Rowe and Nishimura
[2015] FCCA 208
•3 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROWE & NISHIMURA | [2015] FCCA 208 |
| Catchwords: FAMILY LAW – Parenting – father having extensive psychiatric and police history – family violence – whether long term supervision in best interests of child. |
| Legislation: Hague Convention on the Civil Aspects of International Child Abduction opened for signature 25 October 1980 1343 UNTS 89 (entered into force by Japan on 1 April 2014). |
| Cases cited: O’Keefe & O’Keefe [2009] FamCA 382 |
| Applicant: | MR ROWE |
| Respondent: | MS NISHIMURA |
| File Number: | MLC 5048 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 5, 6, 7, 12 and 21 November 2014 |
| Date of last submission: | 21 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2015 |
REPRESENTATION
| Counsel for the applicant: | Ms Glaister until 12 November 2014 after which time the applicant appeared for himself |
| Solicitors for the applicant: | Macgregor Barristers and Solicitors until 12 November 2014 after which time the applicant was unrepresented |
| Counsel for the respondent: | Ms Buchanan |
| Solicitors for the respondent: | Women’s Legal Service Victoria |
| Counsel for the independent children’s lawyer: | Ms Carter |
| Solicitors for the independent children’s lawyer: | Nicholes Family Lawyers |
ORDERS
The mother have sole parental responsibility for [X] born [in] 2008 (“[X]”).
[X] live with his mother.
[X] spend supervised time with his father up to once per calendar month at Berry Street Children’s Contact Service, Richmond, on dates and at times as nominated by that service, in as many calendar months each year as Berry Street Children’s Contact Service can accommodate.
In addition, in the event the father meets the costs, [X] spend up to four hours with his father on a Saturday supervised by a professional supervisor up to once per calendar month, in calendar months other than those during which [X] spends time with his father at Berry Street Children’s Contact Service.
Each parent be restrained from denigrating the other in the presence or hearing of [X].
The father be restrained from being less than 200 metres from [X]’s home or school.
The father provide a copy of these orders and reasons for judgment to his treating psychiatrist, Dr C, and draw to Dr C’s attention the opinion of Dr D that the father should not be prescribed dextroamphetamine because of his history of psychosis.
The father provide a copy of Dr P’s report to Dr C.
The father continue to attend Dr C for psychiatric treatment and comply with all reasonable directions of Dr C.
The father attend an anger management course and provide a certificate of completion to the mother.
The father attend a men’s behaviour change program and provide a certificate of completion to the mother.
The father attend a post separation parenting program and provide a certificate of completion to the mother.
The father attend a parenting course addressing the normal development and care of primary school aged children and provide a certificate of completion to the mother.
The father be at liberty to provide a copy of these orders and reasons for judgment to a family consultant for the purposes of the father obtaining guidance on his interaction with [X].
The independent children’s lawyer assist the father to identify appropriate courses and programs for him to attend and an appropriate family consultant for him to consult.
The independent children’s lawyer be discharged in 90 days.
The father, Mr Rowe, and his servants and agents be restrained until 3 February 2020 from removing [X] from the Commonwealth of Australia.
The mother, Ms Nishimura, and her servants and agents be restrained until 3 February 2020 from removing [X] from the Commonwealth of Australia.
[X] be restrained from leaving the Commonwealth of Australia until 3 February 2020.
The Registrar of the Federal Circuit Court of Australia retain [X]’s passport until further order.
The mother authorise the father to receive copies of any future school photographs of [X] and his future school reports at the father’s expense.
REQUEST
The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain [X]’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [X]’s name on the airport watch list until 3 February 2020 or further order of the court.
NOTATION
If either parent seeks that [X]’s name remains on the airport watch list after 3 February 2020, then, before that date, that parent should file a further application to that effect supported by affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Rowe & Nishimura is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5048 of 2012
| MR ROWE |
Applicant
And
| MS NISHIMURA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] born [omitted] 2008 (“[X]”). [X] is half Japanese, on his mother’s side, and half Australian, on his father’s side. [X] speaks both Japanese and English. A brief outline of the matter is as follows.
[X]’s mother came to Australia from Japan in June 2006. She commenced cohabitation with [X]’s father in October 2006 in Cairns. The parents were married on [omitted] 2007. On 17 August 2008, the father had a psychotic episode during which he was shot by the police. He was remanded in custody for six months and then released on bail. On 17 May 2010, the District Court of Queensland sentenced the father to 18 months imprisonment, wholly suspended.
The parents lived separately between [X]’s birth, on [omitted] 2008, and July 2010 when they reconciled. At that time, [X] was about 23 months old. The mother, father and [X] then lived together as a family in [P], Victoria, with the paternal grandmother. On 16 June 2011, the parents separated on a final basis. At that time, [X] was about two years and 10 months old.
The Department of Human Services (“DHS”) became involved with the family on 16 June 2011. [X] was placed in his mother’s care under a supervision order. [X] then spent four hours per fortnight with his father under DHS supervision until November 2012.
On 6 June 2012, the father commenced the current proceedings, seeking an airport watch list order. An interim airport watch list order was granted on 12 July 2012 by Judge Hughes.
Unbeknownst to the mother, DHS and the court, the father was hospitalised between 8 and 15 October 2012 as an involuntary psychiatric patient.
In November 2012, [X] started to spend unsupervised time with his father, pursuant to recommendations of DHS.
On 17 June 2013, Judge Hughes made orders by consent for [X] to have unsupervised time with his father:
a)
from 10am until 4pm each alternate Sunday, commencing
30 June 2013;
b)from 10am until 4pm each alternate Saturday and Sunday, commencing 26 October 2013; and
c)from 3pm each alternate Saturday until 12 midday on the immediately following Sunday commencing 4 January 2014.
Orders were also made by consent on 17 June 2013 for changeover to occur at Berry Street Children’s Contact Service (“Berry Street”) in Richmond and for the father to have a psychiatric assessment prior to overnight time commencing.
On 8 July 2013, the Children’s Court supervision order expired.
On 24 August 2013, also unbeknownst to the mother and the independent children’s lawyer, the father was taken by the police to [F] Hospital after he was found in a stranger’s house naked except for a pair of fishnet stockings. The father was discharged the following day.
On 13 March 2014, the mother’s solicitor examined some subpoenaed material and discovered the father’s involuntary psychiatric hospital admission in October 2012. At that point, the mother, with the approval of the independent children’s lawyer, stopped making [X] available to spend time with his father. In June 2014, [X] recommenced spending supervised time with his father on a fortnightly basis at Berry Street.
It needs to be stated at the outset that the mother and the independent children’s lawyer acknowledged that [X] loves his father and the father loves [X]. Much of the time that [X] and his father have spent together has been supervised. Reports of the supervision were examined by the independent children’s lawyer and some reports were made available to the court. On many occasions, [X] and his father enjoyed their time together without incident and had very positive interactions. However, on a couple of occasions, there were some untoward events which are discussed in detail below.
The father has an extensive police and psychiatric history. Although it is no doubt uncomfortable for the father to be reminded of it, for [X]’s benefit, it is necessary for the court to recount the father’s history in some detail. As will be seen, there will be an order for the father to provide a copy of these orders and reasons for judgment to his current treating psychiatrist. The provision of the reasons will assist with the psychiatrist’s treatment of the father, and that will ultimately assist [X] to have a long-term and meaningful relationship with his father.
It should also be said at the outset that neither DHS nor the independent children’s lawyer has any concerns about the mother’s care of [X].
Proposals
The father’s primary proposal was that [X] spend alternate weekends and half school holidays with his father and have Skype communication with his father three times per week.
The father’s secondary proposal, if the court considered that [X]’s time with his father needed to be supervised, was that the supervisor be the paternal grandmother.
The father’s tertiary proposal, if the court considered that [X]’s time with his father needed to be supervised and if the court considered that the paternal grandmother was not a suitable supervisor, was that [X] spend as much time as possible with his father under the supervision of Berry Street and otherwise under the supervision of a private, professional supervisor.
The mother’s final proposal, with which the independent children’s lawyer agreed, was that:
a)the mother have sole parental responsibility for [X];
b)[X] live with his mother;
c)[X] spend time with his father under supervision at Berry Street the maximum number of times per year Berry Street could accommodate, which is understood to be three or four times per year;
d)if the father met the costs of a private, professional supervisor, [X] spend time with his father up to once per month for up to four hours in months other than those during which [X] spent time with his father at Berry Street;
e)[X]’s name be removed from the airport watch list;
f)[X]’s passport held by the registry be returned to the mother;
g)the mother be at liberty to renew [X]’s passport every five years without the consent of the father;
h)[X] be permitted to travel with his mother outside Australia during school holidays or in the event of a family emergency in Japan; and
i)the father be restrained from being within 500 metres of [X]’s home or school.
The mother and the independent children’s lawyer were opposed to [X] having contact with his father via Skype except under professional supervision.
Background
Victoria Police records (exhibit 15) show that on 30 May 1996 the paternal grandmother telephoned the police in relation to the father. The note states:
Mr Rowe suffers from personality disorder. On 30.5.96 Mr Rowe became upset & started to verbally abuse his mother Ms R. Mr Rowe became more unstable & threatened suicide. He later threw all his belongings on ground & smashed stereo door. Police attended with PWN psychiatric services, Mr Rowe calmed down & [assessed]. Nil further action desired by either party at this stage.
The father did not dispute these events. I accept that they occurred as described. The father told the court that he had been upset because he was unable to form a relationship with his father from whom he had been estranged throughout his life. I accept that explanation. I also note that there is no mention of the father having a personality disorder in any of the other material before the court.
A Victoria Police record (exhibit 15) indicates that on 1 October 1997 the police were again called in relation to the father. The police note states:
Dispute b/t Ms R, her de facto Mr J and Rowe’s son Mr Rowe over [Rowe’s] unemployment, [frustration] and abusive behaviour. Rowe advised to seek counselling.
The father did not dispute the events described in this note and I accept that they occurred. The father and the paternal grandmother (who is known as both Ms R and Ms R) both gave evidence that the father has consistently been employed and a hard worker since 1997. I accept that evidence. The father now works as a [omitted].
A further Victoria Police record (exhibit 15) indicates that on 10 November 1998, the paternal grandmother again called the police. The record states:
… Ms R contacted police after her son, Mr Rowe became frustrated with his personal life and threw an anger tantrum. He damaged his own personal property and became verbally abusive to his mother. During heated argument he stated to his mother to call the cops. He said he wanted police to shoot him and his dog. Mr Rowe had left scene prior to police attending. Police did not pursue Mr Rowe for fear of escalating incident. No order required …
The father did not dispute that account. I accept that events happened as described in the note.
A further Victoria Police record indicates that on 14 January 1999 (exhibit 15) the paternal grandmother again called the police. The note states:
Son returned to [mother’s] address from Melbourne after being rejected in job interview. No dispute or argument but son has “snapped” and smashed drinking glass and knocked [a] hole in plaster wall. Nil violence to persons. Son decamped prior to police attendance. Prior psych history.
The father did not dispute that account. I accept that events happened as described in the note.
