REESING & REESING

[2019] FCCA 3333

FEDERAL CIRCUIT COURT OF AUSTRALIA

REESING & REESING [2019] FCCA 3333

Catchwords:
FAMILY LAW – Parenting – final hearing – most issues agreed.

PRACTICE AND PROCEDURE – Expert evidence – importance of experts confining themselves to areas of expertise.

Legislation:

Evidence Act 1995 (Cth) s.79(1)

Family Law Act 1975 (Cth) ss.60CC(2), 60CC(2A), 60CC(3), 102N

Cases cited:

D & SV [2003] FamCA 280

Dasreef Pty Ltd v Hawchar (2011)243 CLR 588
Gaffney & Gaffney [2012] FamCAFC 140
Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705

Applicant: MS REESING

Respondent: MR REESING

File Number: MLC 11041 of 2017

Judgment of: Judge Harland

Hearing date: 11 November 2019

Date of Last Submission: 11 November 2019

Delivered at: Melbourne

Delivered on: 20 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Lovering

Solicitors for the Applicant: JS Law

The Respondent: Appearing in person

Counsel for the Independent Children’s Lawyer: Ms Dunlop

Solicitors for the Respondent: Kordell Lawyers

ORDERS BY CONSENT

1. That all previous Orders be discharged.

2. That the applicant mother have sole parental responsibility for the children of the relationship namely:

   V born … 2002;

   W born … 2003;

   X born … 2005;

   Y born … 2008; and

   Z born … 2012.

3. That the applicant mother will notify the respondent father in writing via text within seven days of the decisions made in relation to:

   (a)Education;

   (b)Religion;

   (c)Major health issues, including physical and psychological; and

   (d)Travel outside of the Commonwealth of Australia.

4. That the children live with the applicant mother.

5. That the children spend time with and communicate with the respondent father as follows:

   (a)Through cards, gifts and letters to be sent from the respondent father to the children.

   (b)That should any of the children wish to communicate (including spend time with) the father the mother shall facilitate such communication and the respondent father be at liberty to respond accordingly.

6. That each parent notifies the other in the event of any serious illness or injury to the children and the details of any treating health practitioner or hospital as soon as practicable via text message only.

7. That the respondent father is authorised to obtain at his own expense any school photograph order forms, notices, newsletters, report or any other information which parents usually receive from the children’s school.

8. That both parents provide the other with not less than seven (7) days prior written notice, particulars of any change of residence address, email address or telephone number via text message only.

9. That the parties be hereby restrained from denigrating the other parent to or in the presence of the children and neither parent shall cause, permit or subject the other to denigration by any other person.

ORDERS BY THE COURT:

1. That cards, gifts and letters sent from the respondent father to the children pursuant to Order 5(a) herein are to be sent via the mother and the mother be permitted to read and inspect same and pass them on to the children.

2. That the parties be permitted to provide these reasons to any medical professional either of them or the children attend upon.

3. That the Independent Children’s Lawyer be discharged in 30 days after the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11041 of 2017

MS REESING

Applicant

And

MR REESING

Respondent

REASONS FOR JUDGMENT

1. This case was listed for a four day trial commencing 11 November 2019 with respect to five of the parties six children: V aged 17, W aged 16, X aged 14, Y aged 11 and Z aged 7. Their oldest child Ms E is an adult aged 20. The case has for the most part resolved with the parties consenting to:

   a)the mother having sole parental responsibility for the children who remain under the age of 18;

   b)the children living with her;

   c)the mother notifying the father in writing via text with respect to decisions she makes for any major issues concerning the children’s education, religion, health and travel outside of Australia;

   d)the children spending time and communicating with the father by way of the father being able to send cards, gifts and letters, and that should the children wish to communicate, including spending time with the father, that the mother will facilitate that communication, and that the father will be at liberty to respond;

   e)the parents keeping each other notified of any serious illness or injury to the children and to provide details of any treating health practitioner or hospital as soon as practicable via text message;

   f)that the father be authorised to obtain school reports, photographs, etcetera, from the children’s schools at his expense;

   g)that the parents keep each other updated with respect to their residential address, email and telephone number; and

   h)that the parties be restrained from denigrating the other to or in the presence or hearing of the children and will not allow anyone else to do so.

2. The four issues that remain in dispute are:

   a)whether or not the mother should be permitted to read and inspect the letters, cards and gifts before passing them on to the children;

   b)whether or not orders should be made for the father to have telephone communication with the two youngest children, Y and Z, three times a week, with the father initiating the call to the mother’s mobile number;

   c)whether or not the father should be listed as an emergency contact with the children’s schools; and

   d)whether or not the family report and the report of Mr A should be released to the Magistrates’ Court of Victoria with respect to any family violence intervention order between them. 

