SAMPSON and NORTH
[2014] FCWA 75
•25 NOVEMBER 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: SAMPSON and NORTH [2014] FCWA 75
CORAM: DUNCANSON J
HEARD: 18, 19 DECEMBER 2013
19, 20 MAY 2014
DELIVERED : 25 NOVEMBER 2014
FILE NO/S: PTW 1309 of 2013
BETWEEN: MS SAMPSON
Applicant
AND
MR NORTH
Respondent
Catchwords:
CHILDREN - where there is an unacceptable risk of harm to children if they spend unsupervised time with the father - where the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility does not apply by reason of domestic violence - where the benefit, if any, to the children of long term supervised time is considered - where it is ordered that the children spend no time with the father
Legislation:
Family Court Act 1997 (WA), s66, s70A, s89AA
Category: Not Reportable
Representation:
Counsel:
Applicant: Mrs T Farmer
Respondent: Self Represented Litigant
Independent Childrens Lawyer : Ms M Wadsworth
Solicitors:
Applicant: Perth Family Lawyers
Respondent: Self Represented Litigant
Independent Childrens Lawyer : Bannerman Solicitors
Case(s) referred to in judgment(s):
A v A (1998) FLC 92-800
B and B (1993) FLC 92-357
Brown and Pederson (1992) FLC 92-271
Mazorski & Albright [2007] 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
1[Child A] is four years of age and her brother [Child B] is two years of age. The children live with their mother [Ms Sampson]. Their father [Mr North] seeks shared care of the children.
2The proceedings raise serious issues of domestic violence, mental health difficulties and drug use. The Court must consider the evidence very carefully to ensure the orders it makes are in the best interests of the children.
THE ORDERS SOUGHT
3The orders sought by the mother are those contained in a Minute of Orders Sought in her Papers for the Judge. The mother seeks an order that the children live with her and that she have sole parental responsibility for them. She also seeks an order that the father be restrained from removing the children from her care or the care of third parties.
4In her Minute, as to the children’s time with the father, the mother proposed two alternatives:
•time between the children and the father be suspended pending a psychiatric assessment of the father, or
•the children spend time with the father supervised by a professional agency pending completion by the father of drug counselling, anger management and parenting courses as recommended by the Independent Children’s Lawyer.
5However in closing submissions, counsel for the mother submitted there should be an order for “no contact”.
6The orders sought by the father are contained within his Form 1A Response filed 15 July 2013. He seeks to have the children returned to his care and their time be shared equally between each parent. At the commencement of the trial he indicated that the children might live with each party in three or six month blocks. He seeks orders whereby the mother undergoes drug testing, a psychiatric assessment and anger management.
7He seeks an order that the paternal grandmother have access to the children.
8The father also seeks compensation for trauma as a consequence of the children being removed from his care. He did not mention that at trial.
9In his closing submissions the father said he wanted time with the children, at least at weekends, at his home. He said he would not have any more supervised visits. He also said he wanted equal time with the children.
10The children were represented by Ms Wadsworth, the Independent Children’s Lawyer (“the ICL”).
11The ICL indicated at the commencement of the trial that she supported the orders sought by the mother. The only difference in her position was that she did not consider that the children’s time with the father should be suspended pending the psychiatric assessment of him.
12In closing submissions the ICL said she had regard to the Single Expert’s evidence and questioned whether a psychiatric assessment of the father would be of any assistance. It was her view that supervised ‘contact’ fortnightly would be in the children’s best interests but that may not be an option. If supervised ‘contact’ was to take place monthly she was in the Court’s hands as to whether that would benefit the children and questioned whether there should be no contact at all.
THE PARTIES AND THEIR EVIDENCE
13The mother relied on her affidavit filed 4 December 2013 together with that of her mother [Jennifer Sampson], also filed 4 December 2013.
14The father relied on all of his affidavits filed in these proceedings on 5 September 2013, 21 August 2013 and 15 July 2013. He also relied on an affidavit of his mother [Candice Firth] filed 5 September 2013.
15The Court considers the mother gave truthful evidence. The father’s conduct of his case was chaotic and much of the mother’s evidence was not challenged.
16During the course of the father’s cross examination of the mother and during his own evidence the father took the opportunity, using foul language, to berate and abuse the mother who he blamed for removing his children from his care. He was aggressive and angry. He shouted and swore both at the mother and her counsel as described below. At other times he cried. His views were extreme. At times he digressed and spoke at length, for example when explaining his many beliefs which included:
•that the American government uses fighter planes to spray aluminium and other chemicals in the sky over Australia which will cause Alzheimers to our people, all of which is part of Agenda 21 Depopulation, designed to depopulate our own people.
•that most of Australian society has been dumbed down and turned into “complete moron [debt] slaves” since 1929.
•that 9/11 was a conspiracy, done by their own [American] people to turn us into possible terrorists so that they can invade anywhere they want.
•that birth certificates are a bond floated on the New York Stock Exchange.
•that a foreign corporation pretends to be the Australian Government.
•that we are in a silent war being wiped out and replaced with “fresh off the boat (indistinct) voter citizen debt slaves”.
•that fluoride in the water is the number one cause of cancer.
•that doctors are death merchants.
•that he is capable of healing himself and others.
•that he would treat the children’s ear infection by administering drops of colloidal silver which is a powerful method of killing any bacteria.
17Where the evidence of the mother and father differed I preferred that of the mother.
18The maternal grandmother Jennifer Sampson swore an affidavit and gave oral evidence. Although she said she was afraid of the father she left her daughter, then aged 16, in his care. She and the mother did not speak to each other for about five years and the maternal grandmother said the father blocked her from doing so. They have since repaired their relationship.