Records of the Queensland police (exhibit 3) show that in August 2004, an unidentified woman (not the mother) complained to the police on the Sunshine Coast about numerous episodes of domestic violence perpetrated by the father. The woman showed the police bruises on her arms and chest. The father telephoned the woman while she was with the police and the reporting officer heard the father use abusive language towards the woman. The father in cross-examination denied any recollection of this event. However, he was identified in the police records by his first name, middle name and family name and also by his address in [P], Victoria. I consider that the events described in the police records of August 2004 did occur. There seems to be no reason to doubt the accuracy of the police record. The woman’s complaints were to some extent corroborated by the bruises which she showed to the police.
The records of the Queensland police (exhibit 4) indicate that a domestic violence order was made against the father on
23 August 2004 until 22 August 2006 requiring the father not to commit domestic violence towards the aggrieved person and not to go within 100 metres of premises where the aggrieved person was living, staying or working. The aggrieved person’s name has been redacted. The same records show that from 27 September 2004 until
22 August 2006, the father was ordered not to commit domestic violence against the aggrieved person. It appears from these records that the first order was modified by the second order to permit the father and the aggrieved person to be together. The father did not dispute these records and I accept that they are accurate.
On 13 July 2005, at Southport Magistrates’ Court in Queensland, the father was convicted and fined in relation to possessing dangerous drugs, publishing or possessing instructions for producing dangerous drugs and possessing on 29 May 2005 a thing for use in the commission a crime (exhibit 2). The father in cross-examination said that he recalled that conviction. He said that he had taken some information from the internet because he was interested in the chemistry of any substance that he took. He said that the substance could have been marijuana, speed, amphetamines, ecstasy, LSD or “anything”. He said that those were the drugs that he had come across in his life. The father did not dispute the circumstances underlying those convictions and I accept that the father was properly convicted on 13 July 2005.
A police record (exhibit 5) states that:
a)on 20 October 2007, the police were called in relation to an incident at the home of the mother and father in Cairns;
b)the father told the police that:
i)he had had a verbal argument with the mother;
ii)he had thrown a TV remote control which had hit the mother;
c)the mother was observed to be visibly upset and crying;
d)she was observed to have two separate red/blue swollen bruises on her left knee;
e)she told the police that:
i)the father had thrown a box of paper which had hit her in the left knee;
ii)he had later thrown the TV remote which had also hit her in the left knee;
iii)he had threatened to hit her by holding one of his fists in the air; and
iv)she had then gone to a friend’s place; and
f)the police interviews occurred at the friend’s place.
A summary of domestic violence orders against the father indicates that a domestic violence order was made against him on 20 October 2007 in relation to the mother (exhibit 4).
The father told the court that he did not intend to hit the mother with the TV remote. He said that he had thrown it on the bed and it had bounced. He did not say anything about the box of paper or how the mother received two separate bruises on her left knee.
I do not accept the father’s claims about this matter. His contemporaneous statement to the police included an admission that he had thrown the remote control. It is difficult to believe that a remote control bouncing off a bed could cause a bruise, unless it was thrown extraordinarily hard. I accept that the events of 20 October 2007 occurred as described by the mother and in the police record.
On 6 November 2007, at the Cairns Magistrates’ Court, the father was convicted and fined $250 for possessing restricted items (exhibit 2). The father said that the restricted item was an extendable baton that he had bought at an army disposal shop. He suggested that the fault lay with the shop that had sold the weapon to him. When asked how the police had found that he had the weapon, the father said that he had been in a fight with a friend who had a baseball bat. The father said that he carried the extendable baton in his car for protection in the event of road rage or suchlike. He said that he had not known that the extendable baton was illegal.
The mother said in her affidavit affirmed on 27 August 2012 that:
a)in 2007, the father had regularly hurt her, thrown things at her and pushed her over;
b)on a particular occasion in 2007, she fled to the home of a friend of the father;
c)the father followed her, carrying a baton which he used to force his way into the friend’s house;
d)there was a fight between the father and his friend and the police attended; and
e)the police saw that the mother was injured and obtained an intervention order on her behalf for a period of two years.
The father did not challenge the mother about these matters and I accept that they occurred as she described them. Police records verify that a domestic violence order was made against the father for the protection of the mother on 25 October 2007 effective until 24 October 2009 (exhibit 4). The order restrained the father from committing domestic violence against the mother. It did not restrain the father from being in the vicinity of the mother.
The mother said that she did not understand what an intervention order was. She said the husband assured her that it was all right for them to continue to live together so she returned to him. The mother said that the father’s violence and abusive behaviour escalated. She said that the father was using cannabis, ecstasy and drinking a lot of alcohol at that time. The father did not challenge this evidence and I accept it.
On 24 April 2008, at the Cairns Magistrates’ Court, the father was not convicted but was fined for unlawful possession of suspected stolen property, assaulting a police officer on 14 February 2008, committing a public nuisance and obstructing police (exhibit 2). The father said that the assault charge arose from the police officer scratching herself as she put handcuffs on the father. When asked why he was being handcuffed, the father said that he was intoxicated in a public place. The father initially denied all knowledge of ever having been charged with a stolen property offence. However, he then recalled that he had once been charged with stealing a telephone which he had actually borrowed. He said the telephone he borrowed was identical to his own. I find the father’s explanations of these matters to be implausible. In all the circumstances, I accept that the incidents on 14 February 2008 underlying the fines imposed on 24 April 2008 actually occurred.
On 17 May 2010, the father was convicted by the Cairns District Court for a number of offences that occurred on [date omitted] 2008 (exhibit 2). The offences were:
a)deprivation of liberty, unlawfully detain/confine;
b)assault occasioning bodily harm;
c)assault/resist/obstruct police officer/person acting in aid of police officer (three charges);
d)trespass;
e)breach of an intervention order; and
f)possessing a knife in a public place.
These are the offences for which the father was remanded in custody for six months. The father was eventually sentenced to 18 months imprisonment wholly suspended for 18 months. The offences occurred two days before [X] was born and resulted in the parents’ first separation.
The mother described the events in her affidavits affirmed on
27 August 2012. She said that:
a)on [date omitted] 2008, the father’s behaviour had become particularly crazy and frightening;
b)he was very angry and called the police;
c)when they arrived, he refused them entry;
d)he barricaded the mother in a bedroom, holding her with one hand and holding a hunting knife in the other;
e)the police were able to see the mother and father through the window of the house;
f)the police talked the father into letting the mother go;
g)the father released the mother and he fled from the house [while still holding the hunting knife];
h)he was chased and eventually shot by the police;
i)the mother was traumatised and obviously very pregnant;
j)she was immediately taken to hospital;
k)the husband was taken to the same hospital with gunshot wounds; and
l)[X] was born two days later.
The father did not dispute the mother’s account. He added that;
a)he had taken an ecstasy tablet to celebrate the impending birth of his son;
b)he believed that there were intruders trying to get into his house;
c)he was trying to protect the mother from the intruders;
d)he did not believe that the people who knocked at the door and said they were the police were in fact the police because they did not properly identify themselves;
e)he ran to his next-door neighbour’s house and went inside;
f)he called the police again;
g)he then formed the view that his next-door neighbour was threatening him;
h)he ran down the street to escape the next-door neighbour and the police;
i)the police shot him four times; and
j)he believes that he had a psychotic episode brought on by the ecstasy tablet.
The police reports of the matter (exhibits 6 and 7) add that during this incident:
a)the father held the mother roughly;
b)he waved the knife around erratically;
c)he caused an injury to the mother’s lip;
d)he caused the mother to be anxious about the wellbeing of her unborn baby;
e)the next-door neighbour was woken by the father yelling;
f)the next-door neighbour woke to find the father one metre inside the next-door neighbour’s house;
g)the father was holding an object, which the father told the court was a baseball bat, and then produced a knife; and
h)after a verbal exchange, the father ran off.
I accept both of the parents’ accounts of the events of [date omitted] 2008 and the police accounts. In particular, I accept that the father, although deluded, was attempting to protect the mother from an imagined threat. I also accept that the mother was traumatised by the father’s conduct at a time when she was nine months pregnant.
The mother said that:
a)while the father was remanded in custody, he wrote to the mother about 10 times apologising for his behaviour and asking to see [X];
b)the mother took [X] to see his father on two occasions while he was in custody;
c)when the father was released from remand in February 2009, the police told the mother that it was a condition of the father’s bail that he not contact her or [X] and that he was required to live with his mother in [P] in Victoria; and
d)while the father was on bail, he sent [X] birthday and Christmas cards and presents via his solicitor.
The father did not challenge any of this evidence and I accept it.
On 24 May 2010, the father was convicted in the Cairns Supreme Court of producing a Schedule 2 drug, possessing dangerous drugs, possessing anything used in the commission of a crime and possessing property suspected of having been used in connection with the commission of a drug offence. The father was sentenced to 18 months imprisonment wholly suspended for a period of 18 months.
The father said that these convictions related to the 17 August 2008 incident. He said he was growing marijuana in the cupboard because when he had tried to buy marijuana in Cairns the sellers would take his money and run away with it. He said that he no longer smoked marijuana because he had been shot by the police.
I accept, based on the father’s admissions, that the events leading to these convictions occurred. The father has not been asked to and has not produced any drug screens during the course of these proceedings. However, Dr D said that his recollection was that the notes of the father’s admission to [W] Hospital on 5 October 2012, which is discussed in detail below, stated the father had used cannabis in the days leading to his admission.[1] In the absence of any evidence to the contrary, I accept that the father has not used marijuana since at least October 2012.
[1] Transcript page 291 lines 27 to 28
In July 2010, [X]’s mother and father reconciled. The mother went to live with the father at the paternal grandmother’s home in [P] Victoria. In September 2010, the mother, father and [X] moved to their own house in [P].
In December 2010, the husband had surgery on his leg in the [P] District Hospital. A hospital note of 13 December 2010, says in large letters, “patient aggressive and abusive”. The father agreed that he could have been aggressive and abusive to nursing staff. He said that he had just come out of surgery and morphine did not agree with him. Initially, he said that he might have threatened to head butt a physiotherapist as a joke. However, when reminded that the physiotherapist had noted that he had touched the father in the gluteal region to prevent him toppling over, the father said that the physiotherapist had touched his genitals. The father then agreed that he had told the physiotherapist that if he did it again, the father would head butt him. The hospital notes go on to say that the paternal grandmother apologised to the physiotherapist saying that the medication was affecting the father. When it was put to the father that there were other entries in the hospital notes saying that the patient was verbally abusive to nursing staff and aggressive, the father said that he can come across as abusive or irritable when he is under stress. He said that he did not consider that the stress of caring for a child would have the same effect on him. The hospital notes also recorded that, after the father was discharged and needed home visits, there was a requirement for two nurses to visit and there were to be no after dark visits. The father accepted that he can come across as very aggressive, very intimidating and frightening. I accept that the notes of the [P] District Hospital accurately state the relevant events.
The mother said in her affidavit affirmed on 27 August 2012 that:
a)after the reconciliation, the father continued to be very short tempered and would quickly become angry and physically and verbally violent towards her;
b)on one occasion, in February or March 2011, the father threw a statue at the mother which smashed on the floor in front of her and [X];
c)[X] was frightened and crying;
d)on 16 June 2011, the father grabbed the mother by the throat and pushed and kicked her;
e)when the mother attempted to run away, the father kicked her and pushed her into a tree;
f)the mother ran to the police station;
g)[X] remained in the house;
h)the police obtained an intervention order and notified Child Protection;
i)Child Protection returned [X] to his mother’s care the following day;
j)DHS has been involved with the family since 16 June 2011; and
k)DHS has supervised access visits between [X] and his father for two hours once a fortnight.
