Roskam and Roskam

[2018] FamCA 173

FAMILY COURT OF AUSTRALIA

ROSKAM & ROSKAM [2018] FamCA 173

FAMILY LAW – CHILDREN – Final orders – Parental responsibility – Best interests of the child – History of illicit substance abuse – Where the parties are incapable of co-parenting – Sole parental responsibility given to the mother.

FAMILY LAW – CHILDREN – Findings of risk emanating of threats by father and intimidation.

FAMILY LAW – CHILDREN – Final orders – Spend time with – Best interests of the child – Where the children express a desire to spend limited but regular time with the father – Where the father has not sought assistance for psychiatric needs or illicit substance abuse – Where the mother’s anxiety is heightened by the father – Order for the children to spend supervised time with the father on six occasions per year.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Roskam

RESPONDENT: Ms Roskam

INDEPENDENT CHILDREN’S LAWYER: James Bult

FILE NUMBER: MLC 1335 of 2015

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE:

16 and 17 January 2017;
2 and 3 February 2017;
9 and 10 February 2017; 13 February (judgment reserved); and
31 May 2017 (re-opened and reserved)

13 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms S Hession

SOLICITOR FOR THE RESPONDENT: Guthrie & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr L Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Madison Branson Lawyers

Orders

1. All previous orders be discharged, save for paragraphs 9 and 10 of the Order made on 16 December 2016 which shall remain in full force and effect.

2. The mother have sole parental responsibility for the children C born … 2005 (“C”), D born … 2008 (“D”) and E born … 2011 (“E”) (collectively, “the children”).

3. The children live with the mother.

4. The children spend time and communicate with the father, supervised by a contact service nominated by the mother (such nomination to be made within 7 days):-

   a.Between 4 pm and 6 pm on the second Friday in February;

   b.Between 4 pm and 6 pm on the second Friday in April;

   c.Between 4 pm and 6 pm on the second Friday in June;

   d.Between 4 pm and 6 pm on the second Friday in August;

   e.Between 4 pm and 6 pm on the second Friday in September; and

   f.Between 4 pm and 6 pm on the second Friday in December;

   Otherwise the father communicate or spend time with the children as may otherwise be agreed between the parents from time to time and confirmed in writing.

5. For the purpose of paragraph 4 herein:-

   a.The father contact the service nominated by the mother no later than 14 days prior to each scheduled spend time occasion to confirm his intention to spend time with the children and his capacity to pay for same, failing which that spend time occasion shall not take place;

   b.The location of the supervised time to be agreed as between the mother, father and the supervisor;

   c.All communication shall take place between the father and the supervisor, and the mother and the supervisor; and

   d.The father bear all costs associated with the supervision.

6. In the event that the children (or any of them) are too unwell to attend any of the time referred to in paragraph 4 herein:-

   a.The mother contact the contact service to advise of the illness and request that they inform the father of same;

   b.The scheduled spend time occasion not take place;

   c.The mother produce a medical certificate and provide same to the father by registered mail and to the supervisor within seven (7) days of the missed spend time occasion; and

   d.A make-up spend time occasion take place within 14 days of the missed spend time occasion (or as soon as practicable thereafter if the illness continues beyond 14 days) on a day and at times as agreed between the mother, father and supervisor.

7. Within seven (7) days, the father provide to the mother’s lawyers details of a Post Office Box or residential address and contact telephone number, and otherwise keep the mother updated in relation to these contact details in writing, by registered mail, for the purposes of communication referred to in paragraphs 8 and 9 herein.

8. The mother keep the father appraised of any significant issues concerning the care, welfare and development of the children (or any of them) by registered mail to the address provided by the father in paragraph 7 herein, including but not limited to providing the father with copies of school reports and school photograph order forms, and in the case of a medical emergency use her best endeavours to ask any medical treater of the children (or any of them) to contact the father by telephone on the telephone number provided in paragraph 7 herein to advise him of same.

9. The father be permitted to communicate with the children (or any of them) by sending cards and letters, which the mother provide to the children (or any of them) subject to her deeming the content of same to be suitable and the mother facilitate the children (or any of them) sending cards and letters to the father, with:-

   a.The mail to the children to be sent to J Street, Suburb K, Victoria, … or such other address as the mother may provide to the father in writing, by registered post; and

   b.The mail to the father shall be sent to the address provided in paragraph 7 herein.

10.Save for the communication referred to in paragraphs 7, 8 and 9 herein, there be no other communication between the father and the mother, and in particular there be no communication between the father and the mother by email or text message.

11.Save for the time spent and communication between the children and the father referred to in paragraphs 4 and 9 herein, the father not communicate directly with the children, and in particular there not be any communication between the children (or any of them) and the father or someone else on his behalf by any direct means, including by telephone and/or other electronic means save for with the mother’s prior written consent and/or invitation.

12.I reserve to the parents and the independent children’s lawyer liberty to apply in relation to supervised time and to request that any such application be listed before me for telephone mention as soon as possible subject to my availability.

13.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

14.The mother be at liberty to provide a copy of the decision and reasons for judgment in this matter to:-

a.The proper officer of Victoria Police;

b.The proper officer of the EE Contact Service (or such other Supervised Contact Service as may be nominated by the mother pursuant to paragraph 4 herein);

c.The proper officer of any school attended by a child and childcare organisation; and

d.Any therapist or counsellor consulted by her or a child.

Both parents be and are hereby at liberty to publish these reasons for decision to any medical or legal or like practitioner retained by him or her and to any court of the State of Victoria which deals with an application between the parties for a domestic violence order, a variation thereof or an appeal therefrom.

15.That all exhibits tendered in these proceedings remain on the Court file.

16.That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner at the expiration of one calendar month unless an appeal is lodged.

17.In respect of costs:-

a. Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);

b.    Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;

c.    My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);

NOTING THAT any costs so ordered may include the costs of making the application for costs.