19The paternal grandmother swore an affidavit and gave oral evidence. She was critical of the mother and described her as bad tempered and abusive to the children when there was no marijuana in the house. She said when she lived in New South Wales the father would ring her and tell her how bad things were in Western Australia. She deposed “He is such a peace loving person and didn’t deserve to be abused”.
20She was clearly supportive of the father and rejected any criticisms of him.
THE SINGLE EXPERT WITNESS
21Mr Cris de Rooster, Clinical Psychologist was appointed Single Expert Witness on 23 August 2013 and provided a report dated 3 December 2013.
22The ICL relied on the terms of that report which were broadly accepted by the mother. The father made it clear during the evidence of the Single Expert that he did not accept the terms of the report.
23The Court considers the Single Expert’s report to be a comprehensive and well-reasoned one. The Court places weight on it and on his oral evidence.
24At the start of the report the Single Expert provided a summary of his assessment of the parties. In relation to the father the Single Expert stated:
This assessment found that the father is controlling and abusive in his relationship with the mother and suffers from overvalued ideas and from a non-bizarre Delusional Disorder. It can be said that the father is anti-establishment or against formal structures in society i.e. he is against paying taxes, against certain laws, against government agencies etc. He believes a group of people and/or the government conduct and development secret warfare (wave/radiation), they attack him at times, have listening devices, people are perpetual slaves etc.
25With respect to the mother the Single Expert stated:
This assessment found the mother experienced psychological problems and adjustment difficulties when growing up with her mother and when in a relationship with the father she experienced psychological problems i.e. depression, suicidal ideation. On her own volition she sought help from [Hospital B] and [Hospital A], received counselling and continues to do so to date. The Single Expert derived the opinion, by reading all of the information and the interviews with the family members that the mother, since leaving the father in March 2013, does not suffer from any psychiatric or psychological problems.
THE ANGLICARE REPORTS
26The father spent time with the children supervised by the Anglicare Children’s Contact Service (“Anglicare”). Anglicare provided two reports, the first dated 13 December 2013. The case coordinator described the visits as happy and relaxed which the children enjoyed. They were characterised by laughter and comfortable and confident interactions.
27However on an occasion when a support worker informed the father he was not to take photographs of the children he ignored the direction and continued to do so.
28He was asked to stop and became aggressive. He grabbed Child B from the support worker and yelled “you can’t take my children from me”.
29The case coordinator described how the father behaved irrationally and said to the support workers “you little ladies are no match for me”. He continued to rant about the mother, believing it was all her fault.
30The case coordinator recommended the father attend the Mums and Dads Forever Programme and suggested eight further supervised visits although acknowledging that the recommendations were a tool to be considered when all other issues for the family had been addressed.
31Anglicare provided a second report dated May 2014. Again the report was positive with respect to the children’s time with the father who was observed to parent the children in a nurturing, positive and constructive manner.
32A review session was conducted with the father on 3 April 2014 to address his inappropriate conversation at times and to notify him of the change of visitation times. Anglicare offered the father a further four supervised visits on a once monthly basis in response to which the father was visibly upset referring to his court orders and using highly inappropriate language towards the case co-ordinator. The case coordinator stated the father had a genuine concern the children would not build a stronger attachment with him if they were to see him once monthly.
33This report also referred to incidents when the father failed to comply with Anglicare’s policy by taking a photograph of the children and making inappropriate comments in their presence.
34The Court refers below to the recommendations of Anglicare when considering the children’s time with the father in the future.
THE SUBPOENAED DOCUMENTS
35Subpoenaed documents from the Western Australia Police and the New South Wales Police were admitted into evidence. The father has the following convictions:
• 20/01/1993 – [Suburb C] Childrens Court – Enter enclosed lands.
• 14/02/1994 – [Suburb H] Childrens Court – Remain on enclosed land – offensive conduct.
• 11/03/1997 – [Suburb B] Local Court – GIC.
• 03/03/1997 – [Suburb K] Local Court – Assault.
• 22/04/1997 – [Suburb N] Local Court – Stealing.
• 05/03/02 – [Suburb Y] Court of Petty Sessions – unlicensed vehicle.
• 12/01/2007 – [Suburb P] Local Court – Assault occasioning actual bodily harm.
• 25/10/10 – [Suburb A] Magistrates Court – Disorderly behaviour in public.
• 25/10/10 – [Suburb A] Magistrates Court – Obstructing public officers.
• 09/09/13 – [Suburb A] Magistrates Court – No authority to drive.
36On 05/12/2007 – the father was acquitted at the [Suburb X] Court on three charges of indecent dealings with a child under 13 and two charges relating to sexual penetration of a child under 13.
37The Incident Reports contain the following information:
•19/03/13 – Police attend to execute recovery order. Police advised the father they were there to recover the children. He refused to engage in conversation with the police. He said they were not taking the children and would have to shoot him. The police forced entry. The father attempted to grab a police officer’s firearm. He struck a police officer and placed him in a headlock. He struck him several times with his fist. The police charged the father with assaulting a public officer.
•15/03/13 –The father hit the mother with his fist to the back of her head causing her to fall to the ground. He kicked her once on the back. The father assaulted one of her friends.
•15/11/12 – The parties had verbal arguments. The father was aggressive to police when they attended.
•16/01/09 – The couple argued regarding house chores. Police spoke to them about the incident.
38At trial the outcome of any charges arising from the incidents in 2013 was not known.