The Victoria Police report of the incident (exhibit 9) adds that:
a)the mother had gone shopping at 2.30pm without her mobile telephone;
b)the father was angry when she returned at 4pm, because she had been gone too long and had not taken her mobile;
c)the father held the mother by the throat, pushed her around the flat, kicked her in the shin and threatened to cut her if she called the police;
d)the father tried to lock the mother in [X]’s room;
e)the mother tried to call for help but the father put his hand over her mouth;
f)[X] was in the flat and the violence occurred in his presence;
g)the father did not make any threat towards [X]; and
h)the mother was placed in a women’s refuge.
The father did not dispute this evidence and I accept it. [X]’s parents have been separated since 16 June 2011.
On 5 October 2011, records of the [omitted] Medical Centre state that the father:
presents with [paternal grandmother] after punching himself several times on the face at home. Looked at himself in the mirror, didn’t like what he saw and felt guilty and low self-esteem, and then self harmed.
On 3 November 2011, the Warrnambool Children’s Court made a supervision order in respect of [X]. It provided that, until 2 May 2012:
a)[X] was to live with his mother;
b)[X] was to have contact with his father only under the supervision of DHS;
c)the father was not to threaten or assault DHS staff;
d)the father was to continue to attend appointments with Dr O on a regular basis for assessment and treatment with a focus on anger management and was required to allow reports to be given to DHS;
e)the father was to attend a GP for a referral to a neurologist to assess his brain functioning and allow the report to be provided to DHS;
f)the father was not to discuss issues relating to the case in [X]’s presence or hearing; and
g)the father was not to denigrate the mother in the presence of [X].
The supervision order was extended on 6 June 2012. Also on
6 June 2012, the father instituted the present proceedings which initially were confined to an application for an airport watch list order. That order was made on 12 July 2012 by Judge Hughes.
On 11 September 2012, the parents were seen at the Children’s Court Clinic for the purposes of a court report.
On 8 October 2012, the father had an episode of paranoia. He hid under a table and was very anxious that the police were going to kill him because he was a cross dresser. The father was admitted to [W] Hospital. He was taken to the hospital via ambulance with a police escort. He was handcuffed and restrained because he was hostile and threatening. It seems that he was frightened of a needle that they were trying to give him. On 15 October 2012, the father was discharged from hospital on a community treatment order.[2] The father did not dispute any of the preceding matters and I accept that they occurred.
[2] Transcript pages 90 to 93
On 24 August 2013, the police were called to attend the father at a house in [S], Victoria. The record describes the police involvement as “mental disorder transfer” (exhibit 1) and says:
M found inside residence of people unknown to him. In high state of paranoia, not aware of surroundings. Barricaded himself in [child’s] room. Started putting on female clothing. Dressed in fishnet stockings. On police arrival armed himself with a wooden stick. OC foam deployed with effect. M transported by MAS to SFK hospital. Possibly affected by ICE.
A further police record about the same incident states that (exhibit 8):
[Mr Rowe] highly paranoid. … [Mr Rowe] armed with wooden pole;
…
[Mr Rowe] in [psychotic] state, drug [affected] by amphetamines - unaware of surroundings and highly paranoid. Arrested re section 10 … was sedated ….
The police hand written notes state that (exhibit 8):
S/T Ms T … stated Mr Rowe took ICE at the party.
The father explained this incident as follows:
a)he had been trying to move on with his life and met a woman in a bar, namely, Ms T;
b)he went with her to the home of another couple for the purposes of group sex;
c)he believed they were excluding him and spiked his drink;
d)he became scared and run away;
e)he was naked at the time except perhaps for some fishnet stockings which the other people might have put on him;
f)he ran for a long time and eventually broke into a house where he was found by the police; and
g)the incident was caused by the people putting something in his drink, but the father had exercised poor judgment by going with the woman in the bar.
The father was released from hospital the following day. The father did not dispute the events described above and I accept that they occurred as described.
The mother’s solicitor and the independent children’s lawyer had a good deal of difficulty locating the hospital records relating to this incident. It seems that the father’s surname was recorded by the hospital as ‘[N] rather than ‘Rowe’ and the father’s birth date as
‘[omitted]1970’ rather than ‘[omitted] 1977’. This made it difficult for the hospital to locate the relevant records.
The father said that ‘[N] is his father’s family name and he often used it as his own name. The father said that he had no explanation for his birth date being wrong. The mother’s solicitor and the independent children’s lawyer were concerned that the father might have had other police or hospital records that had not been discovered. However, the father denied that. There is no proper basis on which to conclude that the father has undiscovered police or hospital records, although there are clearly grounds for suspicion. Nor is there any proper basis on which to conclude that the father deliberately gave a false surname and a false birth date to the hospital. It seems more likely that he was in no fit state to give the correct details.
DHS ceased its involvement with [X] on 8 July 2013.
[X] has spent time with his father at Berry Street in Richmond on the following dates:
a)15 June 2014;
b)29 June 2014;
c)13 July 2014;
d)27 July 2014; and
e)10 August 2014.
The workers at Berry Street made contemporaneous file notes about the visits, which are exhibited to the affidavit of Ms K and discussed in detail below.
The father told court that he had begun to see a psychiatrist by the name of Dr C in about September 2014 and he had had two sessions with him. The father said that he had not told Dr C about his psychiatric history. The father said that he had told Dr C about being shot in 2008 but was not sure that he had mentioned the hospital admission in October 2012. The father did not think that he had told
Dr C about the August 2013 incident. The father said that he did not tell Dr C that he had punched himself in the head in 2011 after a psychiatrist had told him to walk away from [X] and hope that he would come to the father when he was 16. The father said that Dr C had prescribed dextroamphetamine for him for attention deficit disorder. The father said he took 10 to 15 mg per day and had regularly taken that dose since September 2014 except for occasions when he forgot. I accept that evidence.
DHS involvement
a. the conversation on 14 March 2012
The father firmly agreed in cross-examination that on 14 March 2012 he had said to a DHS worker that:
a)DHS workers have written untrue court reports;
b)DHS takes children away from happy families;
c)the father is sure that DHS has smacked [X] in the face and given him a black eye; and
d)DHS is appalling.
The father said in oral evidence that he is not now entirely sure that DHS hit [X] but he felt that it could have happened. This is one of many examples that arose during the father’s evidence of him misinterpreting events, and regarding a theoretical possibility as a reality. It would be very helpful for [X], and his relationship with his father, if the father could receive psychological or psychiatric assistance to help him distinguish remote possibilities from likelihoods.
The father said in oral evidence that he felt that DHS treated him like a textbook domestic violence case when he is an individual. The reality is that the father has perpetrated serious domestic violence against the mother and has done so, on at least one occasion, in [X]’s presence. It would be very helpful for [X], and for his relationship with his father, if the father could acknowledge, at least to himself, what he has done. If the father could do that, it may enable him to obtain the appropriate assistance to enable him to have a closer relationship with [X] in the future.
The father agreed in oral evidence that he had told DHS that previous workers had written a false report. This is one of many statements by the father indicating a deep distrust of people in authority. Some of that is understandable, given that the father was shot by the police. However, in many respects, it is an unhelpful attitude as far as [X]’s relationship with his father is concerned. It has meant that the father has developed a conflictual relationship with DHS and others who have tried to help [X] and his father spend time together. Obviously, it would be in the best interests of [X] and his father if the father could at all times treat DHS and other service providers with courtesy and appreciate that they are actually trying to help him and [X].
The father agreed in oral evidence that he told DHS that it was appalling that [X] does not see his paternal grandmother and the father said that he still thinks that. It is, indeed, very unfortunate that [X] does not see his paternal grandmother. However, the father and the paternal grandmother need to understand that the paternal grandmother’s behaviour during supervised visits led to that result. Both the father and the paternal grandmother appear to have difficulty regulating their emotions and appear to have difficulty being courteous when they are experiencing stress.
The father agreed in oral evidence that he told DHS and it is true that no one was teaching his son anything. This statement reflected the father’s concern that [X] had not been taught to swim and had not been taught other things that the father may have been able to teach him. When the family were together, the father had taken [X] to swimming lessons, among other things. Nevertheless, the father’s statement that no one was teaching his son anything completely disregards all that the mother was doing with [X] every day and no doubt teaching him. The father would do well to acknowledge the huge effort the mother has devoted to caring for [X]. She has been a single mother for almost all of [X]’s life and by all accounts has done a very good job.
The father agreed in oral evidence that he told DHS and it is true that [X] should be enrolled in karate because people in Melbourne run around with knives and [X] needs to be able to defend himself. Obviously, the vast majority of people in Melbourne do not run around with knives. It would be extraordinarily bad luck if [X] ever came across a person who was wielding a knife. Having said that, it appears that [X] is enrolled in karate and is learning how to defend himself.
b. the case note of 16 March 2012
The DHS case note of the supervised visit on 16 March 2012 (exhibit 11) includes the following:
On arrival at the [DHS] office … Mr Rowe called out to [X] to come and see him. Writer could feel [[X]’s] grip tighten as he held [writer’s] hand and he stayed by [writer’s] side. This appeared to infuriate Mr Rowe when [X] refused to approach him and he again yelled out to [X] [to] “come here son”. [X] let go of [writer’s] hand and gingerly took a few steps forward, but then stopped. Writer could see [X] looking up at his [father], whilst his [father] called [to] him.
All at once, Mr Rowe appeared to become enraged and he yelled out to writer, “Excuse me [lady], did you just hear what my son said [to] me”. Writer replied No, writer had not heard [X] utter a word. Mr Rowe became very angry saying that [X] had just said to him “You hit my Mummy”. Mr Rowe then turned to other workers (reception staff) and asked them if they had heard what [X] had said. The other staff told Mr Rowe that they had not heard [X] say anything. This appeared to make both Mr Rowe and Ms R angry and they began accusing staff of “all sticking together” and that you “[DHS] staff are all the same”. Mr Rowe began demanding that [the] writer bring [X] around [to] the reception area. By this time both the security guards had been summoned and were standing behind Mr Rowe and Ms R. Writer asked Mr Rowe to [calm] down or else access would not be going ahead. Mr Rowe immediately ceased yelling and he appeared to calm down. Writer and [X] were then [shown] to the access room accompanied by 2 staff members as well.
When [Mr Rowe] saw [X] come through the door, he called to him and [X] immediately ran over [to] him and let Mr Rowe scoop him up into his arms and give him a hug and kiss. Mr Rowe then asked writer why “his son was sweating” and that “he did not look well”. Writer replied that he may be sweating due to the heat and Mr Rowe began to insist “that he knows his son and he is not well”. Grandma then began to lament also that [X] did not look well and that he had dark circles under his eyes. Writer would like to comment that writer did not observe there to be dark circles under his eyes and that he did not appear [to] be unwell. Writer did tell Mr Rowe and Ms R that [X] had complained of a sore stomach earlier but once he had gone to the toilet he was fine and had not since complained. Mr Rowe and Ms R appeared to accept this and they both turned their attention [to] [X]. Both [Mr Rowe] and Ms R fussing over [X] but they continued to ask him if he was well and did he feel alright. Writer asked Mr Rowe and Ms R if they wanted to go into the room that was booked for the visit. Dad insisted that he was allowed to go [to] the park and that he should not have to sit in a room with his son. Writer told Mr Rowe that if he had concerns about the venue for access then he would need [to] speak to his worker. Mr Rowe began to protest that “he had so many workers that he could not remember who was who and that no one ever gets back [to] him anyway”.