18.That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roskam & Roskam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1335  of 2015

Mr Roskam

Applicant

And

Ms Roskam

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The children

The two versions of events

The parents’ relationship

The period between separation and February 2015

What has occurred since proceedings commenced in February 2015

Credit of the witnesses and expert evidence

Credibility of the mother

Credibility of the father

Parental Responsibility

The nature of the children’s relationships

Family Violence

Parental Capacity

Dr L’s evidence

The Family Consultant’s s 62G reports

Ms B’s evidence

The Family Consultant’s position at the time of trial

The reports prepared on behalf of the father

Dr N

Mr O

Extent of the father’s insights into his own behaviour

The Drug Screens

Behaviour change program

The EE Contact Service

Summary of the father’s parenting capacity

Summary of the mother’s parenting capacity

The father’s attitude towards the responsibilities of parenthood

The likely effect of any changes in the children’s circumstances

Is it preferable to avoid further proceedings?

The primary considerations

Conclusion

Introduction

1. These are parenting proceedings between Mr Roskam (“the Father”), age 43, and Ms Roskam (“the Mother”), age 40, and relate to their three children, C, born in 2005, D, born in 2008 and E, born in 2011 (“the children”). The parents have competing proposals about parental responsibility and what time the children spend with the father.

2. The parties agree that the children should live with the mother. The mother seeks sole parental responsibility, and that the children spend supervised time with the father on six occasions per year; her proposal is supported by the Independent Children’s Lawyer (“ICL”). The father seeks that the parents have shared parental responsibility, and spend unsupervised time with him in accordance with a graduated scheme that eventually sees them spending time with him every second weekend from Friday after school to the commencement of school on Monday and every other Thursday from the end of school until 8.30 pm. He also proposed that they spend half of school term holidays and a minimum of three weeks of the long summer holidays with him.

3. The parents have entirely disparate accounts of what occurred in the relationship and each accuses the other of being a risk to the children’s emotional wellbeing. The father alleges that the mother is a “narcissist” and a “psychopath”.  The mother alleges that the father has a longstanding history of drug use, that he committed family violence post-separation, and was manipulative of her during their relationship and since. On her case, the father has psychological disturbances; supported by the expert evidence.

4. The mother and father commenced their relationship in 2002 or 2003.  At the that time, the mother separated from her ex-husband with whom she has one child, Mr P.  Mr P is now an adult and resides with the mother and the children.

5. The parents married in 2006 and separated in 2012 when the father left the former matrimonial home. The father continued to see the children between 2012 and January 2015 on an ad-hoc basis and the parents maintained a relationship that has been described by the single expert psychiatrist as one of “co-dependence” during that period. 

6. In January 2015, a series of incidents led the mother to apply for an intervention order against the father and the cessation of the children’s time with their father in February 2015. At that time, the two oldest children were refusing to spend time with the father. The father initially also applied for an intervention order against the mother but withdrew his application in October 2015 when he consented to an order being made against him naming the mother as the protected person.

7. The father filed an initiating application in this Court in February 2015 seeking that the children live with him and spend time with their mother each alternate weekend from Friday to Monday and each alternate Wednesday evening. The mother filed a response in March 2015 seeking shared parental responsibility, for the children to live with her and to spend supervised time with the father. Property orders were also sought by the parties at the time. The financial aspect of the proceedings was resolved by consent on 25 May 2015.

8. At the first return date on 22 June 2015, both parties consented to undergoing a psychiatric assessment, for the children to live, in the interim, with the mother and for the father to have time with the children supervised by the EE Centre at such times as agreed with the mother and could be accommodated by the service. That arrangement commenced in July 2015 with time later specified to be fortnightly, until the date of trial. On that date it was further ordered that an Independent Children’s Lawyer be appointed to represent the best interests of the children. In due course, James Bult, solicitor was appointed as the Independent Children’s Lawyer (“ICL”).

9. In April 2015, the mother filed a response to an application in a case seeking, amongst other orders, that the father undergo drug screens. On 19 October 2015, the father consented to completing a Men’s Behaviour Change Program and making himself available for drug screens within 48 hours of receiving a request from.

10. On 25 May 2016 the parents attended a conciliation conference with Registrar Riddiford. Financial issues were resolved and final orders effecting an alteration of property interests were made, by consent.

11. The parties and, through them, the children have benefitted from mediations provided by the Family Dispute Resolution Service run by Victoria Legal Aid. The first mediation was on 10 June 2016. The second was on 9 December 2016.

12. On 17 June 2016, I ordered that the father undergo reportable counselling with Ms B. The final hearing, which had been scheduled for early July 2016, was vacated to permit that reportable counselling to take place.

13. On 16 December 2016, it was noted the ICL had requested the father undergo drug screen testing for the presence of illicit substances.  Subsequently on 17 December 2016 I ordered the father to cause to be delivered to the subpoena clerk, a copy of each and every drug screen test requested by the ICL.  Exhibit “ICL4” are the results of the father’s drug screen tests. At that time, the father had attended one reportable counselling session with Ms B and had told her he would not return. The father has not completed a Men’s Behaviour Change Program, as ordered in October 2015. The father sought an adjournment of the final hearing on the basis that he would attend a behaviour change program. It transpired that his counsel had only that day researched and identified the program. I refused the application for an adjournment. 

14. The trial occurred over 6 days on 16 and 17 January, 2, 3, 9 and 10 February 2017. The father was self-represented and the mother was represented by Ms Hession counsel. Mr Marchetti of counsel appeared on behalf of the ICL. I am satisfied that the children’s interests have been well served by Mr Bult and his counsel, Mr Marchetti.

15. The mother and father each gave evidence and were assessed by a number of experts including the family consultant and a psychiatrist, Dr L, who were witnesses at the trial. The father also underwent reportable counselling with Ms B, who was a witness of the ICL, as was Ms Q, Mr R and Ms S of the EE Contact Service, which was the service that supervised the father’s time. The father sought to rely on Dr N, a Consultant Psychologist, and Mr O of T Psychology who attached reports about his treatment of the father to his affidavit. The father did not make Dr N or Mr O available for cross examination. The father also relied on his father Mr U Roskam, and his step-mother, Ms V as witnesses. They were not cross-examined.

16. The father brought an affidavit to Court on the first day of the trial and sought to rely on it; my orders of 8 February 2016 and subsequent orders of 17 June 2016 and 16 December 2016 granted the father leave to file out of time which he failed to facilitate. Most of the further affidavit could not be accorded any weight being unreliable hearsay or opinion evidence the father was not qualified to give. I did not permit the father to rely upon it. The mother had relied on the father’s earlier affidavit of 27 May 2016 to understand the case she had to meet. I permitted the father to rely on the first section of the affidavit filed on 16 January 2017, which set out the orders he now sought from this Court and otherwise allowed him to rely on the affidavit he filed on 27 May 2016. 

17. An application was made by the ICL to lead further evidence after judgment was reserved. That application was heard on 31 May 2017 and a further affidavit by the Principal of the EE Contact Service, Ms S, was accepted. None of the parties sought to cross-examine Ms S on her further evidence. 

18. This matter was mentioned on 13 March 2018 at which time the parties were advised that I would shortly deliver my decision. Each party confirmed that there had been no change in circumstances about which further evidence was required to be led. No party sought to re-open his/her case.

The children[1]

[1] Family Law Act 1975 Section 60CC(3)(g)

1. C is nearly 13 years old and started high school this year.

2. D is nine years old and a student in Year four.

3. E is seven years old and a student in Year two at the same school as D.

4. All children are in reasonable health and making reasonable progress at school.

The two versions of events

1. As I stated earlier, the parents had disparate accounts of what occurred both during the relationship and post-separation.

The parents’ relationship

1. The mother described the parties’ relationship as difficult due to the father’s drug use, moodiness and mental health issues. She says she discovered that he used cannabis in 2003 and he would go through periods of secretly using cannabis and other drugs. She says that when she begged the father to stop using drugs, he would go into a “silent mood” and refuse to speak to her or the children and refuse to eat for days. She said she would then do everything she could to appease him, reassure him that they all loved him and try to keep the children away if he was angry or moody. She says he would regularly leave the home for days or weeks at a time and says this was because she would not let him use drugs in their home. Her evidence was that during these periods, the father would change his banking details so she could not access funds which were ordinarily used for household expenses. She says on a number of occasions, the father threatened to harm himself and would leave suicide notes around the house for her to find. She says she encouraged the father to ring Lifeline for support, but he always refused. The mother’s evidence is that to the best of her knowledge, the father has never attempted to commit suicide. The mother says the father did promise to stop taking drugs on a number of occasions and went to Asia on three occasions (October 2006, January 2008 and August 2008) for two weeks at a time, to detox from his drug addiction. She says that his behaviour would initially improve but he would inevitably start using drugs again.

1. The mother says the father had very little involvement with the children, particularly when they were young. I am prepared to find that she was the primary carer of the children in their infancy but I am not comfortable with characterising the father’s involvement as being “very little.” The mother says he spent more time with them when they were a little older but rarely assisted with their day to day care or participated in decision making about their health and education. She says there were occasions when the father said he found the children overwhelming and he would retreat to their bedroom and refuse to speak to anyone. The mother worked full-time prior to the children being born and after taking maternity leave for the youngest child, she returned to work part-time. She says when she was at work, she put the children in childcare or had her mother or a friend assist with looking after them and that was the case even if the father had the day off work. Her evidence is that the father’s trip to Asia in August 2008 took place just one week after the birth of their second child, D, and the mother was left to care for their oldest child, C, who was a toddler, and the newborn on her own whilst she recovered from the caesarean birth.

2. The father’s affidavit said little about what occurred prior to separation but he deposed to spending as much time as humanly possible with his children outside of working hours. He says he frequently put the children to bed, read books and stories to the children and played various sports and games with them. He discussed his relationship with the mother and drug use with Dr L, the family consultant and to some extent, with Ms B. The father admitted to the family consultant and Dr L that he used marijuana during the relationship and told Dr L it was a self-medicating tool to deal with anxiety, which he had dealt with since childhood. He told Dr L that one of the reasons he smoked was because he felt controlled by the mother during their relationship. He stated that “throughout the relationship the whole relationship, he was ‘in a controlled trance’ and numerous times he had tried to ‘break free’.” He said he did this by going to his mother’s or a friend’s house for one or two days but then would have to return home because he had no money.  He told Dr L that the mother controlled everything. He said to Dr L that he stopped using marijuana on a number of occasions but the mother “continued to harangue and ‘just control’ him”, so he started smoking again. He described his relationship with the mother to Dr L as “pure hell”.

3. The father did admit in cross-examination that he used marijuana during the relationship and on rare occasions, he took speed. He says that was not to stay up for long shifts, as the mother had claimed, but on the rare occasion that he went into the city to go to a nightclub. He admitted that he initially hid his drug use from the mother.

4. The father vehemently denied going to Asia in August 2008 and maintained that he had only been to Asia twice. The father’s records with the Department of Immigration were subpoenaed and tendered into evidence.[2] The records show that the father departed Australia on 28 August 2008, that is 16 days after the birth of D, and arrived back in Australia on 9 September 2008. The passenger cards for those dates were also subpoenaed and also put into evidence.[3] The father admits that those cards contain his signature and are dated 28 August 2008 for the outgoing passenger card and 9 September for the incoming passenger card. Nonetheless, he maintained in cross-examination that the Department of Immigration records are wrong and he wrote the dates incorrectly on the passenger cards. That assertion, he says, is based on the fact that he had gone through his bank records which did not show any withdrawals or use in Asia and that he remembered when he took time off work. He also said it was wrong because he had checked with Flight Centre and they could not find any record of tickets for him on those dates and that was strange even though the dates were for 9 years ago. The father also says that although he did go to Asia, it was not to try and stop using drugs but because he needed to get away from the “controlling situation” he was in and get some “good relaxation”. When asked why he went alone, he said he invited the mother but she could never go because of work.

   [2] Exhibit “ICL 5”

   [3] Exhibit “ICL 8”

5. The parents separated on 18 March 2012 when the father left the family home. The mother’s evidence is that on 18 March 2012, she discovered that the father was once again, using illicit drugs and confronted him. She says that the father packed a bag and left the family home. She says she would not allow him to return until he had completed an accredited drug rehabilitation program.

The period between separation and February 2015

1. The mother’s evidence is that after separation in March 2012, she initially maintained a friendly relationship with the father and still hoped he would seek help for his addiction. She continued to pay for the father’s private health insurance until February 2015 in the hope that he would enter a drug rehabilitation program that could be covered by the insurance.

2. Her evidence is that she encouraged the father to spend time with the children after separation and he did so, mostly at the family home with the mother present. The mother said she was concerned about his mental health and his drug use and her concern deepened when he was retrenched from his employment in May 2012 and seemed to “withdr[a]w from the family and world”. She says for the following six months the father saw very little of the children and when the mother invited him to see them, he would often not return her calls for a number of days or if he spoke to her, told her he was smoking marijuana and could not get out of bed. She says he told her that his situation was her fault as she was refusing to reconcile with him.

3. The mother says in late 2012, the parents attended D’s swimming lesson together and she witnessed a small plastic zip lock bag of white powder fall out of the father’s pocket. She says when she confronted him about it, he denied that the bag was his. The mother says that following this incident she would not allow the father to see the children without her present and would not allow him to drive the children anywhere. She said that was because it was clear to her that the father’s drug use had escalated to use of illicit drugs other than marijuana and she was concerned about his capacity to care for the children on his own.

4. The mother says that she nonetheless continued to encourage the father’s time after the incident and would regularly suggest that he join her and the children for dinner. She says the father usually refused or when he did accept her invitation, would cancel at the last minute or not turn up. She said she used to tell the children that their father was coming to dinner but the children would become upset or angry if he cancelled. She says that after some time C would make comments like “don’t bother asking daddy he won’t come anyway”. The mother’s evidence is that when the father did attend, the children would enjoy spending time with him but the father would not usually stay for long. She said that was because the father found the noise and the intensity of the children too overwhelming. The mother says she also kept the father informed about the children’s sporting events and the father had only attended a handful of them until recently.

5. The paternal grandfather, Mr U Roskam and his wife, Ms V both swore affidavits that deposed to an incident Ms V said occurred in 2013, when E was approximately 2 years old. They both say they met the parents and the children at a park to play with remote control cars and when the mother got out the car she was screaming at the father; they both say this occurred for around ten minutes. They both described shock as they had never witnessed the mother behave in this way despite the father having previously told them that the mother was prone to fits of rage. The father was not asked about this in cross-examination. The witnesses were not required for cross examination so I regard their evidence as unchallenged. I will discuss the implication of this evidence in the context of the mother’s parenting capacity.   

6. The mother’s evidence is that in late 2014, the father’s behaviour escalated. She said “he became paranoid, erratic and aggressive…he was irrational.” She said the father would bombard her with calls and text messages, accuse her of cheating on him and would blame her for his behaviour. She said his behaviour made her believe he was taking illicit drugs again and she would become upset from reading his text messages. Her evidence is that she would shut herself in the walk in wardrobe so the children could not see her crying.

7. When cross-examined, the father agreed that in late 2014, his behaviour escalated, he said “I think it wasn’t [sic] the best behaviour but it was a normal reaction [sic] to what I had been through and what actually come out of it.” He said what he had been through was “financial abuse at very high levels for a very long time, psychological abuse and controlling abuse.” He said in December 2014, he was “in a confused state.”

8. The mother’s evidence is that from Christmas Day 2014, she started to set boundaries in terms of responding to the father’s text messages. Her evidence was that if the father sent one seemingly innocuous text, and she did not respond, she would soon receive a barrage of message. She says she had previously appeased him by responding but from Christmas Day 2014, she would sometimes stop responding to his messages. One of the examples produced was a series of 10 text messages annexed to the mother’s affidavit which she alleged the father sent to her on 1 January 2015 between 12.18 am and 2.51 am; the father denied that he sent them, he said he “believe[s] there could be parts of messages put in. I don’t believe they’re the whole truth and correct ones, and that’s all I will say on it.” As an example, two of those messages read:

   Last but not least!!! U wana know the real reason im not living with u its because of what u jyst did to me n ya best mate your way or no fn way for our whole time together n it took that many years for me to walk n the drug use was the only thing that kept me there that long the truth is gonna smash ya so believe what u like i need u good for kids n that’s all now hope it went just to plan i realy do good luk!!

   …

   All u will eva b to me now is a chiowowa…the smallest dog on the earth u make my skin crawl man man man ive neva thought so little of anyone in my hole life ev eva eva eva uk how could i have been so blind fk i feel good thats living whyd i wait so fn long??

9. The mother says in early January 2015, the father again said he would attend drug rehabilitation. She said that despite this, his behaviour continued to be erratic and in fact worsened.  

10. The mother’s evidence is that on 17 January 2015, C’s friend W came to their home with his mother, it was intended that W would stay for a sleepover. That afternoon, the mother says the father called to ask if he could go to the house and watch the cricket with C. The mother said she told him that C was busy with W and asked the father to come over another time instead. It is her evidence that the father did not accept that and started to text her incessantly. She says she ignored the messages because she did not want to be drawn into an argument with the father. Her evidence is that the text messages continued into the evening and then the father began calling her mobile phone, and when she ignored those calls, he then called the home phone, which she also ignored. She says that she felt very anxious about the father’s texts and calls and she later received a text message from the father saying he was coming over. She says she locked all the doors and was scared as to what the father would do. At the time, she had two girlfriends at her house. She says she did not hear the father’s car arrive but then saw his silhouette outside the house and realised he had been watching them through the window. C also told the family consultant that the father was “peeping through the window” that night. The mother says she became extremely upset and the children were scared. She says the father ultimately left but then she received a message from him saying he was coming back. She says C’s friend W refused to stay the night because he was frightened and went home with his mother. She says her girlfriends agreed to her request to stay for several hours after the father had left. They went home after 2.00 am. The mother described the anxiety she experienced on 17 January 2015 in terms of the following physical manifestations (which I observed her to experience in the witness box during this segment of her evidence as well as some of them at some other times):-

    a)She shook;

    b)She was tearful;

    c)She had trouble catching her breath;

    d)Her voice quivered;

    e)She wrung her hands.

11. When cross-examined about the events of 17 January 2015, the father agreed that he was unhappy about not being able to spend time with C on that day. He agreed that he sent the mother numerous text messages and phoned her on her mobile and at the house and then sent her a message saying he was coming over. His explanation for this was that he had to get some tools out of the shed to do a job the next day. He said that when he arrived there were five cars in the driveway so he parked out the front next door and walked up the driveway to go to the back shed. He says he walked past a kitchen window and saw a lot of movement in the house, including children running around and the mother standing in the kitchen with a glass of wine in her hand, laughing and having a good time with her friends. His evidence was that he did not want to cause conflict or embarrass the children, so rather than going inside, he sent her a message when he got home. He says he then sent a message that said “so that’s why I couldn’t see my kids. You were having a party and I wasn’t invited.” In his evidence, he seemed to say he should be commended on this. He said:

    I was disappointed. But I still acted in a way which most people probably wouldn’t have. I just – I didn’t do anything. I didn’t confront anyone. I just sent a few too many text messages as a frustrated, loving father.

12. When a series of text messages the mother alleges was sent by the father that night was put to him, the father said they were inaccurate. He says he sent parts of the messages but not the whole messages. He could not say what was missing.

13. The mother says that at approximately 6.45 am the next morning, she was woken by the father knocking on the front door and demanding to be let inside. She says after she refused, the father started knocking on her bedroom window. She again refused to let him in and he eventually left. When cross-examined about this, the father agrees that he knocked on the front door and the mother’s bedroom window but denied that his behaviour would have been frightening for the mother or the children. He said, as if it were an explanation, “I still live there. It was my house. All my clothes were there. All my personal items. I was still living there.” When it was put to him that C told the Family Consultant that he was scared by the father’s actions that day, the father denied that that’s what happened. He told his version of events this way:

    The truth of what happened that morning, I knocked on the door, didn’t answer.  I knocked on the window, she answered.  Said, “Go away”, at the start and I said, “I just want to talk to you”.  So she ended up opening the door.  I went in.  I ended up making her a coffee.  All kids were on the bed and we were chatting and having a good old time and I made [Ms Roskam] a coffee.  Now, I sat there for about 10, 15 minutes and I said, “Look, [Ms Roskam], I know what’s going on now.  We’re fully over.  I’m just going to get the rest of my clothes out of the bottom drawer there so I can actually take them with me”, and she then cried on the bed and said, “No.  We’re not finished.  We’re not finished.  Don’t take your clothes.  Don’t do it.”  And I still to this day haven’t got any clothes.  That is what happened that morning and that is the dead-set truth.  So, yes, I’m disappointed that that was put in that but that is actually what happened.

14. The mother’s evidence is that later that day, the father asked to see the children and she agreed because she was scared that a refusal might result in the father behaving even more aggressively. She says when the father arrived at the house, C was extremely upset with the father because of what had happened the previous night and refused to see him. E, the youngest child was happy to see her father and they walked to the local park together. D was at a friend’s house at the time. The mother says the father returned home with E approximately 30 minutes later, at which time, D returned home as well. The mother says that this time the father was agitated and jumpy. She says he tried to engage with the boys but both C and D were hostile towards him and said things like “you’re a dickhead and we hate you” and “why don’t you just leave and never come back”. She says that after this, the father became aggressive towards her by coming right up to her and threatening to take her to court so that she would lose the house and the children. She says this caused the boys even more distress and they became more hostile. She says she told the father to leave and at this time C picked up a cricket bat and yelled at his father to “get out”. She says that during this exchange the father was laughing. She says the father left but damaged a shrub in the garden on the way out and sped off down the street leaving skid marks on the grass and the road. She says the father was still laughing at this time.

15. The mother’s evidence is that she then went inside and tried to calm everyone down. She says she told C that his behaviour had been unacceptable. She says she then sent a text message to the father asking him not to contact her for at least a week. She says the father continued to send her text messages anyway.

16. The father’s version of events was quite different. When cross-examined about what occurred on 17 January 2015, he said:

    …The chain of events that actually happened that day.  I took – I went around there.  I took [C] – I took [E] down to the park.  And I will get to the bottom of it, because, I mean, [Ms Roskam] said that I turned up that day and I was laughing at nothing, I was looking into space like I was high on something, yet then let me walk my five year old daughter down to the park on my own, which I thought was strange.  Now, if I was acting like that, there’s no way you would let your daughter go down the park, would you?  Anyway, I go down the park.  I come back from the park.  [D] had caught up with us and [C] was riding in front.  I get back to the house.  I said to [Ms Roskam] that my dad spoke to me the night before and he said you need to move on.  You need to get your property settlement and move on.  It has been going on too long.  And I thought about what Dad said and it had been.  I actually said to [Ms Roskam] – the kids were in the backyard and I said, [Ms Roskam], we need a fair property settlement, and we’ve just got to live and let live.  Please.  It has gone too long.  And [Ms Roskam] turned around to me and said you would be lucky to get 30 grand and laughed in my face.  And I – my exact words were if you think I’m only worth that after all I’ve put in and what I’ve earned and done for you over the 10 years, I said that’s an insult, because I used to pay 50 grand a year tax, and you reckon I’m only worth 30 for all I’ve done.  I said that is an insult.  Then she raised her voice at me.  Then I stormed out of the garage, and that’s when [C] came running out with a cricket bat.  Now, they were out the backyard and that was what the whole of the chain of events happened.  It was about getting off with 30 grand and laughing in my face.  What did I do in response?  I drove off.  The bush was out the front, which I had carved into a love heart the day before.  I pulled the centre out of that.  Just one pull of the thing so it didn’t look like a love heart, because there was obviously no love there.  I jumped in my car and took off.  That’s the – yes.

1. The mother says the children’s next physical contact with the father was 24 January 2015 when the father attended Little Athletics. She says that E went to him but the boys were “stand-offish”. The father’s account was as follows:

   The next day at sports, [C] was a little bit standoffish with me for a bit.  [E] was for a little bit at the start.  That was correct.  Then after halfway through the meet, [C] was really good to me.  We were mucking around.  We were doing all that stuff, going to the next event.  Walking back to the car, [C] said to me, Daddy, we’re going to the BMX track tomorrow.  Do you want to come?  And I said of course I will, mate.  No worries.  I thought, everything’s good.  Then I messaged [Ms Roskam] later on and said can I come to the BMX track, and she said no, [C] needs space, not you.  And I said how can you say that when he was talking to me back to the car and we were looking pretty – everything was fine.  And she said that’s just what he needs, his space, and that’s when it all started.  Now, I – pretty hard to take.  As I said, I didn’t – I didn’t do anything.  I didn’t react even when [Ms Roskam] said you would be lucky to get 30 grant and laughed in my face.  I still just took it.  I walked off disappointed and I just took the centre out of the tree, just with one grab like that, just so it didn’t – a ball on a stick tree – so it didn’t look like the love heart I had carved it in because of her, and that’s what happened.

2. The mother says that later that week, the father became erratic and sent her many text messages. She says that week she was anxious and fearful because of the father’s text messages which she described as “erratic and anxious”.

3. Both Mr U Roskam and Ms V depose to the father’s erratic behaviour in January 2015. They both depose to a phone call that Mr U Roskam received from the mother in January 2015 where she told him that the father had put a letter in her letterbox which had scared her. They say Mr U Roskam then called the father and told him to stop harassing the mother. They say they did not speak to the father for a few days but the father then called them and read out a copy of the letter that he had put in the mother’s letterbox. They say that the contents of that were not threatening. Neither the mother nor the father say anything about a threatening letter in their evidence and since neither Mr U Roskam nor Ms V were cross-examined, I will say nothing further on this save that there is insufficient evidence upon which to make finding.

4. Another series of text messages was tendered as exhibits “W4” and “W5”. Those messages were dated 28 and 29 January 2015. The messages all have the same theme and similar content, I extract three by way of example below:

   Omfg!!!!! U dont deserve to even have kids n im going to show them exactly what yove tried n nearly succeded doing to make our kids and there friends everyone scared of me so u can live your ultimately betrayl in life what you’ve done dirty chawawa is so fn rong n boy r they gonna b shoked to know truth how could u do tjat to them to hide your lies makes me so.sock.so sick im gonna dedicate rrst of my days repaying u every single thing I owe yuis im not gonna leave me owing yous a cent not option omfg!!!!!!!!!!!to.our kids howww????

   Your weak gutless n selfish n making those kids beleive ya lies repulses me if u deny me my kids at park this weekend ill have dhs on ya doorstep to sort these lies these poor kids r gettn at the expence of thete sick father u have narcissism and its been bashn me for 14 years n my kids need to know ruth if u don’t reply by  830 priority one case at dh sim so concerned bout my kids now ur r not fit to even hav m with that sikness thete own father u tried to fill m with shit so u could liv ya lie n f me out of thete lifes man oman o man my diary is full n wen each one is old nuff all yall have is a surfboard!!! U want war but all ya gonna get from me iis fighting with my life to get those poor kids bak to me u r so so luky that they are everythn to me now.

   Sory don’t contact me again as of now there is a law against what u r doing to those kids n me n your narcassistic ways n world is bout to do a u turn authorities will b in contact tday asap text again n im going to the police.

5. When cross-examined by counsel for the mother, Ms Hession, the father agreed that he had sent text messages with similar content but disputed the ‘wording’; he said he believed the messages had been doctored. The father said the messages produced by the mother were not consistent with his phone records and she had been selective in the messages she produced because his phone records recorded that a greater number of text messages than the number that had been variously produced or annexed by the mother. The father was asked to produce those phone records and he did so the following day. The records were exhibited as “W12”. When initially cross-examined on those records, the father, Ms Hession and I all had a different view about how those records should be interpreted so that topic was tabled until the ICL had had an opportunity to issue a subpoena from Telstra to provide an explanation for those records. A statement was made by Mr X, a Security Liaison Officer at Telstra[4]. He explained that the text messages have an industry set limit of 160 characters and whilst customers are able to send messages longer than the limit, those messages are split into smaller parts no greater than 160 characters and then seamlessly combined once the message reaches its destination. When that explanation was put to the father as the reason why his phone records recorded more messages than those produced by the mother, he said he still didn’t believe the messages were accurate as there were “parts of it that I didn’t say”. I am satisfied that the discrepancy between the number of messages which appear on the father’s account and the number of messages received by the mother was adequately and correctly explained by Mr X. The father’s belief otherwise is unreasonable.

   [4] Exhibit “ICL 3”

6. There was one part of the chain of messages on 29 January 2015 in which the father agreed he wrote to the mother “…dhs have opened case yesterday morn n diagnosing your narcasism is the very first port of call we have to do to get those poor kids bak on trak if u care bout those children at all yiull understand why i have to do what i have to do what i am now u can n will beat it or manage it so we can all live again i promise”. When asked what he meant, the father said he was alleging that the mother “was ill with a personality disorder” and if she managed it they could live again “without the control”.

7. The father agreed that on 29 January 2015, he had reported to Child Protection his concern that the mother was trying to control the terms and conditions of the children’s access with him and that this was having a generally negative impact upon their well-being. The Department of Health and Human Services file was subpoenaed in the proceedings and that file was marked as a court exhibit “C1” at the beginning of the case. That file reflects that the report of 29 January 2015 was the first of five reports in four months.

8. The mother’s evidence is that on the morning of 31 January 2015, she was contacted by a friend who had seen a post on the father’s Facebook page that the friend thought was about the mother and had contacted her because she was concerned about the mother’s welfare. That post is annexed to the mother’s affidavit and reads:

   How anyone on this fkn planet could lie to there own kids to make them scared of their own father who loves them more than life itself !!! in the hope they can get him out of there lifes permanently so they wouldnt get caught livin there sheer fkn bullshit murderin nasasistic immoral cheatn lieing pathetic life that they have tried to hide for so long absolutely fn beyond me nice try tho u fn heartless murdering pieces of fn dirt!!! To even just think of doin that to ya own kids should come with a 20 year prison term but to actually do it !!! Has to b life !! n if those three kids wernt my whole world id be doin three life sentences now n do every day of it standing on my fukn head in the slot with Bronson!!!! Guaranteed!! I need help exposing these murdering narssistic fuks in front of all that have been manipulated to beleive there lies against me all this time. Over my dead fn body will these weak gutless heartless uneducated fuks continue this child abuse n attemts to kill me watch this space!!?

9. The mother’s evidence is that she felt very threatened when she saw the father’s post and went to the Suburb K Police Station to report the father’s behaviour. There Constable Y issued a Family Violence Safety Notice which was returnable on 2 February 2015; an interim intervention order was issued on that date against the father, naming the mother as the affected family member. This was the first proceeding under state domestic violence laws.

10. During cross-examination, the father admitted to posting the Facebook post and that it referred to the mother. He agrees that he said the mother was a liar, a child abuser and should go to gaol for life. Ms Hession, counsel for the mother, put to him that he expressed a threat to kill the children that he would carry out if it wasn’t for the fact that they were his whole world; he said that was definitely not the case.  She put to him that the three life sentences referred was one for each of his children’s lives. The father’s response was that he meant to say “two” rather than “three” life sentences because he was contemplating life sentences being imposed for the death of the mother and her boyfriend, not for any child. The father said he regretted what he wrote now but he also says that on the morning that he posted the Facebook post, he had showed his intended post to Constable Z from Suburb K Police Station. He said:

    Now, I showed her the message before I posted it. I went and gave her my chain of events, what had happened, and the police suggested I put an order on [the mother] to stop the psychological and financial abuse, which I tried to do, but because it was Saturday it was closed, so I couldn’t. Now, Constable [Z] has seen that message and I said, “Look, this is” – and she – afterwards, she heard my whole story. She said, “Look”…she goes, “I’m not going to say post it, but I’m not going to say don’t. As far as we’re concerned, there’s no threat.” Then I hit post.

11. No evidence was called by the father from Constable Z. When Ms Hession pointed out that Victoria Police subsequently took out a Family Violence Safety Notice and obtained an interim intervention order against the father on the basis of the post just two days later, the father said that the mother had initially gone to the police station and spoken to Constable Z and was turned away because Constable Z said it was a family law matter and she would have to go through the Family Court. He says the mother went back to the police station with a friend three hours later in such a state that a different police officer applied for the order instantly. If true, how the father could possibly know that was not explored by Ms Hession who moved on with her cross-examination.

12. I am satisfied that the mother was genuinely scared by the father’s email which mentioned life sentences as a penalty for what one, including the wife, could reasonably assume was the criminal offence of murder. However, having considered the email objectively, I conclude that the father was not threatening to kill the children or any of them. I do not accept his explanation that he meant to refer to two, instead of three, life sentences and was therein contemplating the death of the mother and her boyfriend. I am satisfied that the words are properly construed as the father stating that he loves the children too much to be able to kill them. That said, it was a deplorable message. Even when construed as beneficially for the father as possible, it conveys that the father so hates the mother that she deserves to suffer the grief of their three children being killed in recompense for what he perceives she has done to him or how she has made him feel.

13. I consider it most unlikely that any police officer would construe as benign an email which contained references to a father serving three life sentences for the murder of three children. I reject the father’s evidence to that effect.

14. The mother’s horror upon receiving the message was genuine and reasonable. Notwithstanding, I am satisfied that the father did not intend to convey a threat to kill the children and nor did he ever intend to do so. He acted despicably. What he said was abhorrent but, in my view, he wanted to wound the mother to the same extent that he felt she had wounded him. The lives of the children were not in danger from him.

15. On 7 February 2015, the father asked to see the children at McDonald’s in the company of his father Mr U Roskam, and his wife, Ms V, and the mother agreed. The mother evidence is that when she told the children about this, the boys did not want to go. She says she met with the paternal grandfather and Ms V in the car park whilst the father waited inside. Her evidence is that all three children were reluctant to get out of the car and although they managed to get the children to the door of the restaurant, the boys refused to go inside. She says the father then came outside and was “very agitated and manic”. She says E went with him but the boys were upset by his demeanour and refused to go inside. She says that C said “I’m not seeing him whilst he’s like that. He’s mental and I don’t want to see him again until he gets better.”

16. The father explained his version of events in cross-examination, he said:

    Well, if you want to hear my – if I can answer back with my response to that, it was at [Suburb AA] McDonald’s when – after a week, the intervention order got put on – I went up there with my dad.  It was [E’s] birthday.  The two boys went from blackmailing me to stay when they would see me to not getting out of the vehicle with [Ms Roskam].  Now, [E], at five years old, on her birthday, got between [Ms Roskam]’s legs and ran to me and jumped into my arms and said, Daddy, Daddy, Daddy, the boys don’t want to see you anymore because Mummy keeps telling everybody you’re mental.  Now that’s pretty tough.  It is right.  It’s 100 per cent right and I would never ever lie about my children.  That was what was said and done.  It was then 150 days till I seen them again.

17. The father says it was due to what E said that day that he has maintained that the mother told the children that he is “mental” and a “drug addict”. The mother denies ever telling the children that their father “is mental” and says she did say to C at McDonald’s that “Daddy just needs to calm down a bit probably” and did not say “Daddy is not mental” or words to that effect. She says she also told C that that was not a nice thing to say about somebody. When I asked the mother if she had allowed C to think that he’s right when he refers to his father that way, her answer was “not deliberately”.

18. The mother’s evidence was that because of the father’s “agitated, manic and erratic behaviour” she stopped all contact with him in February 2015. She did this on the advice of a relationship counsellor at DD Group, a liaison officer at Suburb K Magistrates’ Court, Victoria Police and a representative from BB Group. The mother’s evidence was that she did not make the decision lightly.

What has occurred since proceedings commenced in February 2015

1. There is far less dispute about what has occurred since the commencement of proceedings (on 20 February 2015). That is likely to be because of the mother’s decision not to engage with the father and the involvement of professionals and lawyers. Nonetheless there are aspects of almost every professional’s evidence which the father disputes.

2. The various orders of this Court are set out above. As I mentioned earlier, an interim intervention order protecting the mother against the father was made in February 2015 and a final order was made in October 2015. The father’s frequent correspondence to the mother continued after the interim intervention order was made against him and in breach of its terms. The father persistently contravened the intervention order between 31 January 2015 and 6 October 2015.  On 25 June 2015 the father was charged with six counts of persistent contravention of an intervention order and committing an indictable offence whilst on bail and two counts of using a carriage service to harass.  The latter two counts were withdrawn and the former six counts struck out.  The father was fined $1,000 with conviction. As I understand the evidence, the father then began sending correspondence to the mother’s solicitor. That correspondence was the subject of cross-examination and I refer to it later in that judgment.

3. Some of the Department of Health and Human Services file exhibited as C1 was redacted, but they show that apart from the first report in 29 January 2015, there were also three reports in February 2015 and one in April 2015. The first three reports related to concerns about the children being in the mother’s care, including concerns that the mother “hits and scratches” the children, and the mother “manipulating the children against the father”. All those reports were closed at intake phase. The next report related to concerns for the children because the father repeatedly breached the intervention order against him; but as I referred to above, that order only protected the mother, not the children. After intake, Child Protection referred the matter to SOCIT who advised that no further action would be taken.

4. The last report in April 2015 related to concerns about the mother not acting appropriately towards the children and having a history of “bullying and emotionally damaging behaviour towards the children”. That report was followed up with a phone call to the father who told the Child Protection order that he believed that “the mental health professionals and authorities have been ‘shadowing’ the father for some time, at least three months, and watching the father’s behaviour”; “that the mother has been poisoning the children’s minds against the father” and that he “has concerns for the mother’s mental health”. The file noted that Child Protection was concerned about the father’s mental health and his display of paranoia behaviours and advised the father of this. Their records noted that as the father was not having any unsupervised time with the children, his mental health condition was not impacting the children.

5. The father began spending supervised time with the children in July 2015. Supervision was provided by the EE Contact Service. As I mentioned earlier, three witnesses in this case are from that service; Mr R (supervisor), Ms S (CEO of EE Contact Service) and Ms Q (supervisor).  The affidavit of Ms Q sworn 14 June 2016 contains observations of the father’s time with the children from 2 July 2015 to 3 June 2016 as supervised by the EE Contact Service.  Over the course of supervision, the father saw the children on 23 occasions.

6. The supervisors, Mr R, Ms CC and Ms Q, all, overwhelmingly and in substantially similar detail, record positive observations between the father and the children. Most observations were undertaken at the father’s home, where he engaged appropriately with the children including feeding them and disciplining them as required. The mother accepts the evidence of all those witnesses.

7. Ms CC summarised the time as follows:-

   No issues were identified during the visit.  [The father] was very attentive, loving and focused towards the children exhibiting an ability to address their physical and emotional needs during the 2 hour period.

   All three children were observed to share a warm bond with their father. They remained settled and comfortable during the visit.

1. The father’s persisting attitudes and conduct constitutes a real risk to the psychological wellbeing of each of the children and to the mother who is their sole carer. However, in the short to medium term I am satisfied that the risk is ameliorated with supervision by an independent person. In saying that, I have had regard to the mother’s statement to the family consultant that she thought supervision was necessary until the children can self-protect as young adults. That is a reasonable and child focused judgment on her part. I am satisfied that the mother will make suitable alternative arrangements in the best interests of the children when it is appropriate to do so. It is unusual for me to make an order for ongoing supervision but, in this case, the benefit to the children of spending time with the father regularly, but not as frequently as previously ordered, is such that there must be provision for face to face time. If the father does not avail himself of the opportunity, so be it but the best interests of the children require that there be a safe structure in place. The Order I make permits the children and the father to maintain a meaningful relationship.

Conclusion

1. I am satisfied that the proposal honed by the mother and the ICL is consistent with the best interests of the children and will order accordingly.

2. My determination that the mother have sole parental responsibility relieves me from the obligation to consider whether shared care or substantial and significant time would be appropriate. However, even if I had not determined that the mother should have sole parental responsibility, for the above reasons, I would have concluded that shared care or substantial and significant time is not consistent with the children’s best interests.

3. For the reasons set out above, I make the Order set out at the commencement of these reasons.

I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 March 2018.

Associate: 

Date:  21 March 2018