3. Given the nature of the issues in dispute, it is unusual for the Court to provide written reasons with respect to those issues. Ordinarily they would be able to be dealt with in court at the time. However, this matter needs to be seen in its context, and one of the last things the father said, who represents himself, is:

   “How much more time do I have to serve? Because one of the things with this is that there is no opportunity whatsoever to put an end date to this or to put a constructive resolution to it. And this is my concern at the moment, that no one is talking about a constructive, child-friendly outcome with an end date. And I think that is a fair and reasonable thing to ask. Time lost can never be regained. The kids need me and I desperately need them. And for it to be open-ended, and I understand that orders are only changed for a significant reason to do so, I am asking, what’s the point of a penalty that never ends? Z is seven. She was seven on Friday… I am respectfully asking for a time frame and some reasonable way forward…’

4. These reasons will be an attempt to explain that to the father, but I have some real doubts that he will be able to hear that message. It is not about punishing one parent. It is about making orders in the children’s best interests based on the evidence available. It is rare that if the court needs to determine a parenting matter that an optimal outcome can be achieved as these cases involve high conflict and often other complex issues.

5. On 15 August 2019 I had made an order under s.102NA of the Family Law Act 1975 (Cth) (“the Family Law Act”) prohibiting the father from personally cross-examining the mother, and, in addition, the mother appeared via video link from another courtroom due to her safety concerns. There is a final intervention order in place and the mother has applied for an extension of that order.

6. The father says he obtained legal advice after the last occasion, but complained that the advice he had been given did not accord with what he was told in court with respect to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) on the last occasion. It is the practice of Victoria Legal Aid to inform chambers after an order has been made as to whether or not a party has approached them under the Scheme. Victoria Legal Aid advised chambers that the father did not make an application under the Scheme. 

7. Whilst the father was able to contain himself for the most part during proceedings, the level of anger and resentment he feels is palpable, as was evidenced through his body language and the way he stared at the judicial officer from time to time.

8. In those circumstances, I was not prepared to address the outstanding issues orally. It would not have been of assistance to either he or the mother, or indeed the parties’ oldest daughter Ms E who was in the courtroom.

9. However, I feel it is important to address the question the father posed. For the first time in these proceedings the father acknowledged that the children have expressed their views, that he has heard them and understood, and that he feels that he has failed them as a father.

Background

1. Before I address the issues in dispute I will set out the relevant background in order to provide context. The mother suspended the father’s time in September 2017 and filed an application for parenting and property orders in October 2017. The parties resolved the property matters on 6 April 2018.

2. It is the mother’s case that initially after separation the father visited the children at the matrimonial home, and that those visits were easy, relaxed and without difficulty. She says that during the marriage the father was controlling and that this worsened later in the marriage. She said the father was quick to anger and has poor insight. She described one incident of physical violence in 2006, which the father vehemently denies. The focus was really on his emotional and psychological abuse and denigration of her, some of which occurred in front of the children. 

3. She said that initially the children were happy to see him, but became more anxious and on edge as the visits would end with the father becoming angry and more focused on his anger with her and his resentment about the property issues and having left the family home.

4. The father’s description of their relationship is very different to the mother’s. He describes it being a close and loving relationship with the mother being his best friend and denies any controlling and abusive behaviour. He agrees that initially post-separation they were amicable and he saw the children without any problem. His case is that the mother and her parents have set out to alienate him from the children, and that they have been successful in that. It is clear that the father also blames the experts and the court and the family law system itself. He feels that his mental health has been used as a weapon against him both in the family law proceedings and also by his colleagues and employers.

5. The father is a health care worker. He justifiably takes pride in his work and that his job is important to him and is a stressful and challenging one. He was diagnosed in 2013 with post-traumatic stress disorder (“PTSD”), and what is apparent is that just as things came to a head with the breakdown of the relationship, problems also arose at work.

6. In the affidavit material the father expressed the view that he thought the mother had called his employer anonymously and that this had led to his being stood down. The mother denies that.

7. Throughout the life of these proceedings, the father has been a reluctant and resentful participant. He has been represented by two sets of law firms but has represented himself since 25 February 2019.

8. The father did not file any trial material but did seek that the parties in the court read the report that he obtained from his psychologist, Mr F which is marked as exhibit A. The court explained to the father that, in order for him to be able to rely on that at trial, Mr F would need to be available for cross-examination. The fact that he is not on affidavit is something that could have been cured. It was also explained to the father that he was entitled to cross-examine the experts, being the family report writer and the family therapist in particular. It was also explained to him that he would not be able to cross-examine the mother. The Independent Children's Lawyer (“ICL”) did not have any questions for the mother. 

9. The trial did not commence, as the parties were able to negotiate the orders referred to above, apart from the discrete issues in dispute. What is very sad about this case and what is very clear is that the father dearly loves his children and feels bereft by being cut off from them. Counsel for the mother and the ICL did not oppose the report of Mr F being read and tendered. It provides a useful insight into the father’s perspective.