THE FACEBOOK POSTS
39A number of posts from the father’s Facebook page became Exhibit 6. In the posts the father refers to his Family Court proceedings and to his “babies”. Of concern the pages include the following posts on 15 December 2013:
•the father refers to not being allowed to take a photograph of the children saying: “… tht is anglicare fascists breaking common law wit unfair forced contracts they change like undies, bunch of fckn criminals”.
•referring to the removal of the children pursuant to the recovery order, he posted: “Am going insane bottling up this fckn rage”.
•The father also posted: “dun like me? block my facebook, its tht fckn simple. Stop stalkn my page like a fcktard n posting my comments to those u got order frm to keep me away frm my own babies u lied to steal…Stupid fckn slut”.
40Other posts contain the father’s rants about the mother and “having his babies stolen from him”.
41On 3 April 2014 the father posted the following:
“fckn dogs…Cnt see my kids, cnt take pics when do, cnt let grandma see em, cnt even letthm know its coz of theyre fckn retarded slut cunt mother is stopping me n lying about me n teling thm I don’t care or im not theyre dad…U fckn fasvist fckn disgust me..cn only pray us suffer 10fold shit u put gd fathers thru”.
42Further reference is made to the facebook posts below.
THE HEARING
43The trial commenced on 18 December 2013. The father’s behaviour soon became unmanageable despite several requests from the court that he refrain from using foul language and despite warnings regarding his conduct. The mother was cross-examined by the father and kept her composure in extremely difficult circumstances. For example, during that cross-examination the father said the following:
[NORTH, MR]: I will never see them again. All right. I did the same shit with the rest of my kids and I will never have kids again and she can have them. Because it’s all going to be lies and I can’t fucking fight your lies because I’m a big fucking bad man that wants to protect his family. I can’t do this anymore. I can’t fucking do it. They’re all yours, cunt. I don’t know. Fuck it all. This is too stressful for me and this fucking lying cunt – I did nothing wrong to fucking take – for her to take the kids.
She shouldn’t have been allowed to take my children in the first place. I don’t accept this court. I think it’s all a corrupt piece of shit and I’m out, you know. You’re all fucked. I can’t do anything else about it because you’re all fucked. I’m going to fucking take this bit of paper because I’m going to show the kids one day if I ever see them again, which I probably won’t. I will have to wait till their [sic] 18 like my son, just so that he can come home and fuck my missus and destroy my family because I was never there.
44Later during the father’s cross-examination of the mother the following exchange took place:
[NORTH, MR]: And you would tell me that you were going to work. But instead of going to work you would be doing other things?---No. It’s all accounted for.
Okay. Just regarding [T Street] in [Suburb A] [sic] and you were screaming your head off in the bathroom one day calling for mum. And the neighbours called the police. And then I invited the police in the home. Did you or did you not hide from the police?---No. I was screaming because you were being abusive to me. Second of all, you let the police in because they said they would not leave unless they saw that I was okay.
How was I being abusive to you? --- Physically, sexually, emotionally.
What’s the difference between threatening to rape you and forcing you to have sex with me? ---One’s a threat, one’s an action.
Okay. And I raped you, did I? ---Yes. You were very forceful on several occasions.
Say that in my eyes? --- I don’t have to.
Just look at my eyes.
HER HONOUR: No, no. She doesn’t need to.
[NORTH, MR]: No, no. Fuck this.
HER HONOUR: No, no, no. She does not need to.
[NORTH, MR]: Fuck this. She’s calling me a fucking rapist.
HER HONOUR: She did not say that.
[NORTH, MR]: She fucking did.
HER HONOUR: What she said was you raped her. And no, she doesn’t need to look you in the eyes. Now just ask your questions and she will answer them. No. She’s not going to look you in the eyes.
[NORTH, MR]: You’re fucking shitting me. So I kept you in my home for seven years, or by my side as a friend, by forcing you to be with me? And we were never really friends or anything? --- You were very controlling in a lot of ways, and manipulative, and basically I guess what kept me there was fear of leaving, because on several occasions you threatened if I ever left you, you would kill me. And you also said - - -
Same way you did to me? ---No. And you also said that the kids would be taken away, and…
You know, I only thought there was a problem (indistinct) year. If I’m capable of killing you, how come you’re not dead yet?
FARMER, MS: Your Honour, my client can’t possibly answer that question.
45The father continued to use foul and offensive language. He interrupted both counsel and the mother and spoke over them.
46The father was cross-examined by counsel for the mother. She questioned him in a calm and measured way. He referred to the mother as a “crazy bitch” and a “slut”. In answer to counsel’s question he said he thought it was appropriate to call the mother “a shit conditioned whore of Satan”.
47On 19 December 2013 while being questioned about his Facebook posts the following exchange took place:
[Mr North], you have posted things on your Facebook page that have caused [Ms Sampson] to be scared, haven’t you? --- No.
You’ve read her affidavit? … No.
Well, she says on 8 September you posted a status update on Facebook which said – paragraph 31, your Honour:
Can’t wait till God wipes entire planet clean. That fucking cunt, [Ms Sampson], fucked my son, stole our babies and get away with stopping me seeing them in case I tell them of her betrayal and fuck up bullshit. This whole system of disgusting shit needs to go. Stupid ignorant fucked up people everywhere and rewarded for their crimes. It’s all fucked. Please, God, wipe this fuckhole planet clean.
Hallelujah. Like that status.
That’s what you said wasn’t it? --- Yes. I was very very upset. I still feel the same way.
Well --- ? ---But I am forgiving and I am – I’m over the shit and I – I do forgive her and everything else. I just want what’s best for my children.
Well, you went on --- ? ---Right This shit is – is – is ---
[Mr North] – [Mr North], you went on ? – You can go and stalk my Facebook every day. That’s a fucking stalking or harassment or something.
