Lyrica as my depression was bad. I do not recall feeling suicidal.”
At paragraph 20 he deals with the events in May 2015. The objective facts before the Court suggest this was a clear self-harm attempt on his part. He says, in effect, that he does not recall anything after leaving home at 5.55 am on 9 May 2015. He maintains, in effect, that his recollection of these events is based on reading a police report, hospital discharge summaries, and versions of the event from third parties. He attaches a number of documents, such as his discharge summary, but it is clear he takes exception to some of the matters recorded thereon, which is odd given that at paragraph 20 he says he cannot remember any of the events. For example, in the clinical summary section of the discharge notes he has written in upper case “not true” referring, it would seem, to the statement that he was “found unconscious lying on uneven ground in bushland.”
At paragraph 21 of his affidavit, he again cavils with the matters contained in the business records that he himself attaches. The Court simply observes that it is curious, indeed, that the Father deposes to not recalling any of the events in question, but somehow considers himself entitled to question the objective business records created by disinterested third parties who clearly did recall and recorded what happened at the time. There was a real sense in which the Father appeared to be out of touch with reality in relation to this evidence.
In the rest of his affidavit he gives his version of subsequent events, including, for example, the later interim orders. At paragraph 29, he attaches a report of a psychiatrist, Dr T, dated 23 June 2014. He explains that he had been seeing the psychiatrist for a work injury. He apparently injured his back and shoulder whilst at work, and this had psychological consequences. Dr T’s opinion is stated as follows:-
“In my opinion, it is likely the claimant dissociated and was overwhelmed when triggered by the relationship conflict the associated disruption of his work identity since the accident. Mr Pegg’s dissociation is likely caused his unusual behaviour which may have been an attempt at self-harm.”
At paragraph 29 of his affidavit, the Father quite oddly deposes: “I ceased seeing him as I was made aware of some unusual allegations regarding him.” The reference to “him” is to Dr T. He annexes a document being a Google search of “Dr T, comedian”. The logic in this is not apparent to the Court.
Before considering the cross-examination of the Father, it is important to recognise the potential significance of what the Father did not refer to in his affidavit. He does not refer to the circumstances of his filing of the Notice of Discontinuance in the proceeding, nor does he refer to his communication with both the boys, and about their mother in November and December 2015. The Father makes no reference to the matter being relisted on 15 February 2016 to deal with the potential impact of his Notice of Discontinuance. The Father himself makes no reference to his email to the Mother of 8 December 2015, attaching a letter from his specialist. The significance of all of this becomes apparent in the Father’s cross-examination.
Before the Father was cross-examined, however, and because he was representing himself, the Court granted him leave to give evidence-in-chief. It was obvious that this was a response to, and obviously necessitated by, the Mother’s evidence about what can only be described as toxic communication from the Father. The details will be discussed presently. In any event, in his evidence-in-chief, he categorically denied being the author of the communications in question. He says that his account had been hacked, probably by his former partner Ms A who he described as a “very abusive woman” who had gained access to his internet accounts through a phone of his that she had in her possession.
Specifically, the Father directed the Court to pages 54 to 55 of the Mother’s trial affidavit of 27 January 2017. This purported to be a Facebook entry on the Father’s Facebook page. His evidence was that the “whole thing” was not his.
The purported Facebook entry in the Father’s name is significant. It is too long to extract in these reasons for judgment, but some of the excerpts below provide a flavour of the entry, and give an insight as to their significance in this case, where the Mother’s main concern about the Father is his relentless denigration of her.
The Facebook entry is dated November 11 at 1.49 pm. He starts off by justifying the entry in the following terms:
I don’t like doing this, and I hate to see people putting their whole lives on FB, but if I can help just one person with my story, I will be happy, and it may stop a bit of sadness that is so painful not seeing my two beautiful boys, X and Y, that are screaming out to see me.
Later in the entry the Father introduces his theory that his suicide attempt was caused by a severe side effect of the drug Lyrica. He says:
I was discharged and we headed straight to the W/C doctor as soon as I could there…. He looked VERY shocked, and said “OMG, you’ve had the most severe side effect of the drug Lyrica”… I had committed suicide and was successful. I was dead for 15 minutes.
The tenor of his subsequent comments suggest that he blames his brother, Mr J, for reading his Facebook entries and conveying them to the Mother. In relation to the Mother he said:
The boys so-called drunken mother had beaten our eldest son in a drunken rampage some months before all of this happened to be.
He goes on to referring to her in the following terms:
… the so-called mother cheated on me numerous times we were together for 16 years. For those of you who know her and still talk to her, she first cheated on me with her 65 year old boss …
The Father makes some very threatening comments addressed to his brother, again on the basis that he has been watching his Facebook page on behalf of the Mother.
In any event, the Father was, unsurprisingly, cross-examined about the Facebook entry.
The Father could not explain when he became aware of the existence of this Facebook post. All he could say was that he signed himself out of Facebook when he did observe it. He made no attempt to have the post actually removed. The Father agreed that his contact with the children was suspended in February 2016, and he then agreed that he knew since November 2015 of the existence of the Facebook entry. He acknowledged that the matter came back before the Court as a result of concerns expressed by the Independent Children's Lawyer about the Facebook post.
The Father was cross-examined about the implied assertions he made both in his affidavit, and in the Facebook post (not extracted above) to the effect that the Mother’s partner assaulted him at some stage during the course of his suicide attempt and, inferentially, at the time of his so-called rescue. The Father explained that his theory was based on something the doctors had said to him. When pressed, he accepted that it was merely one possibility, and he was suspicious. The Father was challenged about the appropriateness of airing his suspicion based on a possibility on Facebook, and alleged that the Mother’s partner had assaulted him and that the police had covered it up because he was in the (omitted). The Father could make no sensible response. From the Court’s perspective it looked as if the Father was trying to join dots that simply did not exist.
The Father was likewise challenged about his assertion of the Mother’s drinking. It was very difficult indeed for the Court to understand what the Father appeared to be trying to say.
The Father was asked to confirm his evidence at paragraph 9 of his trial affidavit, i.e., “I abhor violence of any kind.” He confirmed that evidence. He was then taken to paragraph 137 of the Mother’s trial affidavit, in which she sets out a text received from the Father on or around 10 November 2015. The Father was taken to the text message. He acknowledged that he sent that message. The full text bears reproduction:
“Hope your happy taking the boys father away from them… i could call you a hooker but they get paid fot what they do but your too dumb for that…hope Mr A finds out that have cheated on him…both X and I seen it ourselves as he was getting your texts on his ipod whilst we were in vic hope Mr M in Melbourne was worth the beating Mr A is going to give you when he finds…cant even call you a cunt as they are useful…its probably too late for Mr A to see it on X;’s ipod as I told you to stop and you’ve probably deleted it… I just hope X stands up to you as he has in the past and let Mr A know you slept with Mr M in Melbourne (the boss of (omitted))… while you are hitting her Mr A guve her one from me…oh and for the record if you did save my life I thank you…just watch her texting and any of your mates…if you had any doubt Mr A I can assure you she’s cheated on you especially if any of your mates play an instrument or have more money than you. Well do you fucking dog of a so called mother.”
Counsel suggested to him that the Father’s statement that “Mr A should give her one from me” was inconsistent with his abhorrence of violence. The Father’s explanation was unresponsive, and in any event almost incomprehensible. The only thing that he said that he made sense was that, “I was frustrated.” He then tried to explain it by reference to his medication, particularly Lyrica, but then it was pointed out that based on his own evidence he was not taking this medication at the time of the message.
The Father was cross-examined about his denial that the Facebook posts were his. He maintained that the post of November 11 was entered by his partner at the time, Ms A. In particular, the Father asserted that Ms A made the derogatory comment about Dr A. Then he introduced the concept that Ms A actually did these entries in his presence.
The Father was then taken to an email which purports to be from him, to the Mother, dated Monday, 15 February 2016. The subject line is “My Boys”. The email says:
You pay some piece of shit to lie to me and the boys ….. I can’t wait till they find out ALL the lies you’re hiding ….. that’s all you and your family believe in, LIES!!!!!
And then:
THEY ARE GOING TO HATE YOU AND I CAN’T WAIT FOR THE DAY!!!!!! Go have a drink you two-cent hooker …. No, that’s right, you give it out gor nothing. Regards, Mr Pegg.
The Father agreed that he had separated with Ms A in October or November 2015. Notwithstanding that, he maintained that Ms A had authored this email and she had access to his Gmail account. He says that he did not become aware of Ms A hacking his account until much later and that there was nothing he could do about it. He agreed that the email account in question was the account he used for the purposes of the present litigation. He agreed he knew the account was compromised, and yet he did nothing about it, other than maintaining that he was not the author of the communication in question.
The Father agreed that he knew where his former partner, Ms A lived but he maintained he did not know that he could have issued a subpoena to her. He maintained that Ms A had hacked his mobile telephone, Facebook and email accounts. He then changed his mind and said that he did not know where Ms A lived but, when pressed, he agreed that he did.
His theory about Ms A being the author of the posts in question was tested when it was pointed out to him that, on the Father’s theory, not only had Ms A hacked the Father’s accounts and written the entries in question, but she then replied to those entries in her own name. He maintained, nonetheless, that Ms A authored both entries and she had two phones for that purpose.
The Father was then taken to what purports to be his email to the Mother of Saturday, 19 December 2015 at 3.35 pm. The subject line was “X and Y”. He agreed that this email was his. What is absolutely striking about this email, when compared to the emails and the Facebook posts that the Father protests were not authored by him, is their similarity in language, syntax, punctuation, and use of the upper case and exclamation marks. On the Father’s case theory, therefore, not only was Ms A fraudulent, but she was both methodical and sophisticated in her perfidy.

The Father’s evidence continued in the same tone as both Counsel for the Mother and Independent Children’s Lawyer moved from topic to topic. The inherent implausibility of what the Father was contending was obvious to the Court at the time, but certainly not obvious to the Father. The Court cannot rule out the possibility that he was, in this regard, a pathological liar.
This was a case where so much depended on the Court’s acceptance of the Father’s evidence, particularly his protestations that he had changed, that he had a positive attitude about the Mother and would not denigrate her in the presence of the children, and in relation to his denials about the poisonous, vitriolic communications about the Mother. Regrettably, the Court accepts none of the Father’s evidence on the key issues. Indeed, there were times when the Court formed the impression that the Father seemed to live in a world which was devoid of reality so far as his family was concerned. His attempts to reconstruct the history of this family were unsuccessful.

Meaningful relationship

The benefit to the children of a meaningful relationship with their Father is, in this case, questionable. In an ideal world, and if the Father had been able to show genuine contrition and remorse for his previous vilification of the Mother in the presence of the children, there would have at least been the prospect of the benefit of a future meaningful relationship. Regrettably, the evidence provides no such positive prognosis. There is no benefit, on the evidence before the Court, of the children having a meaningful relationship with their father. This may take place at some future time, on the initiative of the boys. In making these comments, the Court acknowledges that occasional communication by post is unlikely to create the foundation for a meaningful relationship.

Protecting the children from physical or psychological harm

There are aspects of the Father’s evidence that are truly concerning for the Court. It is possible that Dr A overstates the risk of filicide. Nonetheless, there are aspects of the Father’s behaviour both in the past, and even in the witness box that suggest instability and dissociation from reality. It is clear that the Father has suffered depression in the past and attempted suicide. It is possible that the full extent of any current mental health issues have not been identified. Whether any such mental health issues explain the Father’s abusive behaviour towards the Mother really does not matter as the focus is on protecting the children from the risk of the consequences of the same. Whilst the Court does not assess the risk of physical harm to the children from their father to be a great one, there is a risk of psychological harm. At the very least, the Court does not believe the Father has the capacity to control the ill feeling that he holds towards the Mother even now, many years after separation. If there were a benefit to the children in having a relationship with their father, any contact and communication would have to be carefully monitored.

The views of the children

The older child, X has made it clear that he does not want to have a relationship with his father. At his age, it would be unwise to make an order contrary to his views. Dr A gave clear evidence as to the need for an order to that effect so that all parties concerned know that it is the Court’s decision in this regard, and not the decision the Mother has made.
The situation in relation to Y is more difficult. He wishes things were not the way they are now. He seems quite concerned about his father. On the one hand he would like to spend time with his father, but on the other hand he fully realises his father would not obey Court orders about non-denigration. This is a case where Y’s views cannot be upheld, as the Court is so concerned about the risk of psychological harm to Y that it is not in his best interests for there to be physical contact with him.

The nature of relationships

It is clear that these boys have a very close loving relationship with their mother. She has been the most consistent presence in their lives. She is not only child-focused, but also adequately protective of them. She made it clear through her evidence that she respects the boys’ autonomy to not only express a view, but make decisions about their father. Theirs is clearly a healthy relationship.
The boys’ relationship with their father is far more complex. There is no relationship with X. The relationship with Y is tenuous, and indeed from Y’s perspective appears to be based on an idealised view of what the relationship was, rather than a realistic view of it. Dr A’s evidence made it quite clear that the boys would be unaffected by losing their relationship with their father at this point in their lives.

Participation in decision making

The Father absented himself from the boys’ lives at times, and then made selfish decisions in relation to Y and X at different times. In each case, the boys have decided for themselves to return to their mother’s care. The Father appeared to lead a chaotic, sometimes dysfunctional personal life which did not prioritise the children. He could have done far more to remain engaged in the children’s lives, but there was clearly a level of dysfunction that made it impractical to do so.

Parental obligations of support

The Father does not pay Child Support, and the Mother is left to provide for all of their needs. Some of the Father’s evidence about his financial aspirations lacked credibility. The prognosis for future financial assistance is bleak.

The likely effect of change for the children

To have made the orders proposed by the Father, or any version of them, would have subjected these children to what the Court considers to be an unacceptable level of change in their lives. The least change in their lives is to maintain the status quo and let the boys decide for themselves if, and when, they wish to resume a relationship with their father.

Issues of practical difficulty and expense

As the evidence suggests, the Father’s proposal was never going to be in the children’s best interests. Having regard to the evidence, the issues of practical difficulty and expense were not really canvassed. The obstacles would have been formidable, in any event. The Father lives in (omitted), the Mother in the (omitted).

Issues of parental capacity

There are no issues about the Mother’s capacity to provide for these children in every respect. There are serious concerns about the Father’s capacity. His actions demonstrate an inability to understand the importance to the boys of having their relationship with their mother affirmed by the Father, not undermined. The Father did not seem to understand the importance of consistency in the children’s lives.

Family violence

The Father’s relentless campaign of denigration of the Mother, and his toxic communications with, and about her, probably fall within family violence in s.4AB of the Act.

An order in the best interests of the children?

An order for sole parental responsibility is inevitable on the evidence in this case. Even the Father did not cavil with this, save to the extent of wishing to be kept informed of decisions about the children, and to receive information about them. The Court sees no benefit, however, to the children in this taking place. It might in fact be safer and more reassuring for the children, and indeed for their mother, if the Father did not know anything about them until such time as they are prepared to initiate the contact. The statutory presumption has been rebutted.
There is a risk of harm to these children. It is, in any event, not in their best interests for there to be equal shared parental responsibility. The Mother impressed the Court as being one who would exercise sole parental responsibility wisely.
There was no issue that these children would always live with their mother.
The only real issue for the Court is, as it turns out by the end of the hearing and a thorough consideration of the evidence in the course of writing these reasons for judgment, whether the Father should have any form of communication with the children given that it is not in the best interests of the boys to spend time with him. The Mother initially proposed that the Father could communicate with them by post. This could include appropriate birthday presents. The Mother proposed appropriate limits on the communication. The Mother’s child-focused focus resonates through her proposal.
The Independent Children's Lawyer’s proposal was, as it turns out, not only more strident but more reflective of the evidence as it was actually presented to the Court. The Independent Children's Lawyer’s proposal was for there to be no time or communication with the children. Indeed, the Independent Children's Lawyer proposed a series of injunctions in order to implement this. By the time of final submissions, the Mother’s Counsel indicated that the Mother adopted the Independent Children's Lawyer’s minute of order. She agreed, nonetheless, to provide to the Father school reports and to keep him informed about medical issues. That is commendable, but it is not an order that the Court intends to make, such are the Court’s concerns about the Father.
The orders in this case will be in accordance with the minute proposed by the Independent Children's Lawyer. Unless the Mother chooses to be more generous to the Father, it is the Court’s view that it is not in the interests of these children that they spend any time or communicate with their father, until such time as they choose to initiate this. The injunctive relief sought by the Independent Children's Lawyer is appropriate on the evidence before the Court and is proportionate to the concerns the Court has about the Father.

Orders

The orders are as per the Independent Children’s Lawyer minute.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 5 May 2017

Schedule 1

Order Proposed by the Mother

That the Mother have sole parental responsibility for the children namely X born (omitted) 2001 and Y born (omitted) 2014 ("the children").
That the children have no contact with the Father except as provided for in these Orders.
The Father may send to the children or either of them by post to the Mother's solicitor or other nominee advised by the Mother, communications such as letters, cards, pictures and gifts but not more than 4 times per year.
That the Father may send age appropriate birthday presents to the children or either of them by post to the Mother' s solicitor or other nominee advised by the Mother, once for the child X in (omitted) and once for the child Y in (omitted) each year.
Any communication from the Father to the children or either of them must be child focused and limited to age appropriate information about the identity and activities of the children's paternal family members and Father.
The Mother must facilitate the children or either of them receiving communications from the Father that are permitted by these Orders.
If the children or either of them expresses a wish to communicate with the Father, the Mother must permit and facilitate the children or either of them communicating with the Father by post, provided no such communication shall disclose the address, or any other contact details of the Mother and/or children.
On one occasion per year and no later than 30 September each year, the Mother shall send to the Father, by post, a recent photograph of each of the children and a description of each of the children's progress and interests.
The Mother shall forward to the Father by the first week in December each copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to the children.

10.For the purpose of Orders 7 and 8 herein, the Father shall keep the Mother's solicitor informed, by post, of his current postal address, noting that his current such address is (omitted) NSW.
11.That the Father be restrained by injunction from approaching the children or either of them, the children's schools and any sporting venue attended by the children or either of them.
12.That the Father be restrained by injunction from contacting or approaching the Mother or any member of the Mother's household, except as otherwise permitted by these Orders, until the youngest child, Y, attains the age of 18 years.
13.That the Father be restrained by injunction from attending any place of residence or employment of the Mother or the children or either of them until the youngest child, Y, attains the age of 18 years.
14.All applications be removed from the active pending list of the Federal Circuit Court.
15.All previous Orders be and are hereby discharged.
16.The Respondent pay the Applicant's costs fixed at $2,500.00 plus GST

Schedule 2

Order Proposed by the Independent Children’s Lawyer

Minute of Final Orders Sought

That all previous parenting Orders are discharged.
The mother have sole parental responsibility for the children, X (born (omitted) 2001) and Y (born (omitted) 2004) (“the children”).
The children live with the mother.
The father spends no time with or communicates with the children.
That the Father is restrained, pursuant to section 68B of the Family Law Act 1975 from:-

Attempting to contact the mother or the children by any means, including through a third party;
Approaching, or coming within 100 metres of any place where the mother or the children might from time to time reside;
Approaching, or coming within 100 metres of any school which the children might attend or at which they are enrolled;
Approaching, or coming within 100 metres of any place where the children participate in an extra-curricular activity; or
Approaching, or coming within 100 metres of the mother’s place of employment.

[2017] FCCA 402

5 May 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies