QUALEY & SHACKFORD
[2021] FCCA 17
•14 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUALEY & SHACKFORD | [2021] FCCA 17 |
| Catchwords: FAMILY LAW – One child aged 10 years – where the child has lived with father since separation in August 2016 – whether the father presents as an unacceptable risk of harm – mutual allegations of family violence – where the father alleges that the mother has harmed the child and/or failed to act protectively – long standing mental health issues of the father – finding made of unacceptable risk – final order made for sole parental responsibility to the mother – change of primary care to mother – final order made for child to live with the mother - interim order made for supervised time with the father. |
| Legislation: Evidence Act 1995 (Cth), ss.69ZT(1), 69ZT(2) Family Law Act 1975 (Cth), ss.4AB, 60B(1), 60B(2), 60CC, 61DA(2), 121 |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 Johnson and Page (2007) FLC 93-344 N & S and the Separate Representative (1996) FLC 92-655 |
| Applicant: | MS QUALEY |
| Respondent: | MR SHACKFORD |
| File Number: | ADC 426 of 2017 |
| Judgment of: | Judge Kari |
| Hearing dates: | 11 June 2019 12 June 2019 |
| Date of Last Submission: | 31 July 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 14 January 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Connor SC |
| Solicitors for the Applicant: | Adelaide Family Lawyers |
| Counsel for the Respondent: | Mr Dillon |
| Solicitors for the Respondent: | Andrew Hill & Co |
| Counsel for the Independent Children's Lawyer: | Mr Boehm |
| Solicitors for the Independent Children's Lawyer: | J Richard Croft |
ORDERS
Final Orders
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the child X, born in 2010 PROVIDED HOWEVER that the mother at all times advise the father in writing with respect to any decision she intends to make regarding X’s medical and allied health needs and/or his schooling.
That forthwith X live with the mother.
That pursuant to section 65L of the Family Law Act, a Family Consultant be appointed to meet with X and explain these orders, and to that end the mother shall facilitate X attending an appointment (or series of appointments) with Family Consultant B with the first to take place on 27 January 2021 or as otherwise advised.
That the mother forthwith make arrangements for X to attend upon a medical practitioner to obtain a mental health care plan and thereafter facilitate X attending a therapist.
That each parent be at liberty to receive all information, reports and photographs taken of X, from any school he attends.
That the mother provide a copy of these orders to any school that X attends.
That the mother provide a copy of these orders and reasons to any medical or allied health professional upon whom X attends.
That the parties be restrained and an injunction is granted restraining each of them from:
(a)Denigrating the other parent and/or members of their household to or in the presence of X and/or allowing any other person to do so.
(b)Discussing these proceedings with X or in his presence and/or allowing any other person to do so.
(c)Showing X any documents prepared or produced for the purposes of these proceedings and/or allowing any other person to do so.
Interim Orders
That until further order X spend time with the father on a supervised basis at such children’s contact service as nominated by the Independent Children’s Lawyer, and to that end:
(a)The Independent Children’s lawyer shall be at liberty to provide the service with a copy of these orders and reasons.
(b)The Independent Children’s Lawyer shall advise the parties in writing within 7 days of the service to be utilised.
(c)The parties shall within seven (7) days of advice from the Independent Children’s Lawyer do all things necessary to enrol in and be accepted into the service nominated by the Independent Children’s Lawyer, and provide confirmation to the Independent Children’s Lawyer that they have done so.
(d)The parties shall comply with all reasonable directions from the Independent Children’s Lawyers and/or the service and follow all guidelines regarding the use of the service.
(e)The Father shall spend supervised time with X at the service on the following conditions:
(i)Such time is not to commence any sooner than three (3) calendar months from the making of these orders.
(ii)The visits shall be of no longer duration than two (2) hours per visit once each week.
(iii)The costs of the visits are to be at the sole expense of the father.
(f)At the conclusion of eight (8) visits the Independent Children’s Lawyer shall request a report from the service, with the cost of that report to be shared equally between the mother and the father.
(g)That upon receipt of the report from the service, the Independent Children’s Lawyer shall file and serve a copy of the same annexed to an affidavit.
That the father forthwith make arrangements to attend upon:
(a)A Psychiatrist for treatment; and
(b)A therapist to assist him in managing the transition of X to the mother’s primary care.
That the father provide a copy of these orders and reasons to any Psychiatrist and/or therapist that he attends upon pursuant to these orders.
That the proceedings be adjourned for final hearing on 2 SEPTEMBER 2021 at 10AM with respect to the father’s time spending with X, with:
(a)Such hearing to take place on a face-to-face basis; and
(b)Such hearing to proceed on the papers only.
That the parties each file and serve any affidavit that they intend to rely upon with respect to the father’s time spending arrangements no later than 21 days prior to the adjourned hearing.
That no later than 21 days prior to the adjourned hearing, the father file and serve an affidavit from each the Psychiatrist and therapist appointed pursuant to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Qualey & Shackford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 426 of 2017
| MS QUALEY |
Applicant
And
| MR SHACKFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parenting arrangements with respect to the parties’ child X, born in 2010, who has recently turned ten.
The proceedings have been punctuated by a raft of very serious allegations, including:
a)Allegations of family violence perpetrated by the father against the mother;
b)Allegations of family violence perpetrated by the mother against the father;
c)Allegations that the mother has harmed X as a result of exposing him to and/or involving him in her sexualised behaviour, together with allegations that the mother’s partner has assaulted and injured X on at least three separate occasions; and
d)Allegations that the father suffers from serious psychiatric illness/mental health difficulties.
At the heart of the proceedings is X, who has experienced significant upheaval in his short life as a result of the acrimonious dispute between his parents. In addition X has significant behavioural issues, developmental delays, speech difficulties and learning difficulties which have culminated in a diagnosis of ADHD, coupled with problems in relation to his teeth. All of which the mother asserts have been exasperated as a result of the father’s inability and/or refusal to prioritise X’s needs and deal with those issues in a timely fashion.
X has lived primarily with the father since his parents separated in August 2016. The father wants to continue to have the primary care of X, however he suggests two alternate positions with respect to X’s time spending arrangements with the mother.
His primary position is that the existing arrangements stay as they are, namely that X live with the father and spend alternate weekends and half school holidays with the mother.
In the alternative the father proposes that X move to living with each of his parents in a week about shared care arrangement, albeit that during his oral evidence he also proposed an arrangement that was less than shared care, being time from Friday to Wednesday of each alternate week.
The alternative positions now promoted by the father were ones that he came to during the course of the trial.
The father’s case from its inception has been that the mother poses a risk to X because she has physically, sexually and/or emotionally abused X and/or failed to act protectively of X in relation to allegations of abuse made against the mother’s de facto partner. Implicit in the father’s alternative position is an acceptance on his part that the Court may not agree with his case that the mother presents a risk of harm to X.
The mother is asking the Court to make orders that will change X’s living arrangement to one where he lives with her. The mother asserts that the father poses an unacceptable risk of harm to X as a consequence of the family violence he has perpetrated, the father’s poor mental health, and the father’s inability to prioritise and meet X’s needs.
It is the mother’s position that if the Court makes findings in support of her allegations, then X should only spend supervised time with the father.
If however the Court is not satisfied that the father presents an unacceptable risk of harm, then nonetheless the mother asserts that there remains a risk of harm if X were to remain living in the primary care of the father. Accordingly the mother maintains that X should live primarily with her and she proposes time spending arrangements between X and the father each alternate weekend together with fortnightly mid-week overnight time.
Sadly for X, these proceedings have taken an inordinately long time to get to trial from the time they were commenced by the mother in February 2017.
In addition the trial itself has been drawn out over 14 sitting days, heard in tranches over the course of an entire year due to:
a)The initial trial estimate of three days being insufficient;
b)The inability of a high volume Court such as this to accommodate lengthy trials and find additional trial days as listings in this court are generally made well into the future;
c)The repeated loss of trial time to enable Counsel to consider documents, take instructions, and confer; and
d)The consequences of the COVID-19 pandemic which resulted in the inability to conduct a face-to-face hearing for some time.
Having said that, the parties’ legal representatives must also bear some responsibility for creating and compounding the delays that have infected this matter. On any view there were wholly inaccurate and unrealistic estimates of the length of trial. In addition there was a failure to request that a complex matter such as this be transferred to the Family Court of Australia when it must have been abundantly clear to the legal representatives that the duration of the trial (given the issues to be traversed and the number of witness’ to be called) would well exceed the three days that had been allocated.
In my view these erroneous trial estimates have resulted in the legal representatives shouldering some responsibility over the Court’s failure to administer justice to these parties in a timely way. This is something that has concerned me greatly over the course of the trial and in my deliberations, and the consequences of these delays cannot ever be erased given the untold impact the delays are likely to have had on the parties themselves but more importantly X.
Background
The brief history of the parents and their relationship is as follows:
a)The father was born in 1982 and he is 38 years of age.
b)The mother was born in 1982 and she is also 38 years of age.
c)The parents started living together in a de facto relationship in 2009 at Suburb C in South Australia. They relocated to the Region D in mid-2010, where they remained living until their final separation in August 2016.
d)X (born in 2010) is the only child of the relationship.
e)The father has a child from a previous relationship, E, who was born in 2007 and who is 13 years of age. To the best of my understanding, the father does not have a relationship with E.
f)Both parents have re-partnered in the post separation period:
i)The father has married Ms F. Ms F has a son G, who was born in 2007 and is 13 years of age. Ms F and her son G live with the father.
ii)The mother has re-partnered with Mr H and they live together.
The mother asserts that from its inception and throughout, her relationship with the father was punctuated by serious family violence in all its forms, including but not limited to physical abuse, verbal abuse, stalking and coercive and controlling behaviour. These allegations were broadly denied by the father and instead he asserted that he had been the victim of family violence at the hands of the mother.
The breakdown of the parties’ relationship occurred effectively over a two day period on 18 and 19 August 2016.
It is the father’s case that on 16 August 2016 he had been expecting the mother to return home after she had completed a shift working away at the Employer J. The father asserts that the mother did not return home and that she was uncontactable. The father says that after two days he decided to report the mother missing to the police and that she was ultimately located at the home of the parents of her current partner Mr H on 18 August 2016. The father’s case is that the mother ended the relationship with him in order to pursue her relationship with Mr H.
It is the mother’s case that when she returned home the following day (19 August 2016) after a “night out,” she was the victim of an assault at the hands of the father, which ultimately saw the father arrested and charged with aggravated assault. The mother’s allegations in relation to this incident are that:[1]
a)the father punched himself in the face with a clenched fist while holding a kitchen fork;
b)the father then stabbed her in the leg with the fork causing an injury;
c)the father told the mother “If you ever leave me I will hurt you… kill myself… take your child away”.
[1] Affidavit of the Mother filed 10 July 2018, paragraph 15 -16, 33, Annexure “B”.
At the time of separation X stayed in the care of the father, and within weeks the father relocated with X to Adelaide.
The mother asserts that after the father relocated to Adelaide with X, the father facilitated limited time between her and X, whether by phone or in person, and that all face-to-face time occurred in the father’s presence.
The litigation and events following the commencement of proceedings
The mother commenced these proceedings on 6 February 2017 seeking an urgent hearing. In her Initiating Application, she sought orders that provided for:
a)Her to have sole parental responsibility for X;
b)The father to return X to her care and that thereafter X live with her; and
c)The father’s time with X to be subject to him filing a report from his treating psychiatrist.
When the proceedings first came before the Court on 14 March 2017, Her Honour Judge Mead (as she then was) made orders:
a)Appointing an Independent Children’s Lawyer;
b)Requiring the father to file responding documents, together with a report from his treating GP regarding his mental health; and
c)Pursuant to section 69ZW for the production of relevant documents from the Department for Child Protection (DCP) and the South Australian Police Department (SAPOL).
When the father filed his responding documents, he sought orders which provided for:
a)X to live with him and that he have sole parental responsibility; and
b)The mother to spend time with and communicate with X as the parties might agree or as otherwise ordered by the Court.
As a consequence of a contested hearing on 5 May 2017, Her Honour Judge Mead made orders providing for:
a)X to live with the father;
b)X to spend time with the mother from 9.30am until 12 noon each Sunday as and from 7 May 2017; and
c)The preparation of a Family Report pursuant to section 62G of the Family Law Act 1975 (Cth).
These arrangements stayed in place for X until orders were made by Her Honour Judge Mead at a contested hearing on 19 September 2017 to gradually increase the amount of time that X was to spend with the mother such that:
a)By 7 October 2017, X was to commence spending overnight time with the mother effectively for a period of 24 hours each weekend for three weekends;
b)By 28 October 2017, the time increased to X spending overnight time with the mother the entire weekend from 10am Saturday to 5pm Sunday for three weekends; and
c)As and from 17 November 2017 the time increased to X spending alternate weekends with the mother from the conclusion of school on Friday until the commencement of school Monday.
Save and except as to arrangements for special occasions and school holidays (which have largely been shared in recent times), the alternate weekend time spending arrangements that commenced on 17 November 2017 have remained in place since that time.
There have however been some difficulties with those arrangements.
The first difficulty arose in December 2017, when the father withheld X following the mother’s time with him on 19 December 2017, and in relation to the same:
a)The father asserts that he withheld X after X made disclosures to the father after spending time with the mother on the night of 19 December 2017. X is said to have disclosed “mummy lets (the dog) ‘K’ lick her pussy.”[2]
b)The father says that he recorded X’s conversation with him on his mobile telephone and that he also contacted the police to report his concerns.
c)As a consequence of the father’s report to the police, X was interviewed by police at the Suburb L Police Station and the father asserts that following the interview he was told by police that X had “described seeing the mother committing acts of bestiality on several occasions in different rooms in the house and whilst being watched by a number of different people”.[3]
d)There is no dispute between the parties that the police did not take any action or lay charges against the mother after their investigation concluded.
e)It is agreed between the parties that as a result of these events X did not spend any time with the mother over the Christmas period in 2017 and well into the New Year.
f)The mother’s time with X was ultimately reinstated as a result of orders made by Her Honour Judge Mead on 8 February 2018.
[2] Affidavit of the Father filed 2 August 2018, paragraph 60.
[3] Ibid
A problem also arose on 20 April 2019 with respect to handover of X, and in relation to the same:
a)There is no dispute that the father did not facilitate handover at the commencement of the mother’s time that day, and that it was ultimately effected on 21 April 2019.
b)The father’s position is that he did not facilitate handover as the mother was not present, and she had instead sent her partner Mr H to handover in her stead. The father asserts that he did not affect handover to Mr H as he has “reservations about his character as a result of past treatment of X.”[4]
c)The mother’s position is that Mr H had been present in her stead on many previous occasions when she was working and unable to attend, and that the father simply withheld X on 19 April 2020 to frustrate her and her time spending arrangements with X.
[4] Affidavit of the father filed 22 May 2019, paragraph 22.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the Court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the court must have regard to the aims of the legislation set out in section 60B(1), which provides as follows:
(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.
The principles underpinning the aims of the legislation are contained in section 60B(2) which provides:
(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).
In determining what is in a child’s best interest, the court is to have regard to a long list of considerations set out in section 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the court is to give greater weight 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.
The 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.
The legislative pathway to be adopted in a parenting case has been considered by the Full Court in Goode & Goode (2006) FLC 93-286.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:
(a) Abuse of the child or another child who, at the time, was a member of the parent’s family; or
(b) Family violence.[5]
[5] Family Law Act 1975 (Cth) s 61DA(2).
Family Violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption as to equal shared parental responsibility is rebutted, then the Court is required to make orders that are in the child’s best interests with reference to those factors set out in section 60CC.
The approach
In the current circumstances where the mother has sought sole parental responsibility, I am required to consider whether the presumption for equal shared parental responsibility has been rebutted or whether it should apply.
I accordingly propose to approach consideration of the matter with reference to the relevant legislative provisions and the evidence of the parties, in the following way:
a)Firstly, to determine whether there is a basis to depart from the presumption that the parents share parental responsibility of X; and
b)Secondly, and subject to the pathway to be undertaken as a result of the determination of parental responsibility, to have regard to the section 60CC considerations to determine what orders are in X’s best interests.
The Witnesses
During the trial I heard oral evidence from:
a)The mother;
b)The mother’s partner, Mr H;
c)The father;
d)The father’s partner, Ms F;
e)Psychiatrist Dr M who assessed the father and provided two reports. The first dated 7 March 2018 and an updated report dated 25 November 2019, prepared during the course of the trial when the proceedings were adjourned part-heard;
f)The family report writer Mr N who had conducted two assessments and provided an initial report dated 28 August 2017 and then a further report dated 6 November 2018; and
g)The child’s general practitioner Dr O.
Over the course of the trial each of the parents were subjected to lengthy cross-examination from opposing counsel and the Independent Children’s Lawyer, together with questions that I asked to better understand their evidence. The mother’s evidence was heard over the better part of 5 days and the father’s evidence was heard over the better part of 4 days.
As a consequence of both the voluminous material that each parent had filed for the purposes of the trial, the number of exhibits that were tendered during the course of the trial and the length of time that each parent gave oral evidence, I consider that they were each able to fully present their case and that they were each subjected to fulsome cross-examination. As a result of all of these factors I am of the firm view that both parents were able to fully and comprehensively ventilate all of the issues that they each wished to ventilate.
Significantly from my perspective, I had the opportunity to observe each of the parents carefully over a long period of time. These observations and the totality of the evidence that I heard and received has assisted my understanding of the issues in dispute, and more importantly has enabled me to make findings as to relevant issues.
I will return to the evidence of the parents and the experts in more detail shortly. Before doing so however, I shall make some preliminary comments about each of the lay witness’.
Mr H
The mother’s partner Mr H gave evidence and was subjected to lengthy cross examination by the father’s counsel. In relation to his evidence generally I comment:
a)Mr H was what can best be described as an impressive witness. To pick up on the observations made by Mr N when he interviewed Mr H as part of his first assessment and report, with which I agree, Mr H “presented as a thoughtful and attentive person who appeared to have quite gentle and supportive traits.”[6]
b)Serious allegations were put to Mr H about his conduct towards X (which I shall detail later in these reasons). It was my perception that Mr H did not attempt to shy away from those topics, rather he engaged with each allegation put to him and gave evidence about what had occurred from his perspective in a candid and considered way without vitriol, unnecessary commentary or rancour.
c)Mr H appeared to take delight in describing X and the activities that they do together, and it became clear to me that he plays a very significant role in X’s life when X is in the mother’s care.
d)Having heard Mr H’s evidence I am satisfied that he has formed an understanding of X’s personality, behaviours and needs.
[6] Family Report of Mr N dated 30 August 2017, paragraph 46.
Ms F
The father’s partner Ms F also gave evidence and was subjected to cross examination, albeit not as lengthy as that of Mr H, thus making it impossible for me to form views about her credit amongst other things.
From my observations, Ms F appeared deeply loyal and supportive of the father.
It also became clear during Ms F’s evidence (reinforced by the evidence of the father), that Ms F also plays a significant role in the care and upbringing of X when X is in the care of the father.
The Father’s Evidence
The father’s evidence in these proceedings is at best described as troubling and at worst unreliable. This observation is made as a consequence of certain assertions and admissions the father made over the course of these proceedings as discussed throughout these reasons.
There is however one topic that emphasises the concerns that I have about the father’s evidence, and that is the topic of his mental health. Given the centrality of the father’s mental health to the issues in dispute, I intend to deal with this topic from the outset, as it has lead me to my conclusion about the unreliability of the father’s evidence.
Before doing so however I observe that the father had a tendency to answer questions put to him before waiting for the entire question to be asked. This behaviour gave me the impression that the father was:
a)keen to establish his own narrative regardless of the questions that were being asked of him; and
b)keen to make denials about certain allegations and events before understanding exactly what he was denying; and
c)keen to assert that he did not remember certain events before understanding exactly what was being put to him.
In addition, there were times throughout the father’s evidence that I found it difficult to understand exactly what he was trying to say because his answers were confused and when given the opportunity to explain, his clarification did nothing more than further confuse.
A significant plank of the mother’s case has always been that the father poses a risk to X as a consequence of his poor mental health, including, but not limited to the connection between his poor mental health and her allegations of family violence together with her allegations that the father is unable to meet X’s needs.
When the mother filed her trial affidavit on 9 July 2018 she deposed to the following:
When commencing my relationship with the father he informed me that he had several mental health issues but not to worry about it, that it was “only minor”. I did not have much idea about any diagnoses he had with regard to his mental health until we moved to Town P, when the abuse started occurring on a daily basis and I assisted the father to access mental health services in the region. It was only then that I became aware that his mental health diagnoses included possible Bipolar Disorder, Schizophrenia, Borderline Personality Disorder and other issues to do with alcoholism and not taking his medication on a regular basis.[7]
[7] Affidavit of the Mother filed 9 July 2018, paragraph 60.
When the father filed his first trial affidavit on 2 August 2018, he specifically responded to the mother’s allegations about his mental health wherein he variously deposed that [8]:
a)He has suffered from mental health issues from a young age.
b)He suffered a breakdown after the failure of his first marriage and he was admitted to hospital and diagnosed with depression, which he had disclosed to the mother during their relationship.
c)He had been compliant with taking medication.
d)He had not been diagnosed with any other “conditions”, and asserted that the mother exasperated his depression as a result of her verbal abuse and frequent assaults during the relationship.
e)The mother managed his medication and at times over dispensed the medication to him resulting in a number of hospital admissions.
[8] Affidavit of the Father filed 2 August 2018, paragraph 42.
In support of his assertions that he does not presently suffer from any mental health difficulties, the father relied on the opinion of Dr M, which in general terms has been that the father does not suffer from any psychiatric disorder. While I intend to deal with Dr M’s opinion evidence in detail separately in these reasons, it is important to record at this juncture that I do not accept Dr M’s opinion that the father does not presently suffer from a psychiatric disorder.
For present purposes however it is of note that when Dr M completed his first report on 7 March 2018 he commented that:
In Mr Shackford’s case the history he gave was so different to that given by Ms Qualey. It would appear that the history given by one of them is incorrect.
I’m also concerned that he consciously misrepresented his history to get a disability support pension.[9]
[9] Report of Dr M dated 7 March 2018, being Annexure “A” to the Affidavit of the Father’s Solicitor filed 10 April 2018, page 14-15.
The father’s alleged misrepresentation to obtain a disability support pension appears to have been something that the father told Dr M in his appointments, as Dr M records:
Mr Shackford said he was diagnosed with a bipolar affective disorder. He said Ms Qualey coached him on what to say so he could get a disability support pension. He said that he told the assessor things that weren’t true “because of money”. Mr Shackford has been diagnosed with a borderline personality disorder. He said that he saw many psychiatrists and psychologists including Ms Q. He can’t recall the names of the other therapists that he saw. He was prescribed Carbamazepine, Mirtazapine and Seroquel.[10]
[10] Ibid, page 4.
I am conscious that the claim that that the father had lied in order to obtain a disability support pension at the mother’s behest is a claim that the father first made to Mr N in the preparation of the first Family Report of 5 May 2017, as Mr N recorded:
He claimed the mother had previously coached him about what to say to his doctor and his psychologist, in order to portray an impression that his illness was serious enough to warrant him being put on a disability pension, so that he could stay home and care for X whilst she went out to work.[11]
[11] Family Report of Mr N dated 30 August 2017, paragraph 67.
Significantly however and despite making this allegation to both Dr M and Mr N, this alleged misrepresentation of his history in order to obtain a disability support pension was not something that the father deposed to by the time he came to file his trial affidavit on 2 August 2018.
During the course of the proceedings both parties caused numerous subpoena to issue. Those subpoena included subpoena to Town P Medical Clinic, Southern Adelaide Local Health Network, the Department for Child Protection, Child and Adolescent Mental Health Services, R Medical Centre, the Department for Human Services, Medicare, South Australian Police, the Women’s & Children’s Health Network.
As a consequence of documents produced pursuant to those subpoena, the mother asserts that certain records corroborated allegations that she has made, and in particular for present purposes her allegations and concerns about the father’s long-standing poor mental health.
When the mother filed her first trial affidavit on 9 July 2018, she annexed copies of a raft of these records, setting out with some particularity occasions when the father had suffered mental health episodes and/or had received intervention as follows:
a)A referral made for the father to attend the Emergency Department of the S Hospital on 18 May 2010 with a preliminary diagnosis of “Bi-Polar Disorder”, with the referral stating:
“Mr Shackford presented with partner, Ms Qualey, who is pregnant. Mr Shackford has been diagnosed with BPD previously but recently was advided Na volporate by GP and has suffered from severe mood swings. He has been violent towards his wife, throwing things and has threatened to harm self and partner. Please admit and if possible psyciatrist consult. Please forward his noted Primeary care physician” (sic)[12]
b)An involuntary admission to the T Hospital in 2012 following a serious incident of family violence which resulted in the father being detained by the police that attended that day. The father among other things is recorded in the police notes to have said that “he needed help before he really hurt someone”.[13]
c)A referral in 2014 to a Psychiatrist which is recorded as being for:
“specialist assessment for his bipolar disorder. He Feels that he is knocked out at night due to medications he takes. His energy levels have been low. His medications are not helping him with control of mood symptoms, which has been getting worse lately and gets physical at times with his wife. I have referred him for psychotherapy as well.”[14]
d)An admission to the U Medical Centre in 2015 in which the Emergency Department recorded:
“Mr Shackford has been a patient at the U Medical Centre ED on 2 occasions recently. He has had several psychiatry reviews in that time. He has a diagnosis of Borderline Personality Disorder. While we have provided a small amount of olanzapine (5mg x 7 tablets) for P.R.N. use, the long-term treatment we suggest would be counselling/psychotherapy.
We have provided a suggestion for services in Town T. A copy of our notes has been faxed to the Rural and Remote Mental Health Service at V Hospital. Should Mr Shackford or his GP require further Mental Health Support they may contact W triage on ....”[15]
e)Records from the Town P Clinic in the month of August 2016 in the lead up to separation:
[12] Affidavit of the Mother filed 9 July 2018, Annexure “F”.
[13] Ibid, Annexure “A”.
[14] Ibid, Annexure “G.”
[15] Ibid, Annexure “H.”
i)On 1 August 2016 the notes record:[16]
[16] Ibid, Annexure “I.”
“here for scripts
“in a bad place”
“wouldn’t go any further into it”
“needs his scripts”
“medication list cleaned up”
“has used 17 diazepam yesterday”
“advised significant intake, very unsafe”ii)On 3 August 2016 the notes record:[17]
“says “losing it in the head” Says seeing black figure following him. Recent increase in Seroquel helped but now seeing daily again…”
iii)On 4 August 2016 the notes record:[18]
“issues:
- valium abuse, up to 24x5mg/day, illegally obtained
- antisocial personality disorder (cluster B) and also has partner with antisocial personality disorder and there is a lot of DV (apparently he got stabbed in the head with a fork 6mo ago)
- previous THC, IVDU, alcohol addiction problems
[17] Ibid, Annexure “I.”
[18] Ibid.
diagnoses:
- probably not depressed, just adjustment disorder
- having visual hallucinations with black shadows – suspicious for temporal lobe epilepsy
- cluster B traits, at risk of BPAD with mania
- polysubstance abuse”
iv)On 9 August 2016 the father presented with “lots of interpersonal issues” and a suspicion that the mother was cheating on him, with the history recording:[19]
[19] Ibid.
“minimal memories of recent events
black outs ongoing
abusing Valium + +
not to be given more Valium
after long discussion it seems his mental state is all over the place but not acutely psychotic”f)A record from the Town P Clinic immediately after the time of separation in mid-August 2016 in which the following is recorded:[20]
“was arrested yesterday
had missing persons report put out for his partner
police found her in Town P
she was going to leave the house, and he stabbed himself in the chest with a fork, as well as in the forehead
he was arrested for “stabbing her with a fork”
then got a recording of her saying she wasn’t stabbed
going through legal aid for this”g)In that same record the reason for the father’s contact is recorded as “Bipolar affective disorder”.
[20] Ibid.
So far as those records are concerned, the father responded in his trial affidavit filed 2 August 2018[21] and asserted that:
a)The record dated 18 May 2010 was a “forgery” and “altered by the mother”. However other than a handwritten note that appears on the record produced by the mother and not on the record produced by the father, which note I have ignored, it is not clear to me why the father asserts the record to have been forged. Nor importantly was the mother cross examined about the alleged forgery.
b)The record dated 16 May 2014 is also a “forgery and has been altered by the mother”. However again other than a handwritten note on the record produced by the mother and not on the record produced by the father, which note I have again ignored, it is not clear to me why the father asserts the record to have been forged. Again, the mother was not cross-examined about the alleged forgery.
c)The record dated 26 May 2015 the father suspected that “this too may have been altered by the mother”. However again, it is not clear to me why he asserted that to be so. Again, the mother was not cross-examined at all about this record and whether she had altered it.
d)In relation to the notes from the Town P Clinic, the father largely admitted the contents of those records (other than to deny that the Valium was illegally obtained) and he acknowledged that he was “struggling at that time due to my poor relationship with the mother which negatively impacted my mental health”.
[21] Affidavit of the Father filed 2 August 2018, paragraph 43 – 50.
Importantly, and despite the sworn evidence of the father nothing was done in the presentation of his case to challenge the factual accuracy of the records and the opinions expressed therein, whether by asking for those specific records to be struck out[22] and/or insisting that the author of each record be called for cross-examination. Because of a failure of the father to challenge these records and the admissions that he made, I consider that I am in a position to accept the records both as to their factual accuracy and also as to the opinions expressed therein.
[22] Noting that at the commencement of the trial the father made an application pursuant to section 69ZT(3) for the provisions of the Evidence Act 1995 (Cth) excluded by section 69ZT(1) to apply; which was refused.
I am also satisfied that it is appropriate for me to accept the accuracy of these records and the opinions expressed therein because the father was cross examined by the mother’s counsel at some length over the majority of the records. While at times the father stated that he did not recall certain events, the father variously confirmed that what was recorded in the records was accurate, including:
a)That he had been diagnosed with the mental illnesses described in the records;
b)That what he had been recorded to have said to the various professionals was correct;
c)That he would have had the symptoms he was presenting with because of the medications that he was on at the time.
As a consequence of accepting the information contained in the medical records, it is evident that the father has suffered from poor mental health over an extended period of time during the relationship of the parties, and that:
a)There have been concerns and/or diagnoses of not only depression (which is all the father admitted to in his trial affidavit of 2 August 2018), but also mood swings, borderline personality disorder, antisocial personality disorder, adjustment disorder, and Bipolar affective disorder with risk of mania.
b)There were concerns, including around the time of separation, about the father’s abuse of substances including medications and alcohol, together with admissions by the father that he had been physically violent towards the mother.
c)Suggestions were made for the father to be referred for psychotherapy and counselling, and it is not clear to me whether those referrals were ever taken up by the father.
Significantly from the mother’s perspective, at the time that Dr M prepared his first report on 7 March 2018, he did not have the benefit of the mother’s trial affidavit (as it had not yet been filed), which included the records to which I have just referred and which on their face appeared to significantly undermine the version of events that formed the foundation of Dr M’s assessment. That information included matters recorded by Dr M in the body of his first report but also included information conveyed by the father in a questionnaire he completed prior to his appointment with Dr M in which the father among other things[23]:
a)identified that he had suffered from Depression in 2010.
b)identified “I Don’t have anything wrong with me anymore”.
c)identified that the cause of him being “psychiatrically unwell” in the past was “Relationship, Being isolated from Friends & Family”.
d)identified “I was in an abusive relationship. I have done a lot of work in myself to get back to normal I’ve come off of nearly all medication with assistance of G.P.”
[23] Exhibit “M14.”
As a result of the mother’s criticisms of Dr M’s first report during the first tranche of the trial, and after it became obvious that the trial would be adjourned part heard, the father sought to obtain an updated report from Dr M taking into account among other things the material produced pursuant to subpoena put before the court by the mother. As a consequence the court ultimately made orders on 13 June 2019 for that to occur.
Dr M prepared a second report after considering the additional material on 25 November 2019. In that report the father is again recorded to have told Dr M that he had “misrepresented his history to others in order to get the DSP”.[24] Dr M went on in the second report to record:
“Mr Shackford’s history is unusual in that he asserts previously misrepresenting his history in order to get the DSP and because Ms Qualey told him to say things to health providers.”[25]
[24] Report of Dr M dated 25 November 2019, being Annexure “1” to the Affidavit of the Father’s solicitor filed 4 December 2019, page 14.
[25] Ibid, page 15.
At the point in time that the father met with Dr M on 25 November 2019 for the purposes of the second report:
a)The mother had been cross examined by the father’s counsel and the Independent Children’s Lawyer over a period of three days during the first tranche of the trial.
b)The father filed two further affidavits on 22 May 2019 as to further allegations of abuse with respect to X that were said to have occurred in the intervening period.
c)The father filed a further affidavit on 20 November 2019 regarding X’s schooling, development and an incident that occurred on 6 October 2019.
d)In all of those additional affidavits, the father did not anywhere depose that the mother had told him to lie about his mental health in order that he receive a disability pension.
When the trial resumed on 12 December 2019 following the release of Dr M’s second report, the mother was cross examined by each the father’s counsel and counsel for the ICL specifically with respect to the events that had transpired between June and December 2019.
Importantly, at no point during any of the cross examination of the mother was she questioned as to whether she had asked the father to lie about his mental health symptoms or that she had done so in order for the father to obtain a disability support pension. The failure of the father’s counsel to put this allegation to the mother is a significant factor that I am unable to ignore when weighing up whether I accept this allegation.
When the father gave evidence, the mother’s counsel challenged the father about these matters. The father’s evidence was that:
a)Throughout the relationship he had lied to various professionals in order to receive the disability pension, and that he did so at the mother’s insistence. He asserted that she had “gas-lighted” him during the relationship and that she had made him believe that he had a mental illness when he did not have one. He further asserted (consistent with what he had told Dr M and Mr N) that she had made him do so in order for him to receive the disability pension.
b)That he had lied to a range of professionals about his mental state on at least a yearly basis in order to keep qualifying for the disability pension; which lies he conceded included him telling professionals that he was hearing voices, that he was suffering depression, that he was suicidal and that he was having drug problems.
When he was probed further the father also:
a)Admitted to being in receipt of a disability pension when he first met the mother;
b)Admitted to continuing to receive the disability pension in the lengthy post-separation period, which by that point was in excess of three years; and
c)Explained that he did not attempt to find employment in the post-separation period as he did not want to jeopardise his legal aid funding for these proceedings (an assertion he also made to Mr N during his appointment for the second of Mr N’s reports on 22 October 2018[26]).
[26] Family Report of Mr N dated 6 November 2018, paragraph 50.
This evidence of the father’s is informative as it would appear that in the period prior to the commencement of the relationship and over the post separation period the father’s motives for wanting to receive the disability pension were quite independent to anything the mother might have asked him to do. More importantly, the father’s own evidence makes it clear that in the post-separation period he was entirely motivated by his financial desires to obtain a grant of legal aid for these proceedings.
I am also intrigued by the father’s use of the term “gas-lighting”; being a turn of phrase that he used for the first time when he gave oral evidence. The father was asked to explain what he meant by this term, and he gave evidence that the mother’s conduct had him believe at the time that he suffered from a mental illness. From my perspective, the father’s explanation as to what he meant by this phrase goes well beyond his initial assertion’s that he had lied at the mother’s behest. I have formed that view because if the father had lied at the mother’s request, I would have to infer that at the time the father was lying (by telling medical professionals that he had symptoms that he did not have), the father did not believe he had a mental illness and that he consciously lied about his symptoms. Whereas the use of the gas-lighting phrase in the context that the father understood it to be used, makes clear that the father now considers that at the time he was presenting to medical professionals with poor mental health, he actually believed he had a mental illness and was therefore not lying about his presentation and symptoms. Either way, this evidence of the father, and the fashion in which it has evolved is most concerning and raises serious questions about the father’s credit and his mental health.
In addition, during the course of his oral evidence the father offered up two further confusing explanations as to why the mother had “gas-lighted” him; firstly for sexual favours and secondly because he was scared of the mother. There was however nothing in the father’s evidence that supports these assertions; despite the father asserting during his oral evidence that he had told a previous treating psychiatrist Ms Q and that he had spoken to her and was hoping to get a letter from her confirming the same.
When I combine all these matters together, I have difficulty accepting and indeed I do not accept the father’s assertion that the mother was in any way responsible for the father’s mental health presentation during the course of their relationship. I specifically do not accept that the mother made the father lie about his symptoms and nor do I accept that the mother made the father lie in order that he obtain the disability support pension. I also do not accept that the mother gas-lighted the father into believing that he had a mental illness.
The matters which I have already discussed however are not the only matters which have exercised my mind when assessing the father’s credit.
I am conscious that records produced by Child and Adolescent Mental Health Services (“CAMHS”)[27] contain information which does not align with the father’s assertions that he had only previously been diagnosed with depression, including:
a)A note in the records that the father has “complex mental health dx including borderline personality disorder, BPAD and major depression. Currently medicated for these conditions. Had a previous addiction to benzodiazepines but not longer”.[28]
b)A note that the father had reported that he “struggled with mental health issues” with the notes going on to record that the father “did not go into detail about his diagnosis”.[29]
c)A note recording that the father had been prescribed “seroquel, Tegretol and Mirtazepine” and that his doctor was looking to reduce his use of Seroquel.[30]
[27] Affidavit of the Mother’s solicitor filed 14 August 2018, Annexure “A.”
[28]Ibid, page 16.
[29] Ibid, page 18.
[30] Ibid, page 21
The mother’s Counsel cross examined the father at some length over matters that had been recorded by CAMHS. In approaching that topic with the father on more than one occasion the father confirmed that the CAMHS notes were largely accurate as to what had been recorded from the discussions.
In addition there were various topics about which the father gave oral evidence that was on occasions inconsistent with matters he had advised CAMHS as recorded in their notes, and on other occasions the father made allegations to CAMHS that I do not accept, including but not limited to:
a)The father made assertions to CAMHS that he had been the victim of family violence perpetrated by the mother, but not once did he disclose to CAMHS that he had perpetrated family violence against the mother, that he had been charged with offences and that an Intervention Order had been taken out naming the mother as a protected person.
b)The father made assertions to CAMHS that the mother had hit X, including a slap to the face causing a black eye. This is an allegation that did not appear anywhere in the father’s trial affidavit. When being challenged about these matters, the father also asserted that he had photos of the black eye and that the mother had whipped X and that he had suffered numerous injuries which he had taken X to the doctor about. The father however produced no photographic evidence to support these assertions, and nor was his oral evidence compelling. As a result I am satisfied that these events did not take place.
c)The father also made assertions to CAMHS that the mother had locked X in a cupboard and that she had hit him with sticks. Again, none of these very serious allegations appeared in any of the father’s numerous trial affidavits, and again his oral evidence was not compelling. Accordingly I am satisfied that these events did not take place.
d)The father made assertions to CAMHS and during his oral evidence that the mother neglected X’s feeding when he was a baby. I do not accept this evidence. It was confused and it was not compelling.
e)The CAMHS notes record that the father was referred by that service for separate therapy,[31] and that he advised CAMHS workers that he was on a waiting list to see his own therapist.[32] However during his oral evidence the father admitted that he has not sought any support beyond that of his general practitioner and the undertaking of various parenting courses in the post separation period.
f)The CAMHS notes record that the father had advised that he was “reconnecting with a previous psychologist (Ms Q at Z Clinic) and hopes this will continue to produce positive benefits on his own mental health.”[33] Whereas the father gave oral evidence that he had not seen any psychologist or psychiatrist since relocating to Adelaide in 2016. In addition, if the Ms Q referred to in the CAMHS notes is the same person as the Ms Q referred to in the father’s oral evidence, the father asserted in his oral evidence that he had not consulted Ms Q since leaving the Region D. In addition, the father gave evidence that in recent times, his only contact with Ms Q had come about after “googling” her to see if she was still practicing as he had heard that she suffered a brain tumour. Having located her he had called her to see if she would provide a letter (which was not ultimately forthcoming) confirming that he had disclosed to her that the mother was effectively gas-lighting him.
g)The father had told CAMHS that X had not seen the mother for five months, when in reality at the point that the father made this assertion to CAMHS, the father had only relocated to Adelaide about 8 weeks earlier.
h)The father acknowledged that in hindsight one of the reasons that X was acting out and presenting with behavioural difficulties when he was first referred to CAMHS was because he missed the mother.
[31] Affidavit of the Mother’s solicitor filed 10 August 2018, page 15.
[32] Ibid page 19.
[33] Ibid, page 21.
In both of his reports prepared for these proceedings, the family consultant Mr N turned his mind to the father’s mental health.
In the first report, Mr N recorded:
a)That the father had told him that he had been diagnosed with bi-polar disorder and he had been attempting to get in touch with his psychologist to get a report. Further that he saw his mental illness as being under control and that he has regular contact with his GP who specialises in mental health treatment.[34]
b)That the father provided a “complex self-reported history of being diagnosed with bi-polar disorder and borderline personality disorder which he states is currently under control with medication.”[35]
c)That there was scant details about the “nature and extent of his mental illness and how it impacted on his mental state and behaviour historically.”[36]
d)That the father had confirmed in his statement to police that he suffered from “multiple mental health problems and had been non-compliant with his medication… he suffered from bipolar and borderline personality disorders, as well as having a trauma history as a child. Depression and anxiety also appear to have been ongoing concerns.”[37]
[34] Family Report of Mr N dated 5 May 2017, paragraph 67.
[35] Ibid, paragraph 77.
[36] Ibid, paragraph 106.
[37] Ibid, paragraph 107.
In the second report Mr N recorded that the father had told him that his “mental state was now stable having given up all medication some two to three months ago. He downplayed previous diagnoses, commenting they were environmentally induced reactions to illicit drug use as a teenager.”[38]
[38] Family Report of Mr N dated 6 November 2018, paragraph 52.
The father’s counsel did not challenge Mr N about the accuracy of what he recorded the father to have said to him in the assessment process. Accordingly, I am able to accept that the matters recorded by Mr N are an accurate reflection of what the father discussed with him.
From a reading of Mr N’s reports it would appear to me that at least when the father first met with Mr N he told Mr N about his mental health history with some detail and that the father went well beyond that which he deposed in his affidavit of 2 August 2018, and that which he told Dr M in March 2018, namely that he had only been diagnosed with depression in the past.
Of some concern to me is that by the time of Mr N’s second report, when the father well and truly knew that the topic of his mental health was to be a prominent feature of these proceedings (particularly in light of Mr N’s recommendations in his first report that the court “seek further information regarding the father’s contact with Adult Mental Health services and any diagnosis made in respect to his mental illness”[39]), the father downplayed any previous concerns about his mental health.
[39] Family Report of Mr N dated 5 May 2017, paragraph 119.
Significantly, the father did nothing in the presentation of his case to put any evidence before the court from any professional (Psychiatrist /Psychologist/General Practitioner or otherwise) that he had attended upon for treatment, either during the relationship or in the post separation period.
The father was cross examined by the mother’s counsel about the matters that he had conveyed to Mr N during the assessment process. In particular he was asked to explain why he had not told Mr N that he had been “gas-lighted” by the mother into believing he had mental health issues. The father’s cavalier answer was that he was “trying to make myself look better” in the interviews with Mr N.
When challenged about that answer and whether the court could now “trust” anything that the father now asserts, the father’s response was telling as he acknowledged that he “did not know”.
From my perspective this answer from the father indicates that the father had some awareness of the gravity of his admission that he had said things to Mr N to make himself look better. However when confronted with that admission he was unable to acknowledge that in having made such a significant admission, there must necessarily be doubts over his credit generally and as a consequence the evidence he had given in these proceedings on all topics.
Moreover, given the father’s admission that he was trying to make himself look better in his interview with Mr N, I can have no confidence that any of the information that he conveyed to Mr N was indeed true and accurate, or simply a version of events that he thought would give him the greatest advantage in the assessment process.
As it turns out, the father ultimately made some admissions during his oral evidence about his previous mental health, including:
a)That he had been hospitalised on occasions;
b)That he had previously been diagnosed with schizophrenia;
c)That he had previously been diagnosed with bipolar disorder; and
d)That what he thought had occurred in the past may indeed be a result of his mental illness at the time.
Despite these admissions, the father did not ever resile from his assertion that the mother had gas-lighted him and/or made him lie in order that he obtain a disability support pension.
In addition, I am conscious that the father had originally intended to rely on the evidence of his father (the paternal grandfather Mr Z), with an affidavit of the paternal grandfather filed on 2 August 2018. While I cannot be certain, I would have to assume that one of the reasons that the father filed the affidavit from his father was because the mother had made an allegation in her trial affidavit filed 9 July 2018 that:
“During my relationship with the father the paternal grandparents kept in constant contact with me to ensure that the father adhered to his medications. They contacted either me or the father each week to make sure he had been taking his medications which at that time, included Seroquel, Lithium and Carbamazapine.”[40]
[40] Affidavit of the Mother filed 9 July 2018, paragraph 69.
Up until at least 2 August 2018 it is apparent that the paternal grandparents had played a supportive role of the father in these proceedings and both had participated in the appointments with Mr N for the purposes of the first family assessment. Of note, the paternal grandparents are recorded as acknowledging to Mr N that the father “had suffered from mental health problems in the past stating however, that he looks and behaves much better since returning to Adelaide.”[41]
[41] Family Report of Mr N dated 5 May 2017, paragraph 58.
On the first day of trial however, the father’s Counsel indicated that the father no longer intended to rely on the affidavit that had been filed by the paternal grandfather, submitting that the evidence “doesn’t advance things very far”. The father’s Counsel was cautioned that the court might be invited to draw an inference against the father as a consequence of the lack of participation by either of the paternal grandparents and in particular the paternal grandfather.
Ultimately, the father was cross examined by the mother’s Counsel about his parents’ apparent lack of ongoing support and it was put to him that he was no longer on good terms with them. The father denied this and asserted that his father was too unwell to give evidence. No evidence was adduced by the father to support this assertion.
Be that as it may, it is significant from my perspective that the father did not ultimately rely on any evidence from his parents, particularly on the topic of his mental health difficulties. It is my view that a consequence of the father’s failure to do so in light of the totality of the matters to which I have already referred, must result in me drawing an inference against the father (as I have been invited by the mother to do[42]) that the evidence of his parents would not have assisted him on this topic.
[42] Written Closing Submissions of the Mother, paragraph 3 – 4.
In addition I am mindful that during the course of his evidence the father made comments when challenged about his allegations and assertions on a range of topics, which were not otherwise supported by information and records put to him, including:
a)“I wish you would just ring the school”;
b)“I wish you would just look at the records”;
c)“I have a folder of stuff”;
d)“I’ve got folders and folders”; and
e)“I’ve got police records”.
However at no point in the presentation of the father’s case was his Counsel able to point to any records that supported the father’s version of events on a range of topics. Moreover, more often than not when regard was had to the independent records, those records simply did not support the father’s version of events whatsoever.
In addition to the records that I have otherwise discussed throughout these reasons, there are additional examples of the disparity between the father’s assertions and the independent records, which include:
a)The father asserted that he had taken a recording of the mother admitting to lying to police regarding the events that unfolded at the time of separation.[43] The transcript of the recording that was produced however does not support this assertion.[44]
b)The father’s assertions that the police had advised him after interviewing X following his alleged disclosures on 19 December 2017, that X had disclosed “seeing the mother committing acts of bestiality on several occasions in different rooms in the house and whilst being watched by a number of different people”[45], were not in any way supported by the SAPOL records from that interview.
c)The father asserted that the mother had been kept fully informed of communications that he had with X’s school teacher through the school “DOJO” App. Whereas ultimately after the parties Counsel inspected each of the parents records, an agreed position was put to the court that the mother did not receive the father’s direct communication with X’s teacher, and vice-versa, and that she only otherwise received the generic non-child specific information posted into a different icon within the App that all parents of students in that class receive.
d)The father asserted that Dr O would give evidence about the father coming off medication and that his notes would show this, with the father proclaiming that he was looking forward to Dr O giving this evidence. However these records and such evidence from Dr O was not produced or led in the presentation of the father’s case.
e)The father gave evidence that he had filed a report prepared by Dr BB in late March 2019 in relation to X’s ADHD diagnosis with Her Honour Judge Mead making orders for X to start a trial of ADHD medication. This evidence was not correct in any way because Her Honour had not made orders about X’s ADHD medication whatsoever in these proceedings, and certainly she could not have done so in late March or April 2019 as by that time she had been appointed to the Family Court, and the matter had come before me following my appointment to this court on 25 March 2019 (being the same date that Her Honour was appointed to the Family Court).
[43] Affidavit of the father filed 2 August 2018, paragraph 33.
[44] Exhibit “M10” and “M11”.
[45] Affidavit of the Father filed 2 August 2018, paragraph 60.
When I consider all of these factors together I do not have any confidence that the father is a witness of credit. Moreover, I do not have any confidence that the father’s evidence in these proceedings has been entirely truthful, and I hold serious concerns that it was nothing more than an account of events that the father thought would best position himself in these proceedings, much as he sought to do when being interviewed by Mr N.
What appeared to me from the tenor and the totality of the father’s evidence was that the father appears to:
a)Be very adept at presenting misinformation; or
b)Honestly believe the misinformation that he presents; or
c)It is possible that it is a combination of the two.
When I couple these findings with my findings in relation to Dr M’s evidence, I cannot exclude the possibility that one cause for the father’s presentation is that he suffers from some kind of psychiatric condition.
For all of these reasons, I have significant difficulty in accepting the evidence of the father, particularly where it conflicts with that of the independent records and/or the mother and/or her witness, Mr H.
While one outcome of this finding about the father’s credit results in me preferring the evidence of the mother over that of the father, I am not confident that such a simplistic approach appropriately deals with the factual disputes between the parties, given the number of serious allegations that have been made, the competing version of events given by each of the parties across not only their sworn evidence by way of affidavit but also the oral evidence that they gave during the trial and then additionally the documentary records that exist in relation to many of the allegations. I accordingly shall deal with each of the allegations made by the parties in detail and make findings.
The mother’s evidence
In my view the evidence of the mother and her presentation in the witness box must be seen through the prism of the findings that I have made about the father’s credit coupled with the father’s previous mental health diagnosis and the possibility that the father has an ongoing underlying mental health condition.
At times during the course of her oral evidence the mother was agitated, distressed and frustrated and she gave confusing evidence. While at the time of her oral evidence and bearing in mind that she was the first witness to give evidence, I had some cause for concern, when I stand back and assess the mother’s presentation against the totality of all of the evidence that was ultimately presented, it appears to me that on balance the mother’s at times prickly presentation was most likely driven by her frustration as to the circumstances that she found herself in following the separation of the parties in the context of the litigation and her separation from X. Particularly as her version of events was being challenged when the documentary records overwhelmingly supported her assertions and not those of the father, with regard to both the father’s mental health and also her allegations that she was the victim of family violence perpetrated by the father.
On the whole however, I am satisfied that the mother’s evidence was fundamentally truthful and that any inconsistencies within her evidence were not ultimately of any significant consequence.
Dr M’s Evidence
As identified earlier in these reasons, Dr M prepared two reports with respect to the father.
In both reports Dr M expressed the opinion that the father was not suffering from any psychiatric disorder and/or that he does not have a “significant psychiatric disorder which would compromise his parenting.”[46]
[46] Report of Dr M dated 25 November 2019, being Annexure “1” to the Affidavit of the Father’s solicitor filed 4 December 2019, paragraph 22.1.
This is an opinion that I have a difficulty accepting as a result of matters that came to light during Dr M’s oral evidence.
To be fair to Dr M however, it is an opinion he qualified, both in his written report and in his oral evidence, as he identified that he was troubled by the inconsistencies between the records and the father’s version of events.
As previously identified in these reasons, the reason that Dr M was asked to provide a further opinion regarding the father was because by that stage the mother had filed her trial affidavit which had annexed to it a raft of medical records which appeared to contradict the history that the father had conveyed to Dr M for the purposes of his first report.
The additional documents that were provided to Dr M were voluminous. It is clear that Dr M had turned his mind to those documents as he summarised in his report “points contained in each document that are relevant to my specialty as well as my comments where appropriate”.[47] In addition, it became clear to me that as Dr M gave oral evidence he had a working understanding of the information contained in the documents that he had been supplied.
[47] Ibid, paragraph 21.
Dr M confirmed that in coming to his opinion he had relied on the father’s history as provided by him, together with his own observations on mental state examination, the father’s completion of some psychiatric measuring instruments and the ancillary documents that were sent to him.
The focus of the cross examination of Dr M by the mother’s counsel was directed to challenging the foundation of Dr M’s conclusion in his second report on the basis that he had not properly taken into account the inconsistencies between the father’s self-report, and the mounting contradictory information that could be taken from various external sources and particularly those contained in the records produced pursuant to subpoena as annexed to the mother’s trial affidavit.
On any view, there are significant inconsistencies between the father’s self-report to Dr M that he had only previously been diagnosed with depression and the records that the mother had annexed to her affidavit, which include references to:
a)The father being diagnosed with bipolar disorder;
b)The father having BPD previously;
c)The father being at risk of BPAD with mania;
d)That the father had reported seeing “black shadows” and a “black figure following him”;
e)The father having described “visual hallucinations”;
f)The father having “minimal memories of recent events”; and
g)The father suffering mood swings.
Specific examples of the inconsistencies drawn to Dr M’s attention during the course of his oral evidence included:
a)The fact that the father had told Dr M that he had lied about his mental health and his symptoms at the mother’s behest during the relationship in order to obtain a disability support pension, which appeared inconsistent with the father continuing to receive a disability support pension at least two years after the parties separated when the mother’s influence was no longer a factor.
b)That the father had been detained under the Mental Health Act, and various professionals had expressed concerns that he was suffering from borderline personality disorder / bipolar, which appeared inconsistent with the father’s assertion that he had misrepresented his mental health historically in order to obtain the disability pension.
When the mother’s counsel highlighted inconsistencies within the father’s own evidence and self-report to Dr M, including that the father asserted that the mother had made him lie about his symptoms in order to obtain a disability support pension, when it was now known that the father had continued to receive that pension in the post separation period and on his own admission in order to obtain a grant of legal aid for these proceedings, Dr M variously responded:
a)That it was possible that the father actually did have a condition that entitled him to receive the benefits he was receiving.
b)That it was possible that the father had presented to him downplaying his past because he was keen to present well to Dr M in the context of these proceedings.
c)That if the court found that the father “genuinely thought he was being followed by black shadows as distinct from being told to say that, and he was saying that but not believing it, that would raise concerns that he may have been psychiatrically unwell.”
Dr M was also taken to the father’s use of medication including his use of the antipsychotic medication Seroquel both during the relationship and for a period of at least 2 years after the parties’ separation. On this topic Dr M acknowledged that:
a)He could not understand why the father was still taking medication in that period.
b)It appeared that various medical practitioners over a long period of time had prescribed the father Seroquel.
c)The father had told him he had been prescribed Seroquel as a consequence of psychotic symptoms.
d)He would have to assume that if the father had been prescribed Seroquel, then there must have been a clinical reason for the prescription.
e)He did not probe the father about why he was still taking Seroquel in the post separation period if indeed he had lied at the mother’s behest to obtain a disability support pension.
f)He did not make any external enquiries of the father’s treating medical professionals as to the father’s need and or use of Seroquel.
I also had the benefit of the mother reading out the text message that she sent the father the following day, as follows:
“As per phone call on 7.10.19 at 3.12 re X’s teeth incident, Sunday, the 6th of the 10th, took him to emergency to get a tetanus shot, as requested by the orthodontic surgeon, as there was plastic from the water slide in his gums. Just a precaution. Will be compensated in due course for the accident as it was not X’s fault and going through the legal channel with aquatic centre. OH&S issue, and X did everything correct that he was told to. As per phone conversation with you, I will send you the invoice of emergency services and when I get a full report from the dentist you will receive it straight away. We will both need to make sure that X does not have anything harder than minced meat, custard, bread and jellies, smoothies, soups for three months. He has a splint in gums and he has had two root canals were done on teeth. There is a possibility will need implants in the near future by the orthodontic surgeon and X will need to see him ongoing until this is finalised. I’m sorry, unfortunately, it isn’t a normal dentist procedure and has to be done at Suburb OO Orthodontics. I will pay for all the treatment and then put in a claim against the aquatic centre. Saturday, 12th of the 10th this week at 7.45, check-up and exam of stitches and splint. It was an unfortunate accident that could have happened to any child, no one is to blame, but the aquatic centre did know X’s age then they said he should have been 10 to go on it, hence why we have legal grounds that they knew his age then still let him go down the slide and it’s the same slide as PP Centre has. X was funny on the gas in the chair. He was pretending to be Bob the Builder and drill holes in the ground. He did extremely well. The surgeon was super proud of him. I was so proud too. I was sad and worried like crazy that he knocked his teeth out completely, but they were just pushed up into the top of his gums. He scared me so bad, the poorest thing. That’s our boy, though. Now Mummy is his slave (his legs don’t move LOL) because he had a needle in the arm and teeth problems. X will hear from you tomorrow at 6 pm. Oh, will be at dinner, so sorry if noisy. Apologise.”
On any view, that message from the mother to the father was entirely child focused and appropriate. It was in my view, a very detailed message and among other things identified the treatment that had taken place, what needed to occur in the future, the next appointment, how she and the father needed to manage meals, that she would pay for the treatment and then claim against the aquatic centre those costs and otherwise provided an update as to how X had coped.
In light of the evidence of the mother and Mr H:
a)I make no criticism of the mother for taking X to the Suburb OO Dental Clinic, particularly as it had been arranged by the aquatic centre staff in urgent circumstances to ensure prompt attention was given to X’s injuries; and
b)I also make no criticism about the mother’s behaviour in the aftermath. On any view her text message to the father was detailed and entirely appropriate, and simply does not support any of the assertions made by the father.
Moreover it is of some concern to me that yet again, the father has sought to capitalise on this incident and point to it to support his allegations that Mr H and/or the mother are unable to properly care for X and act protectively of him and/or meet his needs when situations arise.
In my view, the incident was nothing more than an unfortunate accident which was blown out of all proportion by the father in circumstances where the mother and Mr H had acted entirely appropriately in all respects.
It appears to me that the father’s “spin” on the incident was one grounded in mistrust and criticism of the mother and Mr H, and his evidence as to the information (or lack thereof) conveyed to him by the mother was simply untrue.
Additional allegations made by the father during his oral evidence
During his oral evidence the father made some further allegations about the mother and incidents of family violence between them which he asserted she perpetrated.
None of these allegations formed part of the father’s sworn evidence, and nor was the mother cross-examined about their occurrence.
The most serious allegation that the father made was an allegation that he had also made to Mr N, that the mother had punched the father causing him to spit out blood and loose a tooth, albeit that he did not seek medical treatment.
This allegation was not ever put to the mother.
I do not accept this allegation of the father.
Conclusion as to Parental Responsibility
Given all of the findings that I have made, I consider that circumstances well and truly exist to rebut the presumption of equal shared parental responsibility both because of the incidences of family violence but also because it is abundantly clear to me that in all of the circumstances the co-parenting relationship between the parties is non-existent and it would appear incapable of ever being salvaged. It would appear that there is far too much water under the bridge for these parents to ever be able to co-parent X effectively and in light of the findings that I have made it is impossible for me to see how the mother could ever trust anything that the father tells her (with good reason) and I suspect vice-versa.
Beyond that which I have already addressed in these reasons, a good example of the lack of a co-parenting relationship between these parents, and their complete lack of trust which has the potential to result in serious consequences for X can be seen in the evidence that the parties gave regarding X’s ADHD diagnosis and medication, and in that regard:
a)The father gave evidence that he had not advised the mother that he was taking X to see Dr BB in relation to this diagnosis, and that he did not ever provide the mother with a copy of any report that Dr BB had prepared;
b)Between the first and second tranche of the trial X started a new regime of medication to manage his ADHD. That medication needed to be given routinely at set times of the day regardless of whether X was with the mother, the father or at school;
c)The father filed an affidavit on 20 November 2019 before the second tranche of the trial commenced making a complaint that the mother had failed to give X his medication;
d)During her oral evidence, the mother indicated that the father had failed to consistently provide her with the medication, for which he had the “authority script”, meaning that she could not simply obtain her own medication during times that X was in her care;
e)The mother also complained that the father had not kept her informed as to changes in dosage and the addition of new medication, and that medication would simply turn up when X came into her care without any explanation from the father;
f)The mother indicated that on at least one occasion she did not give X the prescribed medication until she was satisfied about what the medication was and had liaised with X’s doctor herself;
g)The mother was cross examined about a series of text exchanges between the parties which began on or about 7 September 2019[71] when the father had failed to provide X’s medication at all. Ultimately the text messages revealed that the father had offered to drive the medication immediately to the mother’s home, but the mother did not allow that to occur, thinking that the father was setting her up in some way so that he would look good in court for making that offer; and
h)Sadly for X thereafter the parents could not agree where and when to exchange the medication and as a consequence X did not have any medication for the entire weekend that he was in the mother’s care.
[71] Exhibit “F13.”
While criticism might be levelled at the mother for the way she handled the situation on 7 September 2019, in my view, this incident underscores the complete lack of trust that the mother has in the father and everything that might be said by him. While I consider that the mother acted inappropriately that day in not immediately accepting the father’s offer to drive the medication to her home, I accept the mother’s evidence that she considered that the father was not being genuine in making that offer. I say that, because what can be seen from the ensuing text exchange between the parents is that having offered to drive the medication to the mother, the father would not otherwise accede to any number of other sensible and appropriate offers made by the mother to exchange the medication.
Another example of the lack of trust between these parents, and in particular the father’s poor attitude to the mother and her partner, can be seen in the evidence the father gave in relation to the accident at the Suburb NN sports centre, and in that regard:
a)The father gave evidence about these events after he had sat through the oral evidence of each the mother and Mr H.
b)Having sat through that evidence, and heard Mr H’s answers as to what had occurred that day, the father asserted that the evidence had not been reassuring and that he did not accept Mr H’s version of events.
c)The father asserted that Mr H had given evidence that he had been told prior to going on the slides that X could not go on the slide if he was not ten years of age; which was not the evidence given by Mr H. Ultimately and with further probing the father was prepared to accept that Mr H’s evidence was that he had only been told of the age limit after X had been injured.
d)Later in his cross examination, the father reflected and conceded that he could not completely blame Mr H.
e)It remains of some significant concern however that the father was not prepared to countenance that the incident was an accident with no fault from either Mr H or the mother, and that it was only when challenged about the evidence he thought had been given but was not given, was he prepared to concede otherwise.
For all of the reasons that I have already discussed, together with my consideration of those matters that follow, it is my view that the mother should have sole parental responsibility for X.
Best Interest Considerations
I have already considered several of the considerations set out in section 60CC of the Act.
I now only intend to discuss those relevant factors that I have not already considered.
The Primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As I have identified in these reasons, I have no concerns whatsoever that the mother presents any risk to X, whether that be from her own behaviour or in exposing X to Mr H.
When it comes to the father however, as a result of the matters that I have earlier discussed in these reasons, I do however hold very serious concerns about the father and in particular:
a)It appears that during the relationship X was exposed to extensive and serious physical violence perpetrated by the father against the mother; and
b)The father’s ability to prioritise X’s needs over his own, thus putting him at risk of physical and psychological harm.
In addition to examples that I have already discussed as to the father’s inability to prioritise X’s needs over his own, I am also mindful that the father asserted in his oral evidence that he stopped taking X to CAMHS as he had been told that CAMHS could not assist X any more, however:
a)This assertion is not supported by any of the CAMHS records;
b)The father also confirmed that he stopped taking X after the mother had issued a subpoena to CAMHS; and
c)The father asserted that after the subpoena issued, X was concerned about talking to CAMHS and that he would come home from appointments saying “I can’t talk about that because Mummy will get me in trouble”.
While the father denied telling X that the notes had been the subject of a subpoena, this is not evidence that I accept, particularly as it became apparent from the CAMHS notes and the father’s oral evidence that he routinely discussed the proceedings with CAMHS and his various allegations against the mother in some detail in X’s presence, despite CAMHS asking the father not to do so.
A further consideration that cements my view in that regard is that the father made admissions during his oral evidence that he had taken documents from these proceedings to X’s school and discussed matters in the documents with X’s teachers; suggesting that he did not think there was anything wrong with him doing so. This is in and of itself a concern as it is in breach of section 121 of the Family Law Act. However what is of greater concern is that I formed the view that the father did so to undermine the mother’s position as X’s parent with his teachers.
What is of grave concern to me is that X himself identified in his session with Mr N for the second report that he had not been able to talk to anyone about how he feels as he had not seen the CAMHS counsellor Mr CC for some time.[72]
[72] Family Report of Mr N dated 6 November 2018, paragraph 74.
The Additional considerations
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
X was the subject of two separate interviews with Mr N as part of Mr N’s assessment and report process. By the time of the second report, X expressed a view to Mr N that he would like to live with each of his parents equally on a two week about basis.[73]
[73] Ibid, paragraph 71.
Despite this clearly expressed view from X, I have serious concerns about attaching any weight to X’s views and wishes in circumstances where I have formed the view that X has been significantly exposed to the father’s false narrative of many of the issues in dispute in these proceedings, including but not limited to his father’s poor view of the mother, the father’s discussions about these proceedings and the father’s fear that the mother would take X away from him.
I consider that I am able to make these findings based on the father’s own admissions that he discussed matters in detail in X’s presence during the CAMHS appointments, but also in light of X’s own comments to Mr N including:
a)That the mother had treated him badly when he was 4 or 5 years old, including the mother shutting him in a cupboard and smacking him;[74] incidents which I am satisfied did not occur and which X could only have knowledge about as a consequence of the father’s narrative.
b)That he was aware that his father “hates his mother because they had a big fight, commenting he still hates her and tells him not to listen to her because she tells lies”[75], whereas his observed interactions with the mother were entirely incongruent with the statements that he made about the mother.
c)That he knew his father hated his mother as “he could see it in his face when he talks about or looks at her.”[76]
[74] Family Report of Mr N dated 30 August 2017, paragraph 84.
[75] Family Report of Mr N dated 6 November 2018, paragraph 73.
[76] Ibid, paragraph 73.
Moreover, I am conscious that it has been the view of various professionals, CAMHS, the deputy school principal and Mr N, that X is reluctant to speak about his mother.[77]
[77] Family Report of Mr N dated 30 August 2017, paragraph 80.
When challenged about these matters in Mr N’s report, the father gave oral evidence acknowledging that X “100 percent” picks up on the things that the father has said about the mother and the proceedings in his presence.
X’s exposure to the father’s views and narrative in my view is particularly troubling as it has the potential to among other things:
a)Undermine X’s relationship with the mother;
b)Distort his own memories and beliefs; and
c)Cause X to question his experiences with the mother and Mr H.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Mr N’s two reports identify that X has a good relationship with each of his parents as illustrated by X expressing the view by the time of the second report that he wished to live equally with each of them.
I am very conscious that X has been living primarily with the father, his partner Ms F and her son G.
As I have previously commented, it is apparent that in the father’s household Ms F plays a significant role in providing care and support to X.
Equally, it is clear to me from the evidence I heard that Mr H plays a significant role in X’s life when he is in the care of the mother.
It is heartening that X spoke positively about both Mr H, Ms F and G when he had each of his interviews with Mr N. In my view the additional presence of these people in each respective household is likely to provide some emotional buttressing for X whatever orders I ultimately make.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It is agreed between the parties that the mother has worked in the post separation period and that she has paid child support for X pursuant to an agency assessment.
While the father gave some confusing evidence around the mother’s payment of child support, he ultimately admitted that the mother was up to date in her child support payments.
What was equally clear from the father’s evidence however is that in the post separation period he made a conscious decision not to obtain employment to support himself and his family, in order that he could continue to receive legal aid funding for these proceedings.
What I also understand from the father’s evidence is that by January 2020, when the trial appeared to be coming to a conclusion, the father obtained employment as a tradesman.
In my view, the conscious decision by the father not to obtain employment so as to secure legal aid funding, is not something that I am prepared to ignore, as it speaks to the father’s motivations to pursue his own ends in these proceedings regardless of the consequences on those around him; in this instance in the form of him not being in a position to provide an income to support his household and the needs of X in particular.
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
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am very conscious that X has been living primarily with the father, his partner Ms F and her son G.
It is not lost on me that if I were to change X’s primary care to the mother, that X will have his whole world turned upside down, and that his relationship with the father, Ms F and G will necessarily be altered as he is no longer living primarily in their household.
I am heartened however that Mr N expressed the view in his oral evidence, that he considers that the mother will support X to have an ongoing relationship with the father, particularly as she has experienced what it has been like to be denied that relationship as a consequence of the father’s actions. So much so is evidenced by the mother promoting time spending on either a supervised or unsupervised basis depending on the findings made by the court.
The capacity of each of the child’s parents and 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
In light of all of the matters I have discussed I consider that the mother is more than capable of meeting X’s needs in every way.
I have already expressed my views about Mr H and that I do not consider that he poses a risk of harm to X in any way.
The most significant factor exercising my mind is that submitted by the mother, namely that the father does not have the ability to provide for the needs of X.
This is a submission with which I agree. Not only do I have an overarching concern as to the father’s mental health and the impact that his mental health may have on his ability to meet X’s needs and parent him generally, but in addition to those matters that I have already discussed I also have significant concerns that the father has not attended to X’s needs in a timely fashion, including but not limited to:
a)Issues pertaining to his behaviour;
b)Issues pertaining to his education and developmental delays;
c)Issues pertaining to his eyesight; and
d)Issues pertaining to his dental care.
One of the reasons that these issues have been poorly attended to by the father, appears to me to be the father’s desire to present all aspects of his care of X in the most positive of lights to best position himself in these proceedings. That is to say that it appears to me that the father did not admit the gravity of the problems that exist for X during the course of the court proceedings as he did not want any negative attention drawn to himself and his ability to meet X’s needs or otherwise.
As a consequence of this approach by the father, importantly the mother does not appear to have been kept fully informed by the father as to X’s needs. While I have already identified that this illustrates the poor co-parenting dynamic that exists, in my view this also illustrates an inability on the father’s part to prioritise X’s needs over what he saw as the strategic advantage of downplaying concerns or issues relating to X in these proceedings so as not to lose his grip on X’s primary care.
Beyond that which I have already discussed in these reasons, a further specific example of the father failing to prioritise X’s needs is the failure of the father to obtain specialist speech therapy services for X, and in that regard during the father’s oral evidence he acknowledged that:
a)Concerns were raised with him during the CAMHS appointments that X had speech issues;
b)CAMHS had explained to him that one of the reasons for X’s behavioural difficulties might be connected to his speech difficulties and that the problem should be addressed as soon as possible without waiting for the public system to become available;
c)He was aware that X was eligible for support services at school through the public system;
d)CAMHS had told him that they could assist in getting some private session for X at reduced rates, and they provided him with the names of three practitioners that were prepared to assist;
e)He acknowledged that he made no effort to contact any of the private practitioners that CAMHS had suggested, despite being frustrated with the delays in the public system; and
f)Ultimately there was a delay of at least nine months in X having those supports provided at the school.
There are many additional examples that arose during the final hearing of the father’s inability to properly communicate with the mother regarding X’s needs (beyond that which I have already discussed), including but not limited to the following:
a)The mother gave evidence (which I accept) that the father did not tell her that X required glasses, and that she only found out that he needed glasses when X told her. The mother’s evidence was that the father would not send X to school with his glasses on the Friday that he was due to come into her care, purportedly “because he doesn’t want the dogs to chew them”. As a consequence on the Friday prior to X’s weekends with the mother and the Mondays following, X was without his glasses at school; something X undoubtedly requires to assist him with his learning.
b)The mother gave evidence in response to questions from the ICL (again which I accept, particularly in light of the father’s own evidence that he does not communicate with the mother) that the father refuses to engage in any communication at handovers. The mother explained that at the most recent handover that had occurred she commented to the father on returning X, “X’s chest is better”, and then started speaking about cough medication. The mother said she “waited. No one looked at me. I didn’t get acknowledged. I say “bye baby, I love you, I love you” and I walked out.” The mother commented that this was a regular occurrence and that often when she leaves she hears a “moan, a groan and a laugh, and I just ignore it.” The mother displayed some insight as to the impact that such occurrences have on X, commenting that it was “not good for X not to see parents communicate”.
c)The father gave evidence that he did not inform the mother that he had met with X’s school vice principal in early 2020 to apply for funding for a full time student support officer for X.
Another example of the lack of communication and the dire impact on X can be found in the CAMHS sessions that the father attended with X.
The mother’s evidence was that she was not aware that the father had been taking X to CAMHS for appointments which commenced in February 2017.
The mother asserted that once she became aware that X was attending CAMHS and she liaised with X’s counsellor Mr CC, she became concerned about the misinformation that the father had conveyed to Mr Mr CC about her and that the father had specifically gone about excluding her from being involved in that process.
The mother was also concerned that the father had attended all of X’s appointments with him, and that there was limited opportunity for X to be seen alone by Mr CC.
While I did not hear any oral evidence from Mr CC, as already discussed throughout these reasons, I did have the benefit of a set of the notes produced by CAMHS[78] and they became a feature of the oral evidence, and particularly the cross examination of the father. From those notes and the oral evidence given by the father it is apparent that:
a)The father was indeed present with X for most of his appointments;
b)Those sessions were in large part directed to assisting the father with developing strategies to manage X’s significant behavioural difficulties;
c)The notes record repeatedly that the father discussed issues in relation to the mother (often in X’s presence) including but not limited to allegations of her alleged family violence, the father’s concerns about the court process, concerns about the mother pursuing time with X and Mr N’s reports in these proceedings and his recommendations;
d)There were concerns about the father’s behaviour documented by CAMHS including concerns that the father was recording phone calls with the workers without their consent, concerns that the father was “infantilising” X as he was “needing to maintain X at an earlier development stage than he actually is”;[79]
e)When questions were directed to X about his time spending with the mother, he often commented that he found the time “fun” and otherwise generally reflected positively on those interactions with the mother; and
f)The CAMHS workers developed concerns about the father not shielding X from his distress, concerns and emotions and the impact that this was having on X. At times the notes record that X picked up on his father’s distress and sought comfort from the father.
[78] Affidavit of the Mother’s solicitor filed 14 August 2018, Annexure “A.”
[79] Ibid, Annexure “A” at paragraph 31-32.
In addition to the CAMHS records which illuminate to a large degree the concerns about X that the father did not depose, I now also have the benefit of some records from X’s school[80]. From those records it appears that the father in particular downplayed the seriousness of X’s difficulties at school, including but not limited to his educational development, but in addition his social development. On any view of the records that I now have from each CAMHS and X’s school it is clear to me that X has very, very significant issues including but not limited to:
a)poor peer connections and friendships;
b)significantly below level reading, literacy and comprehension skills;
c)poor concentration and focus; and
d)limited self-regulation and a tendency to act out verbally and physically including physical altercations with other students and staff.
[80] Exhibit “F20”; Exhibit “M18.”
While I accept that some of these issues are likely to stem from a more recent diagnoses of ADHD, and it now appears that some improvements are being made, the thrust of the mother’s case is that had the father attended to these issues much sooner and obtained the support that X needed at an early stage rather than focussing on the legal proceedings and best positioning himself for primary care of X, then X would be in a much better position today than he presently is. I do not consider that I am able to recast history and make speculative findings about whether X would be in a better place today had the father attended to his needs sooner. I do however accept that the delays by the father are of very real concern.
Poignantly, the most concerning observation about X can be seen in the description that X’s own school teacher gave of X during an interview with CAMHS on 28 May 2018, as “the “worst child” she’s seen in 21 years of teaching and that he is the worst child in the worst class in the school” and that “30 hrs per week of teaching X makes her “sick at the thought of his voice”.[81]
[81] Affidavit of the Mother’s solicitor filed 14 August 2018, Annexure “A” at paragraph 68.
The tenor of the father’s evidence in my view was not only to downplay concerns about X, but incongruently to suggest (when faced with the records in cross examination that did not support the positive picture he sought to portray), that X’s behaviour and the concerns about him being expressed by various professionals (school and CAMHS) were no longer an issue.
When regard is had to X’s most recent school report and “one plan” in place for his learning at school, I understand that X is a child with very high needs, and that the concerns in relation to him have not evaporated, rather they are finally beginning to be addressed. So much so is evidenced by the very high level of one-to-one support he has at school, and the matters recorded in his most recent “One Plan” document[82], which include:
a)That X is significantly below level in reading;
b)That X is still struggling with his peer interactions;
c)That X requires constant “one to one support to read, process and understand instructions and visual support to complete tasks”; and
d)X is still struggling regulating his emotions and behaviours without an escalation to violence or verbal abuse.
[82] Exhibit “F20.”
In addition, the father gave oral evidence that funding was in place for X to receive full time one to one support at school, such funding having been extended in early 2020 beyond the support he was receiving until lunch time each day.
When I combine all of these factors together, I come to an inescapable conclusion that the father for a range of reasons is unable to prioritise and meet X’s needs.
Is X at risk?
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 (“Deiter”), the Full Court set out (at paragraph 61):
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Addressing the first limb identified by the Full Court, in view of my findings as to the father’s mental health and family violence, there can be no doubt in my mind that certain harmful events have occurred.
In addition, the allegations that have been made by the father in the post separation period against the mother and Mr H, which I do not accept, have also continued to inflict harm on X, as they have among other things:
a)Been the source of ongoing conflict and disputation between the parents;
b)Embroiled X in the middle of the parental dispute as he has been subjected to and adopted the father’s false narrative;
c)Resulted in X attending upon the police and medical professionals unnecessarily; and
d)Served to unnecessarily undermine the relationship between the mother and X.
The mother’s case is that the combination of those factors has resulted in a significant and severe impact to X, as the father is simply unable to properly meet his significant needs.
This is a submission that I accept for all of the reasons that I have already discussed.
Moreover, it is my view that the uncertainty over the father’s mental health in and of itself presents a significant risk factor for X. This risk factor has in my view already manifested in a number of ways, including but not limited to:
a)The non-existent co-parenting dynamic that exists between these parents;
b)The father’s failure to attend to X’s needs adequately;
c)The father’s inability to communicate with the mother about X’s needs to ensure that he receives the best treatment and support possible; and
d)The father’s inability to prioritise X’s needs over his own driven by his desire to retain primary care of X.
While I am satisfied that the father does indeed present a risk to X, there is however a secondary question, and that is whether the risk factors are such that they are “unacceptable” from the court’s perspective; that being a finding the mother has asked the court to make, and which grounds her primary application that the father only spend supervised time with the father.
In the Full Court decision in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235, Justices Warnick, May and Boland gave consideration to the term “unacceptable risk” and the court’s need to “make some effort to quantify the relevant risk”. In doing so, the Full Court referred to the dissenting judgment of Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 with approval as follows:
(c) In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
(d) This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding wither an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
I have already in these reasons turned my mind to and I have discussed the issues raised by the questions posed by the court and discussed in W and W.
In addition I am mindful that:
a)The concerns relating to the father and his mental health appear to be longstanding;
b)The concerns have been raised repeatedly by numerous professionals over a long period of time;
c)It is not clear to me, because the father has not presented any evidence from any of his treating practitioners, what, if any support and treatment he is presently receiving, and if not why not; and
d)The father appears to have been on a campaign throughout these proceedings to secure primary care of X and that has resulted in the father’s inability to prioritise X’s needs over his own.
It is my view that all of the issues that I have discussed in these reasons leads me to consider that the father does indeed pose an unacceptable risk to X at this stage.
While I acknowledge that the mother is promoting supervised time spending between X and the father, I am mindful of Mr N’s evidence about the need to tread cautiously in transitioning X into the mother’s primary care; including a period of time where the father does not spend any time with the mother, followed by a period of reportable supervised time spending.
I am however equally mindful that Mr N is concerned as to the long term impact of X being denied an ongoing relationship with the father. While supervised time is a way of managing the risks that the father presents, at this juncture there are too many uncertainties in relation to the father for me to be in a position to finally determine whether the risk that the father poses can be managed appropriately in the long term.
Conclusion
For all of the reasons that I have discussed, my own observations and findings and in light of Mr N’s evidence, I have significant concerns as to how the father will react when he receives these reasons and comprehends the orders that are to be made by the court.
Given the uncertainties that Mr N expressed about the father and his potential reaction to the loss of primary care, I do not consider that I am in a position at this juncture to make final orders about time spending arrangements between X and the father.
This uncertainty is compounded when I have regard to the fact that there is no evidence before me that the father has been receiving any professional support for his mental health since separation.
In addition, I am concerned as to the viability of a long term supervision order in circumstances where the mother did not present a cogent proposal as to those supervision arrangements.
While my preference is to bring these proceedings to an end, I do not consider that I am in a position to do so given the significant uncertainties that I consider exist with respect to:
a)The father’s mental health; and
b)The manner in which the father will receive the decision that I have come to, to change X’s primary care to the mother.
I am mindful that this is something that also concerned the Independent Children’s Lawyer, given the manner in which he cross examined Mr N, and the preferred path that Mr N promoted of the court reviewing and finally deciding X’s time spending with the father after a period of X settling in with the mother and commencing supervised time with the father.
I consider however that if I am to make final orders in relation to parental responsibility and X’s living arrangements with the mother, that will significantly limit the ambit of any future disputation.
For all of these reasons, I make those orders set out at the commencement of these reasons.
I certify that the preceding three hundred and thirty-eight (338) paragraphs are a true copy of the reasons for judgment of Judge Kari
Associate:
Date: 14 January 2021
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Family Law
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