[Mr North] – [Mr North] --? – They’re not allowed.
You have – we’ve established yesterday you have a public Facebook profile? ---It don’t matter. My Facebook is my Facebook.
You went on in relation to that status – no, in relation to that status, you went on talking about [Ms Sampson] saying, “I wish I could harm others. I would so fucking kill that cunt” ---? ---I do. I bloody would.
---“but I can’t”? - I would. I would clean out this whole fucking courtroom, mate.
That’s how you feel about [Ms Sampson], isn’t it? --- I could clean the whole fucking courtroom. I could rip your head off your fucking shoulders, mate, simple as fuck.
48The Court was concerned for the safety of persons in the courtroom following those threats by the father, notwithstanding, he then said that although he could do something he would not. However, he went on to say no one could stop him including the security officer who was present in the court room. The Court adjourned the proceedings. The Court took the unusual step of asking counsel for the mother and the ICL to chambers and told them that in the Court’s view the trial could not safely proceed with the father present in court because of the threats just made and his behaviour overall. Both counsel agreed. Upon resumption the Court informed the father of the terms of that conversation. The mother’s counsel sought an adjournment of the trial, to be resumed with the father attending from an alternative venue by way of video link. The father then apologised for his outburst.
49The Court made the orders sought by counsel and the father then called everyone in the Court “a bunch of fucking criminals” and “a bunch of fucking dogs”.
50The father’s behaviour was not provoked in any way by counsel. The mother’s counsel conducted herself appropriately and cross examined the father in what were very difficult circumstances. She did not set out to provoke the father. Instead she properly put her client’s case to him and challenged his evidence. The father showed no remorse for his actions in Court and no insight as to his conduct. He subsequently posted the following on facebook:
her lawyer kept pushin tht i was big bad man, if i was such big bad could rip all the fckn heads off n shit down thier necks. Ofc im not , but ofc they play victims n adjourn where I cn only get video link etc. Lvl of fear shit conditioning iz fckn horrendous, these cunts making unlawful judgments n destroying my life n im sposed to smile n be happy about it. Cnt w8 till they die of worse fckn cancers will witness n laugh at tht shiz n thank god even moreso. Fact is i harm none tht dont harm me n even thn most get away wit it scot free cos if i raise my voice or get upset im aggressive etc fckn dirty whore cunts thank god u will burn in ur own hell.. Fact u use this shit against me shows ur fckd lvl of fear shit conditioning.. Mayb u learn something stalkn my fb but ofc will only see what u want coz inbred fcktard criminals.
51The trial resumed on 19 May 2014 for a further two days. The father attended from the Supreme Court by way of video link up.
52On 14 May 2014, prior to the commencement of the trial, the mother’s solicitors, wrote to the Court informing the Court that they had significant safety concerns for their client, the solicitors and counsel, as a consequence of comments posted by the father on his Facebook page. On 3 April 2014 the father posted the following:
If someone could blow up the fam court, supreme court all magistrates courts n hang or spear any fckrs runnin out of thm, tht b gr8 thx. Trully it nds to happen. These fckrs r killing us, destroying our families n lining own pockets wit foreign power printed fakeass ‘money’. Ur seriously fckn retarded if u don’t see same shiz.
53On 12 May 2014 he posted the following:
When all u wan do is hang urself front of family court wit ‘family court corrupt’ tshirt or source some tnt n blow the fckr up. Juz gotta thank GoOD daily to wipe out fascist statist satanists wit thier slowdeath n self created hell. Think they doing gd till they try to leave their cell. Perpetual debt slavery n self depopulation, ignorantly miserable at thier fckd up self creation. Yea I get some thoughts, but all I do is gd, actions or inactions, laying treasures in my heart. My life is awesome but my children get fcked up by braindead social tarts. Trying to b positive in a shitful deadend slave farming system of shit, so everything is ok, n no one minds one bit…well at least, till fan is covered in shit.
54The father’s conduct throughout the adjourned hearing did not improve. His foul language and threats were unrelenting.
55Counsel for the mother asked the father about posts he had made on his Facebook since the last day of trial. He again accused counsel of stalking his Facebook. He was asked to answer the questions and he replied as follows:
HER HONOUR: [Mr North], please answer the --- ? --- If you’re going to – the thing is, like ---
[Mr North], please answer Ms Farmer’s question about your Facebook page? ---So how would you feel if your partner (indistinct) with one of your children? You kicked them out and then lied to the courts and police to have them bash in your door and beating you and kidnap your children without even checking validity of claims. I want to go off my head but I have to suppress it because, you know, that’s negative. I am boiling inside, managing this anger in many different ways but powerless and frustrated as dumb shit (indistinct) slaves believe the lies of a single mother shit-conditioned whore over a protective father that won’t take her shit anymore. I can post whatever the fuck I like on my Facebook. If you don’t like it, don’t look at it.
56The Court warned the father on more than one occasion that if he continued to use foul language the Court would switch on the mute button so that he could no longer be heard.
57He called counsel a bitch. He described everyone as “a bunch of fucking scummy criminals”.
58The father was asked about the post referred to at paragraph 51 above.
59The father responded: –
---I – I wish I had the balls to do it because you fuckers all need to die. Seriously. You’re fucking stealing people’s kids without getting anybody any evidence. Nothing at all. And you’re going and stealing and destroying families for a few dollars more. I think – I can’t wait to the day that this fucking city and your scamming little courts all get blown to shithouse. Yes. I can’t wait.
60When asked about a post on 12 May 2014 referring to “Dad’s commit suicide and kids lives are fucked” the father responded:
[Mr North], I asked you a question. Are you, in that post, threatening to commit suicide? ---No. I am talking about what fathers do. Fathers every day commit suicide. There’s plenty of them every single day committing suicide because of the Family Court, because of these unlawful fucking statutes and Acts forced on the people, destroying the children, destroying the homes, taking their houses. I know plenty of blokes now that have – thanks to this shit – that have lost their houses, lost their lives, lost everything because you people destroying them and doing fuck all about justice. You’re perverting the course of justice. You’ve perverted the Australian Constitution and you’re all breaking the law.
61The mother’s counsel explained the mother’s application to the father. The explanation and his response is as follows:
FARMER, MS: [Mr North], [Ms Sampson’s] application to this court is that the children should not be returned to your care and that you should not be seeing the children. If the court makes those orders, will you obey? --- And that’s parental alienation, mate. And that’s it. If the court makes those orders, that’s it. I’ve just got to walk away, say goodbye to another two kids. That will make seven children now that I’ve been used for. All right? And I have never fucking done anything to lose them, so you can get fucked the whole fucking lot of you. You’re all sluts and cunts and fucking idiots. Take the fucking kids. Keep them. I don’t fucking care. You fucking want to steal my fucking children. I will just turn into a fucking hard cunt, mate.
62The Anglicare report was put to the father. He referred to Anglicare workers as “fucking criminals” and to the mother’s counsel as “a fucking idiot”.
63The father continued to use foul language when questioned by the ICL.
64The father interrupted the mother’s counsel on several occasions when she cross-examined the paternal grandmother.
65The proceedings continued on 20 May 2014 with evidence from the Single Expert. The father interrupted the Single Expert often despite being told not to do so. The father referred to the Single Expert as a “joker” and a “phony”. He called the Single Expert “a fucking idiot”. He accused him of being biased and questioned his qualifications.
66When the Single Expert was questioned by the ICL about the benefit, if any, to the children of spending time with the father for two hours a month, supervised, the father interrupted the questioning and said “Yes. Hope you die of the worst fucking cancer, cunt”.
67After several disruptions the Court activated the mute button so that the father could hear the proceedings but could not interrupt them.
68The trial was conducted in the most difficult circumstances by reason of the father’s conduct, threats and appalling language. Both the ICL and counsel for the mother conducted themselves properly throughout and are to be commended for their perseverance and tolerance. An order sought by the mother was that the children spend no time with the father. In these circumstances it was important that the relevant evidence be provided to the court and properly tested by cross-examination to ensure that the Court is able to determine all issues and make orders which are in the best interests of the children. It was also important that the Court not allow the father to distract it from those issues.
HISTORY
69In these reasons, statements of fact represent the Court’s findings in fact, unless otherwise stated.
70The father was born on 11 July 1977 and is currently aged 37 years. The mother was born 28 November 1991 and is aged 22 years.
71In 1994 the father was in a relationship with [Ms Barron] and they have one child, [Alex] who is currently about 17 years of age.
72In 1996 the father was in a relationship with [Ms Perkins]. They have a child, with whom the father has no relationship.
73In 1998 the father was in relationship with [Ms Eaton]. He and Ms Eaton had three children, aged twelve, ten and nine respectively. The father has no relationship with these children. Ms Eaton had three other children who lived with them as part of the family.
74In 2001 the father was assessed by the Department of Community Services (NSW) as causing significant harm to two former step children, physical harm to one and emotional harm to the other.
75In 2006 the father was charged with offences relating to the sexual penetration and indecent dealings with a child under the age of 13 years, one of his former step children. He was acquitted of the charges on 5 December 2007.
76In January 2007 the father was convicted of assault occasioning bodily harm.
77The parties commenced living in the same house in 2007 when the mother was aged 15 years.
78The mother’s mother took the father into her home as a boarder after meeting him through an on-line dating service.
79In August 2007 the mother, then aged 16 years, became pregnant by the father. They lived together in a rental property in Suburb A. The pregnancy was terminated. The mother suffered the mental health difficulties to which I refer below. The father was very controlling of her. She did not speak to her mother for about five years after that.
80In January 2009 the police attended the Suburb A home having been called by concerned neighbours after an argument between the parties.
81On 15 April 2010 Child A was born.
82On 19 April 2010 a safety plan was put in place by the Department of Child Protection (“the DCP”) (as it then was) specifying that the father was to have no unsupervised contact with Child A and was not to change her nappies, bathe or dress her. The parties signed the plan “under duress”. On 25 October 2010 the father was convicted of disorderly conduct in public and obstructing a public officer.
83On 20 March 2012 Child B was born.
84The father’s son Alex came to live with the parties. On 14 March 2013 the father accused the mother of having sexual intercourse with Alex. On that date he assaulted her and the parties separated when the mother left the home without the children.
85On 15 March 2013 the mother returned to the home to collect her belongings. The father assaulted her.
86On 18 March 2013 the mother commenced these proceedings and an order was made for the recovery of Child A and Child B into her care. The father assaulted police officers when the recovery order was executed.
87On 15 April 2013 the mother obtained a final violence restraining order against the father.
88On 2 May 2013 the mother filed a Form 4 Notice of Abuse. On 17 July 2013 the DCP provided its report.
89Under the heading “Assessment and Considerations” the report stated as follows:
Based on the information obtained from the Department’s assessment in relation to the current concerns raised, the Department does not have sufficient evidence to substantiate that [Child A] or [Child B] have suffered or are likely to suffer significant harm. [Child A] and [Child B] are currently in the care of [Ms Sampson] and the Department has not observed any concerns in relation to [Ms Sampson’s] care of the children.