10. His treating psychologist refers to the father suffering from an adjustment disorder with anxiety and an irritable overlay in August 2017 as a result of his colleagues engaging in malicious gossip and his employer’s failure to address this and standing him down on an unjustified basis. Mr F refers to this as being important given assertions in the family law proceedings around the father’s mental health “and lack of basis for his anger”. With respect to Mr F, the father’s conduct reflected in the expert reports go beyond the father being justifiably angry which was “unhelpful”. His inability to control his anger when being supervised and lack of insight is what is of concern. Unfortunately, he has not provided evidence addressing this. Undoubtedly, as is clear from Mr F’s report, the father faced incredible pressures with both his family situation and his work at the same time.

11. The risk concerns currently are not with respect to the father’s mental health. It is the psychological harm to the children of being exposed to his anger and his inability to shield them from that and his negative feelings towards the mother and her parents. He was unable to shield them from that and has not shown insight into this.

12. The father underwent several psychiatric assessments in the context of a WorkCover claim that he has with his employer. He was resentful about further assessments of him being carried out in these proceedings due to this but, as pointed out by Ms G and Dr B, who conducted a psychiatric assessment of the father for the family law proceedings, the purposes of those reports with respect to the father’s employment capacity is different to the purposes of the family law reports.

13. At the time of the family report interviews, the father had not seen or communicated with V and W since October 2017. The younger three children, X, Y and Z, had just started spending time with the father on the two previous Sundays, after also not having seen him since October 2017. At the report interviews, the mother’s proposal was that the time with the youngest three children gradually increase to alternate weekends.

14. The mother describes the father as having a strong personality and says when she met him, she was young and still living at home and that she experienced his mental health issues as having symptoms of increased irritability, outbursts, flashbacks, nightmares, hypervigilance and difficulties with his short-term memory. She says that she and the children would walk around on eggshells depending on what the father’s mood was and that there was a sense of anxiety in the home with attempts by the mother and children to modify their behaviour so as not to upset the father.

15. She says the real difficulties post-separation started when the father started feeling resentful about having left the family home. She says that his behaviour became more unpredictable and that he was blaming of her for losing everything and that she had lost nothing. She says he also believed that she had reported him to his employer, leading to him being stood down. She says she found his behaviour intimidating. She says she was increasingly concerned about the children in his care and that V and W were beginning to resist spending time with the father.

16. The father denies the mother’s version of events and says that it is the mother who has talked about inappropriate adult issues with the children and has set out to alienate him from them.

17. The mother says there was an incident on W’s birthday on … 2017 when the children were spending time with him and asked him about whether or not he was in a relationship with a woman who was pregnant. She says the father berated the children and accused them of isolating him and that there was yelling between the father and the children, and the children were highly distressed.

18. The father does not give his version of events except to say that the mother brought the children to his house and that it was the mother who discussed inappropriate adult issues in front of the children. He refused to discuss the incident with the family report writer at all.

Family report

1. The family report was concluded in March 2018 and orders were made releasing the report on 6 April 2018. The family report writer was so concerned about the father’s reaction to the report that she recommended that the report only be released to the father in the presence of his treating psychologist so that he would have professional support. This is what occurred, as confirmed by Mr F in his report, dated 9 November 2019.

2. The report writer noted the vastly different accounts of the parties and their experiences of their relationship. What is striking about the report is the father’s interactions with the report writer. He refused to discuss his mental health history other than to say that the subpoenaed material was inaccurate.

3. At paragraphs 44, 46 and 47 and 50, 51 and 52 of the report the reporter said:

   44. Mr Reesing had immense difficulty with all aspects of the family report assessment process. Upon arrival, he was defensive and after an initial period of failing to respond to introductory comments made by the writer, immediately engaged in an overtly aggressive manner. He informed the writer that he did not consent to the family report process, contrary to having consented to Court orders providing for the family report. Whilst he repeatedly stated that he did not agree with the process, he seemingly remained due to an understanding that this was a Court ordered process and that not to participate may not reflect positively upon him. Mr Reesing was verbally abusive throughout his interview, referring to the writer, other professionals involved and the system in general in derogatory terms. He acted in a manner which obstructed the assessment process. As a consequence, the normal assessment process could not be employed, and the writer was unable to obtain the information necessary to make a robust assessment of Mr Reesing within the context of the parenting dispute. He later identified himself as a very private person who struggled to have “people I hate” trawling through the details of his life. Mr Reesing’s presentation softened slightly, after a decision was made by the writer not to observe the children with him (see below).

   46. Mr Reesing stated that to date, he has not had a voice in the Court proceedings and he felt this was his first opportunity to express his views and perspectives. He identified having felt coerced and threatened throughout the process and stated, categorically, that he did not agree with the course of action that had been taken (by Ms Reesing and the Court). Mr Reesing described the adversarial Court system as having no justice for him and indicated a strong sense of powerlessness.

   47. Mr Reesing said he did not approve of the children’s involvement in the Court process, including the family report assessment, due to his desire to protect them from a “traumatic, stressful event”, in which they would be exposed to an adversarial experience. He stated that the children have not grown up with exposure to dysfunction and suddenly they have been involved with police, courts and support services such as Berry Street (about which he spoke with vitriol). Mr Reesing said that the children’s involvement in this process went against “every protective instinct as a parent”. He identified his “biggest concern” was that the children have been “pushed in a culture of fear and mistrust by the person closest to them (their mother)”. He pointed to their previously “tight; inseparably tight” relationship with him, prior to the separation as evidence of the impact this process has had on them.

   50. Mr Reesing stated that the Court has not and will not approach the matter in a fair and equitable manner. When asked what a fair outcome would be, Mr Reesing, in a brief occasion of being able to respond to a question and demonstrate some insight, explained that this was a difficult question to answer. He stated, “I look horrific on paper. What I want are loving, functioning, meaningful, close, inclusive, long-term sustainable relationships with all my children. I miss my kids desperately”. He referred to his feelings of heartache and isolation. This statement appeared to retrigger Mr Reesing’s anger who then stated, “and that bitch knows it – it’s the only way to hurt someone like me”, referring to his belief that Ms Reesing has used the children emotionally to harm him. He stated, “I think Ms Reesing can’t separate her hatred of me and my relationships with the children – I don’t give a fuck if I never see her and her family again”. He said that Ms Reesing’s family have behaved in an unconscionable manner, by demeaning and denigrating him to the children in an attempt to demonise him and suggest to the children that he poses a danger to them. Mr Reesing said he could not work out what Ms Reesing’s “end game” might be.

   51. On this basis, Mr Reesing expressed concern regarding Ms Reesing’s emotional maturity and capacity for critical thinking and decision making in relation to her parenting of the children. He wondered, for example, if Ms Reesing had considered how the family would move forward after the Court proceedings (“once you destroy someone how do you turn the clock back”), in order to have functioning relationships.

   52. Whilst for the most part Mr Reesing was unable to engage appropriately at interview and demonstrated a strong need to dominate the process, he was able to respond to questions asking him to discuss the children. He provided detail about each of the children, including their personalities, likes and dislikes, and was often emotional during this discussion.

1. It was most concerning that the father was unable to contain his anger and resentment despite being aware that this was an assessment for the court proceedings, as it raises serious concerns about whether or not he would be able to contain himself in front of the mother and/or children when he is not being monitored. The report writer was so concerned and the father was so distressed at the children being involved in the report that she decided not to conduct observations of the children with either parent. The report writer expressed concerns about the possible impact on the father’s mental health and subsequent risk of harm to the children if she expressed their views in detail in the report, so she determined to provide information from the children in a general, unidentified manner. This is unusual and reflects the seriousness of her concerns.

2. She also interviewed Ms E, who was 18 years old at the time of the report and living with her father. It was clear that she also found the interview process highly challenging, and her narrative was in line with that of her father. Ms E also commented on the court and family report process being invasive and that the court proceedings had been more damaging than anything else with respect to the family. V, who was 15 at the time of the report, said he understood that the report process was to help sort out what his parents could not, and he thought his parents would not be able to decide anything, but thought a court involvement could have been avoided. The reporter also individually interviewed W, X and Y. Y was nine at the time and was unwell that day and appeared to find the process overwhelming. Z was only five, so the reporter did not interview her, but spoke to her generally.

   81. The children’s views presented as balanced and as a reflection of their own experiences. There were no indications that the children had been coached or that their views had been influenced by anything other than their lived experiences.

3. It is also significant that the children described the close relationship that they had with both their parents and described many positive aspects about their father and the things they enjoyed engaging with him. They showed empathy and understanding of his diagnosis of PTSD resulting in him being grumpy, angry or withdrawn at times. They expressed shock and sadness about the separation.

4. They also discussed their experiences of their father’s behaviour post-separation, which was very different to his behaviour pre-separation. They experienced him as being increasingly angry and blaming of them and their mother, and that he would insist on engaging them in challenging and inappropriate conversations, which made them feel guilty and under stress. They felt that the father’s accusations against their mother were unfounded. They felt the need to defend her, but also felt scared to do so. They found it difficult to reconcile the father’s dislike for the mother and her family and the experiences that they had of their father and the love they thought he had for their mother pre-separation.

   85. There was a strong sense that the children have felt their father has been unable to ‘hear’ them and has no understanding of the impact of his behaviour has had upon them. They spoke about a lack of acknowledgement by their father for his behaviour. They strongly rejected their father’s belief that their feelings toward him have been influenced by their mother. Words such as disheartened and given up were used when discussing attempts to have their father understand their recent experiences of him. The children are, first and foremost, seeking an acknowledgement from their father of his behaviour and contribution to their current situation, and a genuine apology from him. Should they receive such an apology, along with demonstrated change, the children expressed a greater sense of optimism about their relationship with their father and in being able to spend more time with him.

5. That paragraph is particularly significant, and it is most unfortunate that it seems that only recently the father has been able to recognise that the children have expressed their views and feelings and that he has heard them. He acknowledged this in court on 11 November 2019. What he has heard, I do not know.

6. The reporter was very concerned about the father’s presentation at the interview and was unable to conduct a robust assessment due to this:

   93. Mr Reesing’s perception/experience is that this deterioration was caused by Ms Reesing and the extended maternal family. He seemed to have no capacity to consider any narrative other than Ms Reesing has purposefully and maliciously attempted to alienate the children from him, in an attempt to hurt him. Mr Reesing’s anger toward Ms Reesing (and the maternal family) was palpable at interview. It was expressed in an uncontained and vitriolic manner. Mr Reesing’s narrative demonstrated that he blames Ms Reesing and her family for his current circumstances, in which he views himself as having lost everything (his relationships with the children; financial independence; job security). Secondary to Mr Reesing’s anger toward Ms Reesing, is his anger toward a system he views as intrusive, damaging and unjust. But here too, Mr Reesing attributes blame for the Court’s involvement with his family upon Ms Reesing.

   94. Mr Reesing’s behaviour and presentation throughout this assessment was concerning for a number of reasons. First and foremost, Mr Reesing’s inability to contain his anger in an assessment environment, whereby he was aware of the possible implications of such behaviour, may be indicative of an inability to curtail his behaviour in an unstructured, unmonitored environment, i.e. in the presence of the children. Certainly, the writer was left with little confidence in his ability to do so.

   95. What is unclear to the writer, however, is how much Mr Reesing’s presentation can be attributed to, to use his expression, his experience of the family report process and, more broadly the Court process, as an experience of extreme duress, versus how much this can be attributed to underlying mental health issues. Further assessment of this seems necessary in being able to formulate appropriate recommendations for future parenting arrangements.

   98. Mr Reesing’s anger and sense of grief and loss is perhaps preventing him from being able to see the confusion and fear his behaviour is causing for the children. He appears to lack insight and understanding that they are ill-equipped, at their young ages, to manage his emotions and to understand his perception of the circumstances, which differ vastly from their own.

7. What the reporter says at paragraph 98 remains relevant.

8. She was unable to make any long-term recommendations and pointed out that the difficulties with the assessments of the father’s mental health was that they had been carried out in the employment context and did not consider whether his mental health had an impact on his parenting capacity and presented a risk to the children and/or the mother. The assessments also did not address the father’s capacity for developing insight and changing his recent interactions. She expressed the view that that information would be essential to progressing the matter. She thought that a psychological assessment which included psychometric testing may provide more information relevant to the parenting matters than a further psychiatric assessment.

9. She stated that the children want to have a relationship with their father, but they want that relationship to be happy and healthy, and that from their perspective, the father would need to work on his anger towards the mother and her family and be able to shield the children from the conflict. She predicted that in the absence of him doing so, and if the children were to continue to be exposed to their father’s anger towards the mother, it is likely that the children would increasingly resist spending time with him, particularly in the case of the older children, who are more aware of the parental dynamics. Unfortunately, this is what has come to pass. 

Dr B

1. A psychological assessment of the father in this context did not take place but Dr B, who is a forensic psychiatrist who often prepares reports for the Court, undertook an assessment of the father.

2. It was apparent from Dr B’s report that the father was annoyed and resentful at having to attend for another assessment and was annoyed that he had to wait while Dr B read the report of Dr C, who had recently undertaken an assessment of him for his employer. The father feels that he has been unfairly judged as a parent given his job involved seeing people in many different situations and dealing with different situations, including ones where Child Protection is involved. He feels that his past history of PTSD has been used against him as a weapon by the mother to block him from spending time with the children. 

3. What is clear from Dr B’s report and which is illuminated further in Mr F’s report is that at the same time as dealing with challenging family law proceedings, the father was also experiencing challenges at work, experiencing discrimination because of his PTSD diagnosis but also through work colleagues undermining him and gossiping about the breakdown of his relationship. Dr B records that the father finished his interview with a plea to “help me put my family back together as my kids need me and I need them” and he repeated that sentiment in court.

4. Dr B observed that the father’s initial presentation was “of an angry man who was resentful at having to undertake the time and expense of yet another psychiatric assessment”.

5. This aspect of his presentation suggests that he might become unreasonably angry when he feels that he has been treated unfairly by his employer and when he has been unfairly excluded from spending time with his children since his separation from Ms Reesing.  Mr Reesing’s tendency to respond with irritation and a feeling of being treated unfairly was evident at interview and during his assessments by a Dr D, who prepared assessments for Mr Reesing’s employer. Despite this, the father was then able to settle and give a coherent account of his circumstances and his distress at being excluded from his children’s lives. 

6. He expressed frustration that he had made several attempts to sort things out, but had no response from the mother or his lawyers and said he wanted to sit down with her to try and work things out. In Dr B’s report dated 17 August 2018, the fact that the father expressed and continues to express today his frustration about the mother not being willing to sit down and work things out with him shows his lack of insight and failure to take any responsibility for his own conduct and how his conduct impacts other people.

7. Dr B referred to the stigma in the community of mental illness and that it is probably more common amongst health care workers. He found that there was no ongoing symptoms of PTSD. It is said the variability of the father’s presentation over the preceding year suggests that he is vulnerable to external stresses and may not have fully recovered from the PTSD.

8. Order 3 of the consent orders dated 8 May 2018 read as follows:

   3. The father forthwith do all such acts and things necessary to attend upon Dr B, Psychiatrist, for the purpose of the preparation of a report (“report”) providing a comprehensive assessment of his psychiatric state, and that:

   a. Dr B be requested to address:

   i. The father’s relevant history (including relevant medical history);

   ii. The father’s psychiatric, psychological and emotional health and functioning; any relevant diagnosis or description of his personality, presentation or functioning;

   iii. If appropriate, suggested treatment or management, and the likely prognosis;

   iv. Any incidents of the father’s functioning that may be relevant to his capacity to parent and meet the needs of the children;

   b. The costs of the report be borne by the father.

9. The scope of Dr B’s task is clearly defined.

10. Unfortunately, Dr B’s report has added to the difficulties in this case rather than reducing them because of comments he makes at the end of his report which go well beyond his remit.

11. Whilst Dr B acknowledged that he had not interviewed the mother or the children, he said that based on his assessment he could see no reason why he should not be allowed to spend time with his children, and that given the amount of time that had passed since he last saw the children, it should commence with supervised time, quickly increasing to unsupervised time and then overnight time. 

12. Dr B then went on to comment about the research that speaks about the harmful effects on children of ongoing conflict. It is most unfortunate that Dr B made these comments as, understandably, they are something that the father has latched on to. Dr B was not in a position to make an assessment about time, if any, the father should spend with the children. His task was to assess whether or not the father had any current psychiatric condition and he found that the father did not. Looking at the body of his report and the material he summarised, the omission of any reference to the family report is glaring.

13. In D & SV [2003] FamCA 280 the Full Court observed that it is important for the Court to be aware that the expert may be applying his or her own views about a matter which is for the Court and not the expert to decide.

14. In Gaffney & Gaffney [2012] FamCAFC 140 the Full Court discusses the principles applying to expert evidence. In that case the family report writer went beyond his expertise to comment on the merits or otherwise of the mother’s proposed relocation and relocation generally. That was the ultimate issue for the trial judge to determine.

15. Evidence given by experts should be confined to opinion based on identified facts which demonstrate that the opinion is based on the expert’s specialised knowledge based on their training, study and experience. See s.79(1) of the Evidence Act 1995 (Cth); Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.)

16. As I said to the father, my concern is not with respect to him having a psychiatric condition, but that the level of anger he feels towards the mother, which is palpable and which is unrestrained, is what represents the risk. Unfortunately, in this regard, Dr B’s report caused mischief in this respect by making comments on matters without having a complete picture and that was outside the scope of his expertise and was not his role.

Family therapy

1. The parties attended Mr A for reportable family therapy. The father made clear at the commencement of the trial that he takes issue with Mr A’s report and raised concerns about his professionalism and capacity. He raised concerns about omissions from the report. What is clear from the report is that whilst there was some initial work with the younger children and the father, and a meeting between V and his father, Mr A described all his interactions with the father as being fraught with tension, given his clear resentment of the situation and that the father showed generalised aggression at having a third party present when he was seeing his children. At times, he was abusive to Mr A, and the father was very clear that, in his view, he should see all the children and also expected to meet with the mother. Mr A said he explored the possibility of the father’s parents attending the therapy to make it less distressing for him, as the father had spoken about the support he was receiving from them.

2. V had one meeting with the father where he tried to express to the father his views. Mr A says that the meeting was tense and that V became heated and upset and that the father tried to control the meeting and did not show any empathy or understanding of V’s views. X refused to see the father. W agreed to a meeting with the father, in which she was anxious and distressed and cried for most of the time.

3. Things deteriorated in January 2019. The younger two children went with Mr A to the father’s home on 23 January 2019. Mr A describes the father’s conduct as being aggressive from the beginning and that he attacked the writer, saying he refused to pay for his time and refused to take the matter back to court, and his aggression increased. Mr A says he did not hear from the father until May 2019, where he stated he wanted contact with all his children and wanted an action plan with all of them and not just a select few. He rejected having his parents involved in the process and said he wanted constructive involvement with his family without excessive involvement of external families. Again, this mirrors the view the father expressed in court.

4. Mr A determined it was not useful to continue attempts at therapy, as the father was not prepared to fund the sessions and criticised any efforts that he made. He noted that the father had become self-represented, which he thought was unfortunate. He expressed concerns about the risk of psychological abuse if the mother was to meet the father and that the children could also be exposed to risk of psychological harm if they saw the father unsupervised. Mr A expressed the view that he thought it was no longer safe to see the father, as he was “demanding, controlling, not able to prioritise the needs of the children over his own and gave the indication that he was consumed by anger about Ms Reesing and the journey post-separation, and he had no capacity for self-reflection”. He thought that further intervention was inappropriate, given the lack of any capacity by the father to negotiate, challenge or create change.

Mr F

1. Mr Reesing sought to rely on the report by Mr F to show evidence of his current functioning, rather than relying on outdated reports. He describes the challenges and distress that the father felt with what happened at his workplace, including behaviour of his colleagues engaging in malicious gossip about his marital difficulties and the way management dealt with those behaviours, and that has led to an accepted WorkCover claim.

2. Mr F says he administered the clinical administered interview for PTSD for the DSM-5 and found that the father’s scores are well below the threshold for PTSD, that his anxiety and depression scores were slightly above the clinical cut-offs, and that he had a score that indicated that he had a moderately high degree of anger. He then referred to the treatment and progress of the father. The father was engaged in 25 sessions with him in the last two years and continues to see him on a monthly basis. Whilst the focus has been on returning to work and addressing his capacity to function in the workplace, they have also worked on his family situation and his deep grief at the loss of his relationship and the loss of his children.

3. The father vehemently denied there ever being suicidal thoughts and potential risk to the children and talked about occasions of feeling the futility of the proceedings and attempting to “give up on his desire for access rights in relation to his children” and also referred to “a strong sense of injustice at the inability to consider his rights as a father and the anger to which this leads.” Mr F said that the father has improved during a course of treatment, including insight into his psychological condition and the problems he faces and applying cognitive strategies. The father has been able to return to his work and maintain other activities with friends and family.

4. Mr F refers to readministering the tests of 31 October 2019 and says that the test confirmed that the father did not meet the criteria for PTSD, had low scores on the anxiety and depression scales, and had a low to moderate score on his level of anger. Mr F commented that this occurred in the context of the ongoing evidence of inappropriate workplace behaviour by his colleagues and the lack of his employers remedying that and what the father sees as misleading and false assertions around his dangerousness to the mother and children. He says that the father acknowledges that he:

   “is liable to react in an irritably distressed manner when he is worried or perceives that there has been capricious, unfair or harsh treatment of himself or others.  He also acknowledged that he has too often been unaware of how he can present to others when he is thus distressed”.

1. Mr F says that the father acknowledges that he does communicate in a direct, blunt and irritable manner at times and that he has developed some insight with respect to this and the need to respond in a productive and emotionally appropriate manner, despite any provocation he might perceive. I accept that appearing in court, particularly without a lawyer is a stressful experience.

2. He goes on to discuss the reports in the family law proceedings and acknowledges his limitations in understanding the family law process. He speaks about the father not having any psychiatric condition and then expresses the view that the family therapeutic support could have been instrumental in helping the family and developing a joint parenting plan but that was blocked by the family therapist.

3. This is not an accurate reflection of Mr A’s report. Mr F goes on to make recommendations about there being another assessment of the father’s fitness to parent and that therapeutic support again be attempted. He says that the father understands he must display a demeanour and behaviour that focuses on the wellbeing of the children and he refers to any involvement of the parties and the professionals to focus on deriving the best solution for the children “and not one that prohibits the access of Mr Reesing to them without fully testing his capacity to again be the loving parent of them.” This is clearly the father’s perspective with respect to the experts but it is not one I accept.

4. What is unfortunate is that he has not addressed the concerns as to risk which arise particularly from the family report and the report of the family therapist. This risk is not because of any psychiatric condition but rather, his unremitting and barely contained anger towards the mother and his inability to shield the children from this.

5. The reason for referring to the report of Mr F in some detail is to show the father’s perspective of how he has addressed issues of concern given the absence of any trial material from him. It is clear in that report that the father is attempting to address the issues of concern about him and that he is expressing some token acknowledgement of his demeanour and behaviour but also, continues to focus the blame on others and shows some rigidity in what should occur. It is not simply a matter of being blunt or even being rude. His behaviour is far more concerning. Mr F goes far beyond his expertise by making recommendations as to the next steps in these proceedings after acknowledging his lack of expertise in family law matters. The father did not seek orders for further arrangements for family therapy.

6. The fact that the father seeks a mediated agreement shows a lack of insight as to the impact of his behaviour. Without this it is unrealistic to expect the mother to feel safe in such a position.

Legal principles applicable to this case

1. The father made strong criticisms of the family law system. It is not appropriate to engage in this debate. The law can be a blunt instrument. There is also no doubt that the delay in the court because of under-resourcing can add to the conflict.

2. It is necessary to refer to the fact that the Family Law Act talks about the rights of children and the responsibilities of parents. The court is not concerned with rights of mothers or fathers. It is the children who have the rights and the parents have obligations and responsibilities to them. Section 60CC(2) and (2A) of the Family Law Act reads:

   (2) The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3. Section 60CC(3) sets out various additional considerations the Court must take into account including the children’s views. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.

4. The focus is on the safety of the children and whether there is an unacceptable risk to them. The risk the court is currently concerned with is not due to any psychiatric condition of the father and it is clear from Dr B’s report and subsequent reports that that was not the issue.

5. What the court cannot ignore are the very serious concerns expressed by the family report writer and the family therapist and the father’s palpable, continuing anger, resentment and failure to appreciate his own role in the circumstances he finds himself in. It is clear that the father has felt unheard throughout the proceedings in that, whilst he did not want to fight and cause further trauma, as he referred to it, he also wanted to ventilate his concerns. The court gave him some leeway to do so and he referred to psychological harm caused by the family law system and made comment about the long-term devastation and impact on people. He referred to his job as a health care worker and attending suicides of men as a result of the family law system. He was keen to stress to the court, the experts and the lawyers that they all needed to understand that their actions had consequences on the children. He spoke about the time that he has lost with his children and not being ever able to regain that and talked about the fact that no one was putting a constructive outcome with an end date to him, so that he was suffering a penalty that never ends.

6. The father will not accept that the difficulty in navigating any way forward is the fact that the father does not acknowledge his behaviour. Whilst clearly, dearly wanting a relationship with his children, he sees it very much in black and white terms, and that it should be as he wants it, with all the children and him also being able to talk to the mother.

Determination of issues in dispute

1. The ICL opposed the reports of Mr A and Ms G being provided to the Magistrates’ Court of Victoria in the upcoming Magistrates’ Court proceedings, noting that the reports are old and are in the context of these proceedings. The court is generally slow to give permission for reports to be provided in other proceedings, as they are done so without context, and in this case, certainly, hotly challenged the orders of the court. These reasons provide a better context. I decline to make the order that the mother seeks in this regard.

2. Hopefully in time the father will be able to mend his relationships with his younger children. Sending letters and cards which are child focused and do not denigrate the mother and her family may assist. It is clear from what both the report writer and the family therapist have reported that the three older children need to hear the father acknowledge their feelings and apologise. He may disagree with them but if he does not acknowledge the reality and validity of their feelings then there is little hope for change.

3. The younger children clearly miss their father but all of the children need to feel safe and that they will not be exposed to his negativity towards the mother and his anger.

4. There is no simple solution and fixed time frame for repairing these relationships. What is missing from the father’s statements in court is any acknowledgement of how his behaviour and conduct has contributed to the situation he finds himself in. Insisting on meeting with the mother is not going to advance matters but only cause further anxiety.

5. It is positive that the children are seeing the paternal grandparents again. Hopefully in time the children will want to renew their relationship with their father. For this to happen the father is going to need to acknowledge the children’s views and be responsive to their individual needs and time frames. The mother will also need some acknowledgement that the father acknowledges his behaviour and has taken responsibility for it.

6. The parties have not sought orders for family therapy and it would be counter-productive to order. The father may be assisted by a counsellor with expertise in this area whether to work with him alone or with any of the children should they be willing. He would need to feel comfortable with that professional and that process.

7. The father says that it is unnecessary for the mother to vet his cards, letters and gifts, as he has provided a card to Z without issue. The concern is whether or not the father would restrain himself from making any negative comments about the mother or any of the children in his communications with them.

8. I find it is appropriate and in the children’s best interests for the mother to be able to vet those communications. Hopefully, the father will be able to communicate with the children positively in this way and also acknowledge his understanding of their feelings and views. The best outcome would be that in time the father is able to repair his relationship with all of his children. The father needs to go at the children’s pace and be responsive to them individually.

9. With respect to the orders that the father seeks in relation to telephone contact with the two youngest children, and that being with him contacting the mother via his phone, I accept the submissions of the ICL that that order is unworkable, given that there are no spend time with orders, and also the likely disruption and anxiety that would cause for the mother. Receiving calls from the father three times a week is likely to be counter-productive. The mother’s Counsel points out that the consent orders provide for the mother facilitating the children wanting to communicate and spend time with the father. I decline to make the order that the father seeks.

10. Finally, the father seeks to be listed as an emergency contact at the children’s schools. One of the reasons he seeks that is because of his role as a health care worker. This is opposed by the ICL and the mother. It is again an example of an order not being workable in the context of the father not spending time with the children and there being intervention orders in place. The orders do provide for the mother to inform the father of significant issues. I will not make the order that the father seeks in that regard.

11. I will order that the parties be permitted to provide these reasons to any medical professional either of them or the children work with. As I foreshadowed I will order the ICL to meet with the children to explain the outcome of the proceedings to them. It is important for them to hear that their parents were able to reach agreement. It is very important for them to hear that the father has heard and acknowledged their views and that he dearly loves and misses them and wants to reconnect when they are ready.

12. I indicated to Counsel for the ICL that I thought it is important that the ICL meet with the children to explain the outcome to them and the fact that the parties reached an agreement, and that, importantly, the father acknowledged their feelings and wants to be able to reconcile with them if he can. I will discharge the ICL in 30 days to enable her to do this.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Harland.

Date: 20 November 2019