Mr Rowe appeared to accept albeit reluctantly that access was to occur in the room and began to interact with [X] in a positive and appropriate manner. Mr Rowe and Ms R had bought new boxes of Lego for [X] as well as a Batman toy. Mr Rowe and [X] sat together opening the box of Lego. [Mr Rowe’s] verbal interaction with [X] was mostly appropriate but at times he could be heard mumbling under his breath, [derogatory] remarks about [[X]’s] mum ie accusing her of not looking after [X] and [that’s] why he was sick. [X] appeared [oblivious] to his [Dad’s] comments and appeared happy and relaxed as he lay with his father on the carpet helping his Dad assemble the Lego blocks. Mr Rowe asked [the] writer why access had [to] be in the room and not in the park as he used [to] have it in the park. Writer reinforced to Mr Rowe that he would need to talk to his P/w if he wanted access to occur elsewhere. Mr Rowe said it was unfair for [X] to have [to] stay in the room and that he would be speaking to the [ombudsman] about it. [He] went on [to] say that [X] should never have been removed from him and that it was [[X]’s] mother that had “drilled” it into [X] to say bad things about his Dad.
Writer asked Mr Rowe to stop making these comments and Mr Rowe said well [it’s] true, you heard it, you heard him say it and I want you to write it down. Writer told Mr Rowe that writer had not heard [X] say those comments. Ms R then joined in the conversation insisting to writer that she had also heard [X] say those things about his Dad hitting his Mum. Writer suggested to both Ms R and Mr Rowe that they speak to their worker with their concerns and both replied in unison that “they will be”. Ms R said that she will do better than that, that she would go public about the way that [DHS] have treated her and her family and how they snatched her grandchild from her family. Writer suggested to both Ms R and Mr Rowe that they speak to their worker but for now just [to] enjoy their time with [X]. Mr Rowe mumbled something under his breath that was inaudible but he did continue to play and interact with [X] encouraging and assisting him to help him build a firetruck with the Legos.
Mr Rowe and Ms R had brought sandwiches and drinks for [X] as well as a treat of a small box of smarties. [X] [was] not interested in eating the sandwiches, so Ms R offered [X] food out of the [lunchbox] that his Mum had packed. [X] appeared not interested in eating it as he refused food from his [lunchbox] as well. Ms R made a negative comment about Ms Nishimura putting omelette into [[X]’s] [lunchbox], saying that she should not put [omelette] into a bag in the heat but it should be in [an] insulated bag. Writer brought it [to] [Ms R’s] attention that the bag was an insulated cooler bag. Ms R made no comment. Mr Rowe and Ms R were able to tend to [[X]’s] immediate needs being seen and heard to offer food/drinks as well as to ask [X] if he needed to go [to] the toilet. There were hugs and kisses offered frequently from Mr Rowe and Ms R toward [X] and [X] [was] observed to reciprocate in a positive manner.
At one [point] during [the visit] Ms R appeared fixated on [[X]’s] fingers commenting that they appeared crooked and that he was not using them properly. Ms R commented that this was because his Mum hits him across his fingers and that it looked [like] his fingers had been broken. Ms R insisted that writer tell [[X]’s] mum to take [X] to the doctors and that she would like documentation of his visit to the doctor as proof that he [had] been taken there. Writer did not observe [[X]’s] fingers to be crooked and that [[X]’s] fine motor skills appeared to be being used in the age appropriate manner for a 3 and a half year old child. Writer would like [to] comment that writer had to reinforce numerous times to both Mr Rowe and Ms R that if they had any issues/complaints in regards to [X]/ or access etc etc that they talk to their worker.
At one stage during access [X] began to become restless and [fidgety] and tried to leave the room numerous times but Mr Rowe managed to persuade him to continue to help him finish the fire truck. [X] appeared comfortable and relaxed when interacting with his Dad and Grandma and did not appear hesitant nor apprehensive about approaching or being approached by his Dad or Ms R. Mr Rowe was heard to praise [X] with his efforts at building with the blocks.
At one stage during access a young child who was walking past the room with his Mum, saw [X] and tried to join in with him and his Dad. [X] became upset telling the child to go away. Mr Rowe became very angry with [X] telling him that he should not talk to other children like that and that his manners were not like that when he was in his care. Mr Rowe then said to writer, see [that’s] his [Mum’s] fault, my [son’s] manners were never like that until “you people” took him off of me. Writer asked Mr Rowe to refrain from making negative comments about [[X]’s] Mum. Ms R also told Mr Rowe to stop making negative comments because “she (referring [to] writer) will write down everything you say”. Mr Rowe replied good I hope she writes down what my son said to me when he saw me. [It’s] wrong that he said that, a 3yr old child does not say things like that unless he has been told [to] say it.
Ms R then began to complain about the phone [contact] that they had had [at] Xmas time with [X]. She retorted Huh! we [couldn’t] even understand what he was saying half the time, he speaks Japanese then English etc,etc. Ms R also said that the Mum would be teaching [X] Japanese intentionally just to upset me and his father. Writer suggested that it was a good thing for children [to] be able to speak more than one language but Ms R just rolled her eyes and said “Huh! Oh well, I guess [that’s] what he gets for marrying someone who just wanted to stay in the country.”. [Writer] decided to try and redirect Ms R toward a more positive conversation asking her had her and Mr Rowe had far to travel to get to Geelong. Ms R replied Yes, we have been up since 5:30, because we have [to] come from [P]. And the department only gives us a $20 dollars for petrol and then we have [to] spend $10 dollars on the parking out the front of the building and that was for only 2 hrs and she lamented on about how expensive it was [to] come for a visit with the petrol and the parking and then having [to] buy food. Writer suggested parking elsewhere that may be less expensive and writer also suggested her and Mr Rowe pack lunch and a thermos of coffee/tea at home [to] bring for the visit. Ms R said that she did not have time in the morning for that.
Mr Rowe and [X] were observed to be interacting together in a positive manner whilst Ms R and writer had a conversation. When [Ms R] turned her attention back to [X] and asked him if he wanted to play chasey, [X] immediately jumped up and began to chase her around the room and then out into the corridor. When he finally caught her he broke into a fit of giggles then he gave her a hug. [It] was then that Mr Rowe said to writer, “I [don’t] know how you people sleep at night, taking kids off of their parents”. Writer asked Mr Rowe to refrain from making negative comments toward writer. He replied well [it’s] true. Writer told Mr Rowe that the comment was upsetting and he apologised. Writer was able to observe and hear [X] and Ms R as they played just outside the room. [X] ran back into the room and back over [to] his Dad. Writer then advised Mr Rowe that there was only ten minutes left of access to go, but he did not appear to hear writer and he made no comment. As there were a number of toys, blocks, wrapping paper etc, etc scattered around the room, writer suggested to Mr Rowe that the room start to be tidied. He immediately launched into a tirade at writer saying that Oh, so now my son and I cannot even spend time together, first you take him away from me then you expect us [to] sit in this tiny room which is totally unacceptable for a child to have to sit in here for 2 hrs. Writer agreed that the room was not the ideal place to have a visit, but writer also made a comment that [X] had appeared to have a fun time today with his dad and Grandma.
Mr Rowe then repeated the comment “I [don’t] know how you people sleep at night, taking my son away”. [X] was in earshot when Mr Rowe said this. Ms R then approached writer coming very close to [writer’s] face and she appeared angry. She said to writer “this is an absolute disgrace [what’s] happened to my family and what we have been dragged through”. Writer was about to press the duress alarm as writer could see [Ms R’s] anger escalating. Mr Rowe told her to calm down which she did, walking out of the room, but not before saying, “you all [won’t] be happy until [I’m] dead”. [She] then began crying and walked out. Writer began to gather [X]’s things whilst Mr Rowe and [X] tidied the room. Ms R then came back into the room and she appeared calm but then almost immediately she launched into a verbal tirade saying that she was going to go [to] Channel nine and that she was going to go “very public with all this”. She was shaking her finger in writer’s face as she said this and she appeared very angry. [X] ran over to her and began trying [to] pull her back… telling her to “stop it”. She ignored him and he began tugging on her top, staying “stop it stop it”. He appeared upset.
Writer then told Ms R and Mr Rowe that the access was over and that writer and [X] were leaving. Both [Mr Rowe] and Ms R did not protest about this. The security guard who had been close by stood with writer when Mr Rowe and Ms R were saying [their] farewells [to] [X]. [X] appeared happy and relaxed on [separation] from his Dad and Grandma and took [writer’s] hand as writer and he stepped through the door. Writer asked [X] to wave to Dad and Nanna, but Ms R said to writer in a very loud angry tone, [it’s] “Poppa and Grandma and [don’t] you forget it”. [X] then pulled writer by the hand through the door. He appeared relieved that access had finished and he held [writer’s] hand tightly all the way back to the car. [X] fell asleep almost immediately in the car and slept for most of the journey awakening just around the corner from home.
The father said in cross-examination that he did not have any particular recollection of this visit. However, he acknowledged that he and the paternal grandmother probably had said that they would “take further” the way DHS had handled the matter and he continued to have that intention at the time of final hearing.
The father said that he and the paternal grandmother had been very concerned that [X] did not have strength in his fingers and did not have normal dexterity for his age. The father said that he had asked DHS to check [X]’s fingers. The father recalled that DHS had told him that [X] had been taken to a doctor and said that there were no medical concerns about his fingers. The father said that was pretty hard to believe because DHS had told him a lot of lies.
The father said that the DHS note was incorrectly worded. He said they always said he was angry when, for example, he had just corrected [X]’s manners. The father denied having said that [X]’s poor manners were [X]’s mother’s fault.
The father conceded that he probably said to the DHS workers:
I [don’t] know how you people sleep at night, taking kids off of their parents.
However, the father said that [X] had not been within earshot when he said that.
The father said that he recalled the paternal grandmother approaching the DHS worker, appearing angry and saying:
This is an absolute disgrace [what’s] happened to my family and what we have been dragged through.
However, the father said that it was nonsensical that the DHS worker would have been about to press the duress button. The father agreed that he had told the paternal grandmother to calm down and she left the room after saying:
You all [won’t] be happy until [I’m] dead.
The father said that no one at DHS treated him and the paternal grandmother with courtesy and respect. He said they were treated as guilty of domestic violence and perpetrators of child abuse from day one.
The father agreed that the paternal grandmother had come back into the room and said that they would go public. However, he said that she would have appeared stern rather than very angry.
The father agreed that [X] had gone over to his grandmother and told her to stop it. However, the father said that [X] was merely mimicking his father who had once told him to stop it while playing with a toy.
Notwithstanding the father’s disagreement with some aspects of the DHS case note of 16 March 2012, I accept that it is accurate. DHS staff are independent and trained observers. They have no reason to lie or distort the circumstances they have described. I consider their evidence to be more reliable than the father’s as he has an interest in minimising certain aspects of his own and the paternal grandmother’s behaviour.
c. the case note of 29 March 2012
The DHS case note of the supervised visit on 29 March 2012 (exhibit 12) includes the following:
Writer arrived at the family home to transport [X] [to] access with his [father] Mr Rowe and [the paternal grandmother] Ms R at the [DHS] office in Geelong. Ms Nishimura ([[X]’s] Mum) friendly and polite toward writer. After [Ms Nishimura] had strapped [X] into his seat and shut the car door Ms Nishimura asked writer what would happen when [DHS] were no longer involved in the case. Ms Nishimura appeared very concerned about this and she began to cry. Writer tried to comfort her but Ms Nishimura continued to cry. She said that she was very, very worried for her and [X]. Ms Nishimura put her hand on [writer’s] shoulder and said “[I’m] worried also for you”. Writer asked her what she meant by this and Ms Nishimura replied “Mr Rowe is a very angry man”. Writer reassured Ms Nishimura that there would be another worker going with writer today [to] supervise access and Ms Nishimura replied “Good”.
[X] quiet in the car on the way [to] access eventually falling asleep approx 30 minutes into the journey. As writer stopped to get gas/petrol [X] awoke. He began crying telling writer that “he wanted to go home [to] Mummy”. Writer attempted to soothe him managing to momentarily calm him before he began to cry again. Writer asked him if he felt okay and he nodded, writer then asked him if he still wanted to go and see his Dad. He said no initially, but after writer asked him again he nodded that he would like [to] go and see his Dad.
As writer and [X] got nearer to the office, writer heard whimpering and turned around to see that [X] had tears rolling down his face, his crying began to escalate and writer again attempted to soothe him. He did calm quickly but this time when writer asked him if he wanted to go and see Dad he remained mute. Writer rang [writer’s] Team leader … to alert him that [X] was presenting as distressed and that he was appearing hesitant to be attending access. [The Team Leader] advised that if [X] was presenting as distressed and not wanting to go to access then it would be in [[X]’s] best interest to cancel access. [X] appeared to have settled at this stage so writer asked [X] if he would like to go [to] access and he nodded his head and said yes. Writer passed this information on [to the Team Leader] and [X] and writer proceeded toward the Geelong office.
On arrival at the office, writer met up with [writer’s] colleague [Mr J] … who was [to] supervise the access with writer. Once in the office the parties were met by the reception staff as well as a worker from the adolescent team and a case aide from child protection. Mr Rowe and [the paternal grandmother] Ms R had arrived for access and were waiting in the reception area of the office. It was decided that [Mr J] and the worker from the adolescent team would go out and assess Mr Rowe and Ms R before access would commence. Writer and the case aide would wait inside with [X] while this was [occurring]. Whilst writer was waiting with the case aide, the case aide said [to] writer that she had had a bad experience with Mr Rowe where he had abused her during access and that she would “never ever do his access again and that he scared her”.
After approx 10 minutes, the workers came back. [Mr J] said that when he introduced himself [to] Mr Rowe, Mr Rowe said “I hope that you’re not that fucking guy that I spoke [to] on the phone the other day” [Mr J] replied “I have never spoken to you until now”. On hearing about this conversation, writer began to feel hesitant about letting access go ahead. [name omitted] (security at Geelong Office) came by and said that he had spoken [to] Dad and that Dad was now presenting as calm. On hearing that Dad was presenting as calm and appropriate it was decided that access would go ahead. Consideration was also given [to] the fact that [X] had travelled a long distance in the car [to] see his Dad.
Mr Rowe and Ms R were [initially] shown to one access room but complained in no uncertain terms that it was too small and not good enough. Ms R was heard [to] encourage Mr Rowe [to] go to Channel 9 or a Current [Affair]. Mr Rowe and Ms R were then shown to another access room, the writer, [X] and the worker from the adolescent unit entered the room. [Mr J] waited outside the room but in earshot, for the first 15 minutes of access until the adolescent unit worker left the room.
Mr Rowe and Ms R entered the room and on sighting [X] they both greeted him verbally. [X] was holding on [to] [writer’s] hand and writer could feel his grip tighten when greeted by his [father] and [paternal grandmother]. [X] initially appeared reluctant to let go of [writer’s] hand but when Mr Rowe and Ms R enticed him with presents he approached them. This appeared [to] anger Dad who then said [to] [X] “Ah [I] see when [there’s] toys you come hey”. Then he told [X] [to] come here son. [X] approached Dad [tentatively] allowing Dad [to] hug him. Dad observed to be bend down [to] [[X]’s] height on greeting him. [X] not observed [to] reciprocate his [Dad’s] greeting which caused Dad [to] ask him “[What’s] wrong son”? Mr Rowe then turned [to] writer and said in a sharp manner. “[What’s] wrong with my son”. Mr Rowe appeared agitated then he made a negative comment about [[X]’s] Mum saying that “[[X]’s] Mum has something to do with this, I just know it, she words him up before he comes to access”. Writer made no comment.
[X] appeared more interested in getting [to] his presents than greeting his father or grandma. [X] appeared indifferent during the greeting. Neither [Mr Rowe] or Ms R greeted writer but they did greet the adolescent worker, Mr Rowe heard [to] remark to the adolescent worker “Well [I’m] glad you are here” as he shot a glance in [writer’s] direction. Mr Rowe was neat and tidy in appearance and he appeared alert but writer observed his eyes to be red and bloodshot. Mr Rowe observed to sweat heavily at times during access, writer observing beads of sweat to pop out on his forehead.
Mr Rowe and [X] set about playing with the Lego blocks that had been a present for [X], Dad helping and encouraging [X] to put the pieces together, but also letting [X] be independent at times. Dad tried to engage verbally with [X] consistently, but there were times [X] remained mute appearing to want [to] concentrate on the task at hand. This appeared to frustrate Mr Rowe and he made comments about [X] “not speaking properly for his age” and “[[X]’s] verbal communication [has] [deteriorated] since he has been in his [mother’s] care”
[Mr J] then came into the room and the other worker left. Mr Rowe asked writer if “[[X]’s] fingers had been [X-rayed] yet” writer replying that writer did not know of this. Ms R then commented under her breath but still audible to writer that “[there’s] [definitely] something wrong with his fingers”. Writer looked toward [X] who was busily pushing [Lego] blocks together. Writer observed that [[X]’s] fingers appeared normal and that his fine motor skills appeared to be well developed, Writer could not see [anything] unusual about [[X]’s] fingers.
Ms R had brought [an] [iPad] to access and was attempting [to] take photos of [X] and Mr Rowe together or of [X] on his own. Ms R was following [X] around the room trying to get him [to] pose for pictures. Ms R was insisting that [X] pose ie [X] stand still and let me take your picture to which [X] [showed] considerable reluctance. [X] was busily playing and appeared to not want [to] be disturbed. Ms R was trying to get him [to] stay still but he refused and this appeared [to] infuriate Ms R who spoke harshly to [X] telling him that “if he did not pose for her then the presents would be taken back”. This appeared to upset [X] and he began protesting “No, no”.
Mr Rowe then turned to [Mr J] and the writer and said in an angry tone of voice, “and by the way, I want the access workers [to] take an inventory of the toys that we give [to] [X]” because “we” [don’t] believe that he gets the toys that we give him. Writer tried to reassure Mr Rowe that the toys were indeed handed to [[X]’s] mother but Mr Rowe began [to] rant that he did not believe this and that [X] had told him earlier that “his Mum takes his toys to the hospital” and then Mr Rowe stated that [X] had also told him that his Mum had taken “his favourite toy [to] the hospital as well”.
Mr Rowe stated that [X] had told him this during [today’s] access. Neither writer or [writer’s] colleague [Mr J] heard [X] say this. Mr Rowe then began to rant again about “access workers taking an inventory of [[X]’s] toys”. [Mr J] [initially] suggested to Mr Rowe that it was really his [responsibility] to keep a record of items given as well as proof of purchase if he is serious about it and that it’s not a DHS role, [Mr J] also suggested he not talk about this during access and they could discuss after access was finished if it was upsetting him. Mr Rowe continued to rant about [DHS], [DHS] workers, [[X]’s] Mum etc,etc,etc. Mr Rowe began to rant again about [[X]’s] toys and [Mr J] told Mr Rowe that this is not the place for this conversation. Ms R seemed to be encouraging Mr Rowe to get upset saying “you see what they are like, hear the way they are talking to you”. Mr Rowe mumbled something [inaudible] under his breath.
The mood in the room had become tense after this and Mr Rowe became [visibly] upset, [he] tried to hug [X] but [X] pushed himself away from Mr Rowe.
All at once Mr Rowe jumped up, left the room he was gone for a minute or two. [Mr J] and the writer unsure about [Mr Rowe’s] condition or intentions. When [Mr Rowe] returned he was crying and [visibly] upset but also very angry accusing the writer and [Mr J] for his family being in their current involvement with [DHS]. Writer attempted to calm Mr Rowe but his tone of voice was escalating [to] a high angry pitch and his face had become bright red. He continued [to] yell at writer and [Mr J] that “all you offer me is 2 hrs a fortnight”. He was presenting as very angry and he appeared not [to] notice that [X] was becoming upset. When [Mr Rowe] leant toward [Mr J] and writer pointing his finger whilst cursing about “the damage [DHS] had done [to] his family”.
At this point [X] jumped up and ran at his [father], placing his hands near his waist and [tried] to push him back out of the room, whilst saying Stop,Stop. Mr Rowe then turned and left the room in a hasty, hurried fashion. Ms R then grabbed her belongings also and took off out of the room, but before she left the room she turned to [Mr J] and writer and said in [an] angry tone, “he is upset because of what you people are doing to our family”. Neither [Mr Rowe] or Ms R were observed or heard to attempt to [comfort] [X] either physically or verbally before they left the room even though [X] was visibly upset. [Mr J] later told writer that when he first … walked into the room he could smell a strong odour of marijuana. Writer would like [to] comment that writer could not smell anything due [to] having hayfever and a blocked nose.
[Mr J] and writer quickly gathered [[X]’s] things and [X] and exited the room, lest Mr Rowe and Ms R returned [to] the room. [X] grabbed [writer’s] hand and writer could feel his grip tighten. [name omitted] (security) escorted writer [Mr J] and [X] down [to] the carpark. He revealed that Dad had been angry out in the reception area but had eventually left. [X] was presenting as withdrawn and he appeared relieved that access was over. He kept a tight grip on [writer’s] hand up until writer went [to] strap him into his car seat. [X] remained mute during the drive back to Melbourne eventually falling asleep as the car neared Melbourne.
The father said in cross-examination that he did not recall swearing at anyone called [Mr J] or being calmed down by a security guard. The father did confirm that he complained about the rooms that were made available for visits. The father said that most of the times when he had seen [X] under DHS supervision [X] had appeared scared and hesitant. The father denied that he had become angry when [X] appeared to be willing to approach the father only when [X] was offered toys.
The father said that he had no specific recollection of saying to [X] that his mother “words him up” before visits. The father said that [X]’s verbal communication deteriorated after being solely in his mother’s care, but that it had improved since he started kindergarten. The father said he probably would have asked to have [X]’s fingers X-rayed.
When asked about whether he had wanted DHS to take an inventory of [X]’s toys, because he did not believe [X] was getting the toys his father gave him, the father said that he probably sounded no more angry than he did in court. He said that he was just direct and blunt. The father agreed that he had asked DHS to make an inventory of the toys. The father said that he continues to be concerned about whether [X] still has the toys that his father has given him. However, the father went on to say that, as [X] is older and smarter now, the mother would not be able to take from him the toys the father had given him.
The father said he could not recall [X] pushing himself away from his father. The father said that he did not recall ever being tearful during DHS visits. However, the paternal grandmother said in cross examination said that she did remember the father returning to the room crying and clearly upset. The father said that he did not believe [X] tried to push him out of the room. He claimed that he would have comforted [X]. He denied that he had been using marijuana.
The father agreed that DHS had prohibited the paternal grandmother from attending the supervised visits after the visit on 29 March 2012.
Notwithstanding the father’s disagreement with some aspects of the DHS case note of 29 March 2012, I accept that it is accurate for the reasons previously expressed. In addition, the paternal grandmother confirmed that the father had returned to the room crying and clearly upset, contrary to the father’s denials.
In relation to the smell of marijuana, I accept that [Mr J] may have smelt marijuana. However, I do not accept that evidence as being sufficiently compelling to make a finding that the father had used marijuana immediately prior to the visit on 29 March 2012. Smell is probably the least reliable of our senses. Even if [Mr J]’s perception were accurate, it would be a very tenuous basis upon which to conclude that the father, rather than someone else, had used marijuana. As mentioned previously, the father was not required in the course of these proceedings to do drug tests. However, he did do some drug tests under the aegis of DHS and those tests proved to be negative.
It is noteworthy that, in the DHS case note of 29 March 2012, it is clear that the paternal grandmother contributed to the conflict and to the father’s stressed and confrontational emotional state.
d. the discussion on 1 May 2012
The father agreed in cross examination that on 1 May 2012 he had quite possibly said to DHS that the mother should be tested for drugs because Melbourne has a problem with heroin and therefore the mother very probably takes heroin.
This is an example of the father treating a remote or theoretical possibility as a real likelihood. It is an extraordinary leap of logic to suggest that the mother would be using heroin simply because there are some people in Melbourne who use heroin.
e. the report of 3 August 2012
On 3 August 2012, DHS prepared a report in relation to [X]. It said:
The Department are concerned how Mr Rowe and Ms R [the paternal grandmother] have presented towards workers during supervised access visits with [X] and subsequently the impact that this may have on him emotionally and physically.
During two access visits on 15 March 2012 and 29 March 2012 [X] intervened when Mr Rowe and Ms R became angry with access workers and raised their voices.
There are also concerns in relation to Mr Rowe and Ms R making denigrating comments about Ms Nishimura in [X]’s presence and the impact this would have on him emotionally.
In cross examination, the paternal grandmother denied that she had become angry at DHS workers in [X]’s presence. She also said that she had never said anything negative about [X]’s mother and agreed that she is a good mother. However, the paternal grandmother, when pressed about whether she had said anything negative about [X]’s mother, she said that she had asked about [X]’s hands.
The paternal grandmother also said that her son had never had a psychiatric problem, except perhaps when he was admitted to [W] Hospital in 2012. She said he had had some difficulties as a result of smoking marijuana and also some difficulties with her then partner.
As previously discussed, I have found the DHS case notes of
15 March 2012 and 29 March 2012 to be accurate. I do not accept the denials of the father and the paternal grandmother in relation to them being angry towards DHS workers. The father and the paternal grandmother evidently have no comprehension of the impact on [X] of their anger towards DHS workers. For this reason, I consider it to be important, for [X]’s benefit, and for the benefit of [X]’s relationship with his father, that the father undertake an anger management course. Apart from helping the father to deal appropriately with feelings of anger, such a course will also assist the father to understand the impact of his anger on those around him.
The father and the paternal grandmother also appear to not comprehend the harm that they do to [X] by discussing his mother in front of him in a negative way. For this reason, I consider it to be important, for [X]’s benefit, and for the benefit of [X]’s relationship with his father, for the father to undertake a post separation parenting program. Such a program would hopefully assist the father to understand the impact on [X] of the father’s negative comments and insinuations about [X]’s mother.
It is perhaps worth noting that one of the most frequent orders that the court makes in parenting matters is an order restraining each parent from denigrating the other. Obviously, in an ideal world, each parent after separation would make a point of frequently saying positive things to his or her child about the child’s other parent.
f. the DHS case note of 10 October 2012
A DHS case note for 10 October 2012 (exhibit 14), two days after the father was admitted to [W] Hospital for one week, states as follows:
PGM informed that Mr Rowe is very [unwell] with a suspected flu virus and that he will not be attending access. PGM sounded short of breath during the call and was speaking slowly. I asked PGM if she too was unwell. PGM stated that she was not sure but thought she might also be getting what Mr Rowe has. I advised PGM to have Mr Rowe call the Duty worker today. PGM stated that she believed Mr Rowe would be too unwell to call today and that she would let him know to call PW [name omitted] possibly tomorrow. PGM stated that both Mr Rowe and [X] would be disappointed that access was not happening as they had been looking forward to going to the zoo. PGM asked what time access would have been taking place. I informed that access would have been between 12pm – 4pm. PGM stated that Mr Rowe would not be coming to access as he would not want [X] to become unwell.
The paternal grandmother gave oral evidence. She maintained in cross-examination that she said on 10 October 2012 that her son was ill. She denied saying that he had the flu. She agreed that she probably sounded short of breath. She denied saying that she might have been getting what Mr Rowe had. She confirmed that she did not tell DHS that the father had been admitted to hospital as an involuntary patient after suffering a significant episode of paranoia.
I do not accept the paternal grandmother’s claim that she did not tell DHS that the father had the flu and that she might have been getting what he had. It is simply not plausible that the DHS record would include those things if she had not said them.
Consequently, I do not accept that the paternal grandmother was an honest witness. Moreover, because of her deceit of DHS about the father having the flu, and because of her failure to tell DHS, on her own admission, that the father had been admitted to hospital as an involuntary psychiatric patient, I am not able to accept that the paternal grandmother, if she were to be a supervisor, would put [X]’s needs ahead of her or her son’s wish to continue spending time with [X].
g. the DHS case note of 26 March 2013
The DHS case note of 26 March 2013 (exhibit 16) states as follows:
P/C to Ms Nishimura to discuss this [week’s] access arrangements. I advised Ms Nishimura that I had carried out a home visit to [Mr Rowe’s] new tenancy and there were no concerns around the safety of the unit and [X] having access there. I advised Ms Nishimura of [X]’s bedroom at Mr Rowe’s house and the fact that there would be no concerns in relation to [X] having overnight access with Mr Rowe. Ms Nishimura again stated that she does not feel that [X] is ready to have overnight access as he has never slept over anywhere else before. I encouraged Ms Nishimura to continue to consider this and discussed the benefits of having overnight access at this stage whilst we continue to be involved and can facilitate the handover process and deal with any issues.
The mother agreed in cross-examination that she had had such a conversation with DHS. It indicates that the mother was somewhat resistant to [X]’s time with his father developing in the usual way from supervised time to unsupervised daytime and then unsupervised overnight time. The mother’s resistance was perhaps understandable in view of the father’s previous violence towards her.
h. the DHS case note of 22 April 2013
The DHS case note of the supervised visit 22 April 2013 (exhibit 19) states as follows:
P/C [received] from Mr Rowe, he advised that he was calling in relation to access this week as Thursday is a public holiday. Mr Rowe asked if he would be able to collect [X] on Wednesday night and return him to the office on Friday morning. I highlighted to Mr Rowe that as yet overnight access has not been agreed and therefore this would not be possible. Mr Rowe was unhappy with this.
I advised Mr Rowe that access could possibly be moved to Tuesday 3pm – 7pm as [X] does not attend child care on a Tuesday. Mr Rowe agreed that he could get time away [if] access could be moved to Tuesday.
P/C to Ms Nishimura to check if it would be possible to move the access to Tuesday this week and Ms Nishimura was in agreement with this. I again discussed with Ms Nishimura the issue of [X] [having] overnight access with his father whilst we are still involved. Ms Nishimura again stated that she is not ready for this and does not feel that [X] would settle anywhere else as he has never stayed out overnight anywhere else. I again advised Ms Nishimura to continue to consider the benefits of [allowing] this overnight access to occur whilst DHS are still involved in order to monitor/oversee/facilitate handover.
P/C to Mr Rowe to advise that access would be arranged for tomorrow 3pm – 7pm
In cross-examination, the mother said that she did not recall that conversation. It appears from the transcript that there may have been a difficulty arising from interpretation in relation to this file note.
the DHS case note of 24 April 2013
The DHS case note of 24 April 2013 (exhibit 18) includes the following:
P/C to … Child Care Centre. I spoke with the manager of the centre and explained that Mr Rowe has requested information in relation to [X]’s progress at child care. I was advised that in order to gain this information I would [need] to gain written consent from Ms Nishimura and provide this to the child care as they have been advised not to share any information with [X]’s father.
In cross-examination, the mother prevaricated about whether she had instructed [X]’s childcare centre not to give any information to his father. Eventually, the mother said that she had only told the childcare centre not to disclose any information to the father that would disclose her address.
I do not accept the mother’s evidence about this. As discussed above, the DHS workers have no reason to misrepresent a parent’s statements. Additionally, in the DHS record mentioned below, the mother reiterated the same sentiment. Moreover, the mother agreed that, on
17 May 2012, a DHS worker asked the mother if [X] could do a drawing for his father at childcare. She said no, explaining that [X] did not like drawing.[3] That is highly implausible. Children at childcare draw and paint every day. It seems to me that the mother, in these incidents, was indicating an unwillingness to facilitate a bond between [X] and his father.
[3] Transcript page 282 line 15
j. the DHS case note of 9 May 2013
The DHS case note of 9 May 2013 (exhibit 17) includes the following:
I discussed with Ms Nishimura the letter which I had prepared for [X]’s child care which would give permission for them to provide information in relation to [X]’s progress to Mr Rowe. Ms Nishimura stated that she was not in agreement with this and questioned why Mr Rowe wanted this information and what he would do with it. I explained that Mr Rowe only wanted information in relation to [X]’s progress at Child Care, I clearly outlined in the letter that no information in relation to the whereabouts of the Child Care Centre should be disclosed and therefore Mr Rowe would not be able to use this and I questioned Ms Nishimura what else Mr Rowe could use this information to do. Ms Nishimura stated that she does not get this information from Child Care and therefore did not see why Mr Rowe should have this.
I then transported [X] to access with Mr Rowe. [X] was quiet as he had just woken up however on arriving at Mr Rowe’s house he … jumped out the car and ran to his father. Mr Rowe greeted [X] with hugs and kisses. [X] stated to Mr Rowe that he had a sore tummy and wanted a drink of water. Mr Rowe stated that he would monitor this and would possibly not take [X] swimming if he had an upset stomach.
Mr Rowe brought [X] back approx 15 minutes early as he stated that [X] was complaining of a sore tummy and wanted to go to sleep. Mr Rowe advised that [X] did not eat anything for dinner although he made him several different items which he would [usually] eat. [X] wanted to be carried out to the car. I advised Ms Nishimura of this and she advised that she would monitor [X].
This entry is connected with the previous one. As discussed above,
I accept that the DHS record is accurate.
The Berry Street visits
a. the visit on 29 June 2014 (second visit)
In relation to the visit on 29 June 2014, the Berry Street notes include the following:
… Mr Rowe asked, “Do you still have the Venom character I bought you?” [X] said, “No we had to put it in the bin”. Mr Rowe asked why and [X] said, “Because it cut my hand” Mr Rowe asked if [X]’s mother threw the toy away and [X] said “yes”. Mr Rowe said, “You should have just put it on the shelf because it is a collectable toy. I always buy you collectable items that are not to be thrown away.” “You are entitled to keep your toys [X]. I’m not going to buy you any toys if they get thrown in the bin.” “Next time I give you something make sure you keep it.” [X] said “Okay” and his father said “Otherwise I will not buy you any presents for your birthday.”
The father said in cross-examination, when asked whether that was an appropriate conversation to have with [X], that it seemed pretty fair. He said the toys were collectors’ items. When asked whether he had checked with the mother through his lawyer that the toy had been thrown out, the father said that he cannot get his lawyers to call him back.
The father agreed in cross-examination that he had said to [X] a little later:
Tell your Mother that you should be allowed to play with the toys I buy you.
The father said in cross-examination that [X] should know that he is allowed to play with those toys and that it was his right.
The note went on to say:
As they were reading the book Mr Rowe and [X] talked about some toys that had been bought for him. Mr Rowe asked if [X] still played with the Nintendo he had got him. [X] told his father he did not because his mother does not know if it is charged or not. Mr Rowe told [X] that he needed to “Tell your mother that you should be allowed to play with the toys I buy you.” [X] told his father that Ms Nishimura had thrown out one of the toys he had bought for him. Mr Rowe asked why and [X] responded that he did not know. Mr Rowe said, “That is just not good enough.” [X] said “But I still play Lego city”. Mr Rowe said, “That’s good”. [X] said, “My mum said if you would like to buy me a Lego city for my birthday then I should tell you the one I already have.” Mr Rowe raised his voice and said, “You should tell your mother to stop telling me to buy things.” [X] sat still looking at the worker. The worker informed Mr Rowe that he should just focus on playing with [X] and enjoying his time with him. Mr Rowe’s eyes filled with water and he put his head in his hands. The worker asked Mr Rowe if he would like to take a break for a few minutes. Mr Rowe turned to the worker and said in a raised voice, “I would like to tell my son the truth about his mother but you won’t let me”. The worker advised Mr Rowe that she would not allow any negative talk about [X]’s Mother. The worker advised Mr Rowe that he should try and enjoy his time with his son and not talk about Ms Nishimura. Mr Rowe asked the worker if she would be documenting what had occurred in the visit. The worker advised that she would be.
The father said in cross-examination that he was not sure whether the notes were entirely accurate but he did remember the conversation. He denied that he had raised his voice. However, the father did recollect that he had told the worker that he wanted to be able to tell [X] the truth about his mother. He said that the truth about [X]’s mother was that she kept him in child protection to keep the father out of his life and that the father is just expected to buy toys for [X]’s birthday and otherwise is not allowed to have any input into [X]’s life or be his father.
The note went on to say:
Mr Rowe continued reading the Spiderman book to [X]. Mr Rowe asked [X], “Did you ask your Mum if I could buy you a phone for your birthday?” The worker advised Mr Rowe that it was not appropriate for [X] to be passing messages between his parents. [X] sat close to his father, leaning into him and Mr Rowe continued to read the Spiderman book to [X].
The father agreed in cross-examination that he had asked the reported question. When asked whether it was appropriate to have done that, the father said that he thought [X] was old enough to have a mobile telephone. When asked whether it was appropriate for him to ask [X] to talk to his mother about getting a mobile telephone the father said that was pretty normal family stuff. The father said that he should be able to tell [X] to tell his mother things. The father said that [X] was six years old, and he should be treated with a bit of respect. The father said that [X] was quite capable of asking his mother if he could have a telephone to ring his father. The father clearly has no insight into why the Berry Street worker tried to prevent him from having that type of conversation with [X] and the father shows no inclination to try and find out why.
The notes went on to say:
[X] kneeled at the table and Mr Rowe put a sandwich on a plate for [X]. As [X] ate Mr Rowe told him that he should eat with his mouth closed. Mr Rowe motioned that he was zipping [X]’s mouth to keep it closed while he ate. [X] smiled. [X] then did the same motion to Mr Rowe. Mr Rowe closed his mouth and [pretended] he could not talk, [X] motioned to unzip and Mr Rowe spoke. [X] laughed as he repeated the action, Mr Rowe playing along. [X] continued to eat his sandwich. He picked up a toy and laughed saying the toy was doing a poo. He repeated this several times laughing. Mr Rowe told [X] it was not the time or place to talk about poo while [you’re] eating at the dinner table. [X] stopped.
[X] picked up a soft toy and said, “This bear will punch you in the face.” Mr Rowe asked [X] “Why would you say that?” Mr Rowe explained that bears like to fish and the conversation turned to fishing in the snow. While they talked Mr Rowe encourage [X] to eat his sandwich, sometimes reminding him to eat with his mouth closed. [X] mentioned the word doodle and Mr Rowe reminded him not to talk about these things while he is eating at the table. Mr Rowe asked [X] if he wanted to look at the wizard book. [X] shook his head. They continued to talk with [X] sitting very close to his father and laughing at his comments. [X] drank from his drink bottle and it made a funny sound. Mr Rowe asked [X] if he is drinking or playing music. [X] laughed. [X] had another drink and it made the sound again. [X] laughed and said it sounded like someone going to the toilet doing a poo. Mr Rowe told [X] that he has spoken of this before and that we do not talk about these things at the table.
[X] picked up the bear and pretended that the bear was asking his father what his name was. [X] repeated this. Mr Rowe said “You know what my name is.” [X] said “toilet” and laughed. Mr Rowe took the bear out of [X]’s hands and told him that it was not funny and that he is his father. Mr Rowe looked at the worker and suggested that maybe they should finish up. The worker explained that there is about ten minutes to go and asked Mr Rowe if he wanted a quick break. Mr Rowe said that he will be fine and told the worker that he is concerned about the way [X] is talking to him and who might have put those ideas into his head. The worker suggested that they talk about this after the visit. The worker asked about the books on the table. [X] talked about the books and that his father had brought them for him. [X] and his father began to talk about friends and school. [X] told his father that he goes to [omitted] primary school. Mr Rowe gave [X] a muffin which [X] began to eat.
During her oral evidence, Ms L was brought up to date with the events of October 2012 and the other events that had emerged since she prepared her report. Ms L said that she had read that morning the notes of the supervised visits between [X] and his father. Ms L was concerned that the notes indicated a lack of insight on the father’s part which could undermine [X]’s relationship with his mother. Ms L considered that, if these behaviours were current, then supervision of [X]’s time with his father would need to continue.
Ms L particularly noted a recurring theme of the father misinterpreting information or behaviours that could be seen as developmentally appropriate, blaming the mother for what the father perceived to [X]’s inadequacies and communicating the father’s perceptions to [X]. Ms L also noted that the father was not responsive to clear messages given by [X] about what he liked or did not like.
Ms L was concerned that without supervision and some restriction on what the father could say to [X], there was a risk that [X]’s relationship with his mother could be undermined. That could result in emotional and psychological damage to [X]. Ms L noted that the father gave [X] the message that the mother was not supporting [X]’s relationship with his father and that he was unsafe in his mother’s care. Ms L noted that the father’s messages to [X] did not accord with reality as experienced by [X]. Ms L said that she would anticipate that it would become increasingly difficult for [X] to manage psychologically the father’s undermining comments of the mother.
Ms L considered that to address these problems, supervision to some extent would assist. However, the notes of the supervised visits clearly demonstrate that the father persists in making statements which undermined [X]’s relationship with his mother notwithstanding that supervisors were present.
Ms L considered that real change could only be brought about by the father engaging in a process that would assist him in developing insight into [X]’s experience and insight into understanding developmentally appropriate behaviours from [X].
Ms L noted that the father did not present as aggressive with [X] although the father had been aggressive in his interview with Ms L. She was concerned that as [X] becomes older and his behaviour becomes more challenging as he gains independence, the father may have real difficulties in responding appropriately to [X].
Ms L was asked particularly to read the case notes of the DHS supervised visits on 16 and 29 March 2012. Ms L said that they indicated that the father’s behaviour was very uncontained and showed poor regulation of his own emotional state. Ms L considered that the father demonstrated a lack of insight into how to protect [X] from the father’s own anxieties and frustrations and lacked the ability to understand what [X]’s experience of the father’s behaviour might be.
Ms L considered that the father’s behaviour on 16 and 29 March 2012 was very distressing for [X]. She said that [X] openly demonstrated his distress by attempting to remove his father from the room and asking his father to cease acting in that way. Ms L said that, for [X], it was probably a very anxiety provoking experience.
Ms L considered that it was not possible to identify a point when unsupervised time might be appropriate. Ms L considered that unsupervised time would only be appropriate if the father engaged in long-term treatment. Having said that, Ms L confirmed that [X] does connect with his father positively on many levels and it was very important for [X]’s identity formation to have a relationship with both of his parents.
Ms L considered that if finances did not permit a private supervisor, it would still be in [X]’s best interests to see his father four times a year under the supervision of Berry Street. That would enable [X] to know that his father was still there and to have some positive interactions with him. If finances did permit a private supervisor, Ms L considered that visits once per month with his father would be in [X]’s best interests.
Ms L also agreed with Dr D that the father should engage with a psychiatrist and undertake a parenting course. Ms L also agreed that if the father obtained that assistance, and [X]’s time with his father and supervision progressed well, it may be that in two years time it would be possible for [X] to have unsupervised time with his father.
Ms L considered that, in view of the history of the matter, the mother and father would not be able to make joint decisions in relation to [X]’s long-term welfare.
Ms L also considered that, from [X]’s perspective, it was important for him to have an opportunity to visit his family in Japan. Ms L considered that there would be no impediment to [X] travelling if the court had some assurance around the mother’s intention to return to Australia.
I accept Ms L’s evidence as set out above.
The best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
This proceeding commenced on 6 June 2012. The version of s.60CC of the Act that was in force on that date applies to this proceeding.
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
In addition, the court must consider the matters set out in subsections (4) and (4A). I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There was no dispute that [X] would benefit from having a meaningful relationship with his mother.
The mother and the independent children’s lawyer acknowledged that [X] would benefit from having a relationship with his father. Ms L gave evidence, which I accept, that a relationship with his father would help [X] with his identity formation.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father suggested that the mother may have sexually abused [X]. He claimed that [X] slept in his mother’s bed, she said his bottom was like a peach and [X] had shown interest in his father’s nipples. The father construed these circumstances to amount to evidence of sexual abuse by the mother. However, the professionals involved with [X] have not been concerned about any such abuse. All in all, it appears that the father’s concerns about this matter are no more than an example of him misconstruing events and regarding a remote possibility as a likelihood.
The father and the paternal grandmother were also concerned that the mother had mistreated [X] in some way that had resulted in him having limited strength and dexterity in his fingers. This matter was raised by the father with DHS. However, DHS was satisfied that there was nothing untoward in relation to [X]’s fingers. There is nothing in the material before the court to suggest that there is anything wrong with [X]’s fingers or that the mother has done anything to [X]’s hands.
The father was also concerned that the mother has not enabled [X] to learn English and she has only spoken to him in Japanese. Having said that, the father acknowledged that, since starting kindergarten, [X]’s English had improved. It is natural that [X]’s mother speaks to him in her native language. It is important for [X] that he is able to speak Japanese to fully engage with his Japanese heritage and culture. In the future, being able to speak Japanese may well have practical and financial benefits for [X].
If [X] were to have unsupervised time with his father, there would be some risks to [X]. The most significant risk would arise if the father were to have another psychotic episode. [X] is only six years old and still very vulnerable. If the father had a repeat of the 2008 episode, [X] would presumably be very frightened and would possibly be in physical danger. It seems that the 2008 episode and the 2012 episode were the culmination of several days of increasing paranoia and strange behaviour on the father’s part. That sort of behaviour could also be very frightening and possibly physically dangerous for [X].
The other type of risk to [X] if he were to spend unsupervised time with his father is that the father would say things to [X] that would undermine his relationship with his mother. It is obviously very important for [X] that he have a strong bond with his primary carer and that he not be led to believe by his father that the mother is not safe or is not acting in his best interests. The DHS and Berry Street records indicate that the father has said many things to [X] that would tend to undermine [X]’s relationship with his mother. That could have an adverse effect on [X] emotionally and psychologically.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
At the time of the family report interviews, [X] was too young to have expressed any views. However, his behaviour during supervised visits with his father suggests that he generally enjoys spending time with his father and would want to continue to do so.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X] clearly has a very strong and loving bond with his mother.
As the independent children’s lawyer acknowledged, [X] loves his father and the father loves [X]. [X] spent virtually no time with his father from the time of [X]’s birth until his parents reconciled in [P]. The family were together for a relatively short time when they separated again. Since then [X] has only spent short periods of time with his father. Their relationship has naturally been impacted by the limited amount of time they have spent together.
When [X] lived with his parents together in [P], he also lived with his paternal grandmother. He appears to have had an affectionate relationship with her. However, the paternal grandmother was eventually not permitted by DHS to attend supervised visits because of the things that she said and her angry demeanour.
[X] has had very limited time with his Japanese relatives. His maternal grandmother met him on a visit to Australia when he was quite young.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father in a general sense is willing and able to facilitate and encourage a close and continuing relationship between [X] and his mother. However, as stated above, the father persists in saying things to [X] which tend to undermine that relationship.
The mother maintains that she is willing and able to facilitate a relationship between [X] and his father. However, it was only in closing submissions at the final hearing that the mother agreed to provide copies of school photographs of [X] to the father and copies of [X]’s school reports to the father.
DHS asked the mother to ask [X] to do a drawing at child care to give to the father. However, the mother’s response was that [X] did not like drawing and preferred to play outside. The result was that [X] did not do a drawing for his father. It is very difficult to believe that [X] would have liked drawing so little that he could not have been persuaded to do a drawing for his father. This circumstance appears to be indicative of the mother, at least at that time, being somewhat unwilling to facilitate and encourage a close and continuing relationship between [X] and his father. Having said that, the mother has not obstructed visits between [X] and his father over a period of years.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Neither party’s proposals amount to a major change in [X]’s circumstances. At most, he would spend alternate weekends and half school holidays away from his mother. It is unlikely that that would have any significant effect on [X], provided that he could be safe physically, emotionally and psychologically while with his father.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
It was not suggested that there was any practical difficulty or expense in [X] spending time with his father, other than in relation to private, professional supervision. The father said that if need be he would manage to pay for such supervision.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother demonstrably has the capacity to meet [X]’s needs, except, of course, his need for his father.
In general, the father has the capacity to meet [X]’s needs, provided that the father does not have a psychotic episode and provided that the father refrains from undermining [X]’s relationship with his mother. The father being prone to angry outbursts may result in the father not having the capacity to meet [X]’s needs as he grows up and his behaviour becomes more independent and challenging.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X] is half Japanese and half Australian. It will obviously be very important for him to be able to enjoy his Japanese culture and traditions.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has demonstrated an admirable attitude to the responsibilities of parenthood.
The father has demonstrated that he has a genuine wish to be involved in [X]’s life and to be a father to him. The father unfortunately took an ecstasy tablet two days before [X]’s birth which led to the psychotic episode in 2008. That in turn resulted in the father having virtually no involvement in [X]’s life for the first 18 months. Later, the father perpetrated domestic violence against the mother in [P] which again resulted in the father being largely excluded from [X]’s life. In other words, the father’s actions have often resulted in him, largely, not being able to meet the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Most significantly, the father perpetrated family violence towards the mother during the psychotic episode in 2008 and on 16 June 2011.
The former incident occurred when the mother was nine months pregnant and the latter incident occurred in [X]’s presence.
The material before the court indicates that [X] was very frightened during that incident.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Final family violence orders have been made against the father as outlined above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is difficult to know what order would be the least likely to lead to the institution of further proceedings in relation to [X]. The father’s counsel suggested that after a year or two of engagement with appropriate services, the father may be in a position to have unsupervised time with [X]. That may result in the institution of further proceedings. However, it would not be possible to make orders in the current proceeding that would cover all eventualities. In the circumstances, it would be best to make the appropriate orders to deal with the immediately foreseeable future.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the present case, the presumption of equal shared parental responsibility has been rebutted by the family violence perpetrated by the father against the mother. In any event, the father conceded that it would be in [X]’s best interests for his mother to have sole parental responsibility for him. I also consider in all of the circumstances of this case that it is in [X]’s best interests for his mother to have sole parental responsibility for him. There is no real prospect of [X]’s mother and father being able to communicate effectively with each other in relation to [X]’s long-term welfare.
That being so, it is not necessary for the court to consider whether it would be in [X]’s best interests for him to have equal or substantial and significant time with each of his parents. In any event, such time was not sought by the father.
The father told court that he had undertaken a number of courses at the direction of DHS. However he was not in a position to provide to the court a certificate of completion in relation to any such courses. He indicated that he was willing to do a men’s behaviour change program and an anger management course. It seems to me that it would be beneficial for [X], and his relationship with his father, if the father were to do such courses. It might also assist the father with aspects of his life in general. There will be orders for the father to undertake such courses.
In addition, it seems to me that it would be beneficial for [X], and his relationship with his father, for the father to undertake a post separation parenting program. Such a program would assist the father to understand the effects on [X] of hearing one of his parents denigrate the other. There will be an order for the father to undertake a post separation program as well.
A standard post separation parenting program may not be sufficient for the father to gain the appropriate insight into the effect of his words and actions upon [X]. In that event, it would also be beneficial for [X], and his relationship with his father, for the father to attend upon a family consultant to obtain personalised guidance on how best to interact with [X]. Clearly, that guidance could only be appropriately directed if the family consultant had a clear history of this matter. Consequently, there will be an order permitting the father to give a copy of these orders and reasons to a family consultant for the purpose of guidance on the father’s interactions with [X].
Dr D recommended that the father undertake a parenting course. I assume that Dr D meant a course directed to the normal development and care of primary school aged children. The father was offended by some of [X]’s words and deeds that were within the normal range for children of his age. There will also be an order for the father to undertake such a course.
It is not necessary for the father to undertake all these courses at once. He would probably be well advised to spread them out over a year or two. As the father is presently unrepresented, the independent children’s lawyer should assist the father to identify the appropriate courses and programs and an appropriate family consultant for him to attend.
I do not consider that it would be in [X]’s best interests to spend unsupervised time with his father at this point. [X] is still very young and vulnerable. If the father were to have a psychotic episode while [X] was in his care, the effects on [X] could be severe. In any event, the father at present lacks insight into the impact on [X] of the father’s negative comments about the mother. This issue was emphasised by both Dr D and Ms L. Once the father has undertaken the various courses mentioned above, there is some prospect that the father will be able to alter his approach. It may then be possible for [X] to start having unsupervised time with his father.
This view also extends to unsupervised Skype contact. As the notes of supervised time show, the father has persisted in making inappropriate comments in [X]’s presence, even when a supervisor has told him not to.
I do not consider that the paternal grandmother would be a suitable supervisor. She has some serious health problems and is somewhat frail. Additionally, the paternal grandmother in the past has contributed to the negative commentary about the mother and has thus undermined [X]’s relationship with his mother. Moreover, the paternal grandmother did not disclose to DHS that the father was hospitalised in October 2012. At the very least, this amounts to a lie by omission. The paternal grandmother cannot be regarded as a person who would put [X]’s best interests ahead of her own wish, and the father’s wish, to spend time with [X].
That leaves professional supervision. The independent children’s lawyer told the court that Berry Street Children’s Contact Service is only able to supervise [X] spending time with his father three or four times a year. The father indicated that he would be prepared to pay for a private supervisor for four hours per month if there were no other option. It seems to me that there is no other option in [X]’s best interests.
The court was not apprised of any service that could supervise Skype contact between [X] and his father. Consequently, there will be no order for that to occur.
I am mindful of the reluctance of courts to order long-term supervision: O’Keefe & O’Keefe [2009] FamCA 382. However, it appears to be the only option in this case where the father has a genuine wish to be a parent of [X] and [X] has clearly valued his time with his father. This is not a case in which it would be in the child’s best interests to spend no time with a parent.
It may be that in a couple of years, the father will have gained the appropriate insight and, with appropriate treatment, his mental health may have improved to the extent that unsupervised time would become a possibility.
Although the father agreed to pay for professional supervision, he did say in closing submissions that a father should not have to pay to see his child. That is true in most cases. However, in most cases, the father does not have the psychiatric and police history of the father in this case. That history, unfortunately, makes paid supervision necessary, at least for the time being.
The mother sought an order that the father be restrained from being within 500 metres of [X]’s home or school. In all the circumstances of this case, including that the father has apparently not approached [X]’s school even though he knows where it is, I consider that a restraint of 200 metres is sufficient.
As is very common in family law matters, it is in [X]’s best interests that each of his parents be restrained from denigrating the other parent to or in the hearing or presence of [X]. As discussed above, the father has frequently denigrated the mother in [X]’s presence. There was no cogent evidence that the mother had denigrated the father in [X]’s presence but it is appropriate that she be restrained from doing so in any event.
It is very important for [X] and his relationship with his father that the father continue to have psychiatric treatment. To that end, it is fundamental that any psychiatrist treating the father have a full history of the father’s mental health and police record to be able to give the father proper treatment. Accordingly, there will be orders for the father to comply with all reasonable directions of Dr C and for the father to give Dr C a copy of these orders and reasons. In particular, it is important that Dr C is aware of the father’s history of psychosis so that the prescription of dextroamphetamine might be altered.
In relation to [X]’s travel to Japan, the father, to his credit, consented to various orders to enable [X] to spend about a month in Japan this Australian summer. The trip seems to me to be in [X]’s best interests. There is a very low flight risk, particularly as Japan has recently become a signatory to the Hague Convention on the Civil Aspects of International Child Abduction opened for signature 25 October 1980 1343 UNTS 89 (entered into force by Japan on 1 April 2014).
The mother seeks open-ended orders permitting her to travel with [X] to Japan at any time. I do not consider that to be in [X]’s best interests at present. It seems to me that it would be preferable for [X] and his mother to settle into the new arrangements for [X] to spend time with his father before giving the mother carte blanche in that way. Although the mother overall has been supportive of [X]’s relationship with his father, there have been occasional incidents mentioned above which suggest that she has not always facilitated that relationship.
Consequently, I consider that [X]’s name should remain on the airport watch list for five years. During that time, the mother can seek the leave of the court to travel. At the end of that time, if he so wishes, the father can seek that the airport watch list order be extended. In the meantime, the mother should return [X]’s passport to be held by the registrar of this court pending further order.
There will be orders accordingly.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 3 February 2015
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
0