Although the Department is not substantiating harm or likelihood of harm to [Child A] and [Child B] at this time, there is sufficient information from [Mr North’s] extensive history with the Department which support concerns regarding [Mr North’s] capacity to provide appropriate parenting for the children in his care.
90In 2013 the mother registered the children’s surnames as Sampson.
91On 23 June 2013 the mother commenced further education at TAFE. The children attend daycare.
92On 23 August 2013 an order was made that the children spend supervised time with the father. The children commenced spending time with the father on 12 October 2013 with the visits supervised by Anglicare. By the time of the adjourned trial on 19 May 2014, 15 visits had taken place.
THE LAW
93These proceedings are determined under Part 5 of the Family Court Act1997 (WA) (“the Act”). In reaching its decision the Court will be guided by the objects of that Part and the principles underlying those objects.
94Section 66 sets out the objects and the principles underlying them.
95The objects 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.
96The 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).
97In deciding whether to make a particular parenting order, s 66A directs the Court to regard the best interests of the child as the paramount consideration. Section 66C sets out how the Court determines what is in a child’s best interests. The Court must consider the matters set out in sub-s (2) and (3) being the primary considerations and the additional considerations respectively. Section 66C(4) provides that 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 the Court must have regard in particular, to events that have happened and circumstances that have existed, since separation occurred.
98These proceedings commenced prior to the introduction of the Family Court Amendment (Family Violence and Other Measures) Act 2013 and having regard to the transitional provisions the amendments to the Act do not apply in this case. The Court therefore refers to the provisions under s 66C as they were prior to the amendments.
99Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child.
100Equal shared parental responsibility imposes an obligation upon them to consult as to major long term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
101Pursuant to s 89AA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time failing which substantial and significant time with each parent would be in the child’s best interests and reasonably practicable.
102The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which 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.
103For the purpose of these proceedings “family violence” means:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety
104Central to these proceedings is the issue of family violence perpetrated by the father upon the mother to which the children have been exposed.
105In the context of allegations of sexual abuse, principles have been developed which deal with issues of unacceptable risk. These principles are applicable to all allegations of risk of harm, including the risk of family violence. (A v A (1998) FLC 92-800).
106In B and B (1993) FLC 92-357 at 79,778, the Full Court referred to these principles as follows:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse” (FLC 77,081).
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pederson (1992) FLC 92-271.
107In A v A (supra) the Full Court said at 84,996:
Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
108The mother’s position was that the children were at risk of harm if they spend any time with the father. The father’s position was that he would not have any more supervised time with them. The ICL’s position was that the children were at risk of harm if they spent unsupervised time with the father and she questioned the benefit to the children of infrequent supervised time.
109The Court considers what orders will promote the best interests of Child A and Child B and does so by considering the evidence in the context of the primary and additional considerations as set out in s 66C.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
110A meaningful relationship has been interpreted as one which is “important, significant and valuable” to the child (Mazorski & Albright [2007] 37 Fam LR 518). The children’s relationship with the mother is a meaningful one and it is to their benefit that it continue.
111It appears that the father is able to behave responsibly in the presence of the children and is capable of interacting with them in an appropriate way. That is clear from both of the Anglicare reports.
112It is also clear from the Anglicare reports that he has behaved inappropriately in front of the children and reacted aggressively when his conduct was reviewed by workers. To others he has consistently denigrated the mother. The father’s conduct, mental health and drug use puts into question whether he is capable of having a relationship with the children which would be meaningful to them. The father’s views and thought patterns relating to how he perceives the world were described by the Single Expert as difficult to follow, far-fetched and irrational and not capable of change.
113For reasons referred to below, the Court is of the view that the father poses an unacceptable risk of harm to the children if they spend unsupervised time with him. Monthly visits of two hours in a supervised setting may be enjoyable for the children but cannot be described as a meaningful involvement in their lives or constitute a meaningful relationship. This must be balanced against the impact such an order will have on the children’s relationship with the mother given the father’s attitude towards her.
114It is also necessary to consider whether any benefit to the children of having a relationship with the father is outweighed by the risk to them of any physical or psychological harm.
The need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence
115This consideration is pivotal to the circumstances of Child A and Child B. The children are not at risk of harm in the care of the mother provided she continues to act protectively of them and there is no suggestion she will not. The father asserts that the mother has mental health difficulties, that she screamed at the children and could not cope with them. The mother denied these assertions. The Court prefers the mother’s evidence in this respect.
116As a child the mother engaged in self harming but has not done so since the birth of Child A. She became depressed following the termination of her pregnancy and as a consequence attended counselling and was admitted to the [Adolescent Unit A] on a voluntary basis for one night. She was discharged on 24 June 2009 and her discharge letter confirmed she had no on-going self-harm or ideals about suicide. She attended counselling through the Child and Adolescent Area Mental Health Services until prior to her 18th birthday.
117The mother used cannabis during the relationship but ceased doing so in February 2013.
118In relation to the mother’s mental health difficulties the Single Expert examined her history in some detail and reported on it as follows:
The risks/protective factors for the mother’s parenting are accentuated in bold. It is clear the mother’s mental illness is her mood disorder (depression) and this is mild. It is very important to understand the mother’s depression and suicidal ideation in the context of what occurred in her history i.e. the mother seemed to experience some psychological difficulties whilst growing up in her early teenage years with her mother and sister and reacted with self-harm and suicidal ideation. When she was 15/16 she developed a relationship with the father who was 30. Soon after she fell pregnant and decided on an abortion. This was soon followed by her mother abandoning her, the father and her smoked cannabis and according to the mother’s mother the father was controlling and influenced her with his beliefs, was controlling over her and kept her reasonably isolated. I also came to the same conclusion. There was domestic violence in this relationship and she had two children at a young age. She was furthering her education, was working and her partner didn’t work. These factors would have influenced the mother’s psychological well-being in a detrimental manner resulting in feelings of depression, anger, anxiety, distress. In my clinical experience this is a common reaction for young mothers finding themselves in similar situations.
The above paragraph provides a brief overview what the mother endured at a young age. Her depression, suicidal ideation should be seen in this context. Since she has left her partner in March 2013 she said she is feeling better and coping well. She is still medicated with antidepressants, is not suicidal and does not self-harm. In my opinion she is managing very well given her situation.
119The mother said the father had been verbally, physically and emotionally abusive throughout the relationship. The children have been present when he has been violent towards her. He called her names using foul language in the presence of the children. He was extremely possessive, accusing her of “only going to work to have sex with other people”. The police have been called to the home on occasions. The father assaulted the mother in the presence of the children. In September 2012 he backhanded her causing her to fall off the chair and then removed a towel from her shoulders and whipped her with it.
120In early 2013 he accused her of hiding money from him, he grabbed her handbag breaking it. He kicked her causing her to fall. He lowered his knee down onto her chest winding her.
121When the mother was pregnant with Child B the father assaulted her by hitting her in the stomach, grabbing her by the hair and banging her head on the ground.
122He forced her to have sex against her will. He threatened to kill her. The father said to her “if you ever leave karma will get you just like [Ms Eaton]”. Ms Eaton is his former partner who is now permanently in a wheelchair.
123The father posted comments on Facebook referring to killing her.
124In early March 2013 he accused her of having sex with other people. He pushed her against a cabinet and held a knife to her. She feared he was going to use it to hurt her.
125At paragraph 32 of her affidavit the mother deposed:
[Mr North] also commented on this status, about wanting to kill me. I have underlined this section. [Mr North] wrote the following:
“yes, [Ms Sampson], fckd my 16yo, I kicked her out, she tried to steal babies with friends, when I stopped her, she thn lied to police n courts to steal babies, I have not sn thm since march 19 n she getn away with it. I cnt sleep, I cnt get over this, I wish I could harm others, I would so fckn kill tht cunt, but I cnt. Im sposed to forgive, how to forgive tht? She destroying our lives daily, continueing to doso, dirty fckn whores should be stoned, but in the west, they rewarded. I want some fkcn justice, I need to see my children. Whole fckn system fckd, sincerely pray for her to sugfer the worst possible death imaginable….Wont let me comment again. I did try push charges but pigs don’t care cos he was 16. Facebook msgs n my affidavit not gd enough. Satanist statist inbred cunts they are at [Suburb A] police station”. [sic].
126The Single Expert reported that the father acknowledged he used cannabis daily depending on whether he could afford it.
127The father denied many of the mother’s allegations but the Court accepts the mother’s evidence. The father’s behaviour in Court, his language and threats were consistent with the mother’s description of his behaviour. The Single Expert reported that given the father’s history of cannabis and psychological well-being it is possible for him to behave as the mother stated.
128The mother’s counsel asked the father about the circumstances of the police executing the recovery order which they did by force.
FARMER, MS: [Mr North], the police go on in their incident report to say that you opened the bedroom door partially, using the bed inside the room to prevent it from being opened fully; is that right? ---I opened it to talk to them, yes.
Yes? ---To tell them to go away. And I was trying to talk to them, I was trying to stay calm. I was trying to be, you know, good for the kids. I didn’t want them to take my babies.
Okay. And they say two small children were sighted inside the room on a bed near the door. And you shouted abuse and reached through the opening, attempting to grab hold of [PC Downing’s] firearm. And I think you told us yesterday that you considered that? ---I considered it, yes.
Yes. And did you try and reach in the direction of his firearm? ---No.
No? ---No.
You didn’t reach in the direction of his firearm? ---No, I didn’t try. If I had have tried, I would have got it, shot them all in the fucking head. The blood would have gone up on the walls, and I just pictured my babies seeing that. And I just went – fucking – then I just went down, you know, like ---
Right. They then go on to say that you’ve struck out at [PC Downing’s] with a left fist; is that right? ---Whatever. So now I didn’t hit him? Because I only threw one punch, mate, and it connected with that one copper that was charging at me. There was four of them charging at me at the door. And they were – the one at the – I picked the biggest male; all right? There were two females and two males standing at the front of the door, and they were charging at me. And I just picked the oldest guy, the biggest male, which wasn’t the one that I apparently went for the gun of.
129When the children were recovered by the police they were unwashed, wearing dirty nappies and Child A was crying. Child B’s tooth had been chipped. The mother was concerned that this had happened as a result of something the father had done while they were in his care. She described how he used to throw the children on the bed roughly when they cried.
130The Single Expert reported as follows:
As a clinical psychologist I can only say that placing the children with the father will cause behavioural and emotional difficulties for the children. The reason for this statement is:
• The father has marginalised himself from society due to his views, perceptions and behaviour towards the world around him. He seems isolated from mainstream society and opposes mainstream thinking, behaviours and social process of society. The children will be exposed to this and model on these behaviours.
• The father perceives and interprets the world with overvalued ideas and delusional thinking.
• The father can get aggressive and emotionally abusive in the presence of the children. He will also influence the children against the mother due to his beliefs.
• The father has been found by DCP to be a risk to parent children, i.e. concerns for physical, emotional and sexual abuse were raised by DCP.
• I have concerns that the father has no relationship with any of his children or step children from his previous relationships. I question as to the reasons for this. Some of the reasons for this lies in the above four points just mentioned.
131The father demonstrated a complete lack of self control in the courtroom. He quickly changed from being angry, aggressive and threatening to tearful and distressed. When he spoke of the children he became upset. When he spoke of the mother he was angry and threatening. There was no indication of any improvement in his behaviour, which is consistent with the Single Expert’s view that he cannot change.
132The Court accepts the father behaved in the way described by the mother during their relationship and in the presence of the children. Although he demonstrated appropriate care of the children when supervised, he also reacted badly to authority in the presence of the children.
133The father was obsessive about the mother and proprietorial about the children.
134The Court finds there is a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence if they spend time with the father on an unsupervised basis. He poses an unacceptable risk of harm to them if they spend unsupervised time with him.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
135The children are too young to express any meaningful views.
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)
136The children have a close and loving relationship with the mother.
137The Anglicare support worker observed the children as physically affectionate towards the father and him reciprocating and the children clearly enjoying the visits. The father’s relationship with the children is limited to two hour visits at the Anglicare supervision centre.
138The positive aspects of the children’s relationship with the father are those described in the Anglicare report. Under the heading “Transitions and Initial Greetings” the supervisor reported “transitions and initial greetings have been typically characterised by [Child A] running to Dad yelling “daddy, daddy!” and both children reaching up to be picked up by [Mr North] for short hugs and kisses”.
139Included in positive comments by the supervisor were the following:
•[Mr North] was largely observed to engage in age-appropriate and positive conversation with [Child B] and [Child A] during contact;
•[Mr North], throughout visits, makes time to engage with both the children together and individually;
•Physical contact between [Mr North], [Child A] and [Child B] has been noted to be appropriate, spontaneous and free flowing with equal initiation of contact between both children and their father;
•[Mr North] appears comfortable in his parenting capacity. [Mr North] was observed to parent [Child A] and [Child B] in a nurturing, positive and constructive manner.
140The Court does not doubt the father loves the children intensely but the positive aspects of his relationship with them are negated by the risk he poses to them by reason of his conduct, his beliefs and his attitude towards the mother from which he is incapable of shielding the children.
141The children’s relationship with the maternal grandmother and aunt are developing. It is unlikely they will have an opportunity to develop a relationship with the paternal grandmother if they do not spend time with the father or if that time is supervised.
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
142During the parties’ relationship the children were cared for by both of them. Since the recovery order was executed in March 2013 the children have been solely cared for by the mother. They have spent brief, infrequent periods of supervised time with the father. The Court finds it would be in the best interests of the children to remain in their mother’s care as she provides them with stability and security. It would have a detrimental effect upon them to be separated from her.
143Although the children are separated from the father that must be viewed in the context of the risk he poses to them as set out above.
144The Single Expert was asked about the children spending unsupervised time with the father. He said such contact would have a detrimental effect upon the mother. She had been under the control of the father, she could not stand up to him and from a domestic violence perspective it would be re-victimising the mother. Unsupervised time would impact upon both the mother and the children.
145If an order is made that the children spend no time with the father they will be denied the opportunity of an enjoyable two hours with him once or possibly twice each month and lose their connection with their father but their stability and well-being will otherwise be unchanged.
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
146There is practical difficulty and expense in the children spending time and communicating with the father. At trial the children were spending time with the father supervised by Anglicare. Anglicare had offered only 4 further supervised visits on a once monthly basis. Anglicare also offered fortnightly supported contact between the children and the father but only while he undertook various programs recommended by them.
147The report then states that upon completion of the recommendations Anglicare are willing to explore the possibility of facilitating changeovers through the use of their service.
148It appears the case coordinator envisaged a move to unsupervised time with supervised handovers. The recommendations are based solely upon the family’s interaction with the children’s contact service including the observation of supervised visits, comments made by the parties and meetings and discussions which have taken place with the case manager.
149The case coordinator acknowledges that it is possible that there are further factors regarding the family that are not available to the service and that the service does not predict how contact between the children and the father will occur without supervision. Their recommendations are to be considered only when all other issues with the family have been addressed.
150‘Further factors’ acknowledged by the case coordinator in the report clearly do exist, specifically the Court’s findings as to the risk the father poses to the children and the findings with respect to the other considerations.
151There is no question of the children spending unsupervised time with the father now or in the foreseeable future. This would place them at an unacceptable risk of harm. The father is not capable of change. The risk will not therefore become an acceptable one. It is necessary therefore to look at the practicality of indefinite supervision.
152There was no evidence that Anglicare offered supervised visits indefinitely and it is unlikely the father would cooperate given his stated position that he would not accept supervision. The father said:
[NORTH, MR]: I don’t want any more time supervised, period.
WADSWORTH, MS: And if - - -
[NORTH, MR]: I do not – I am not going to have any more time supervised. If I can’t see my kids, that’s it. It’s over. I’m going to forget they exist and leave the country.
153There is therefore considerable practical difficulty and expense of the children spending time with and communicating with the father and that will affect their right to maintain personal relations and direct contact with him.
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;
154The Single Expert said the mother is reluctant to promote the relationship between the children and the father as she has been exposed to his control, aggression, opposing views of the establishment and paranoia. She is fearful of him, however she will comply with court orders.
155Although the mother’s case was that the children should spend no time with the father by reason of the risk he poses to them. The Court considers she would comply with orders. The father is not willing and able to facilitate and encourage a close and continuing relationship between the children and the mother.
156He has threatened and assaulted her. He has nothing positive to say about her. He has spoken inappropriately about her in the presence of the children during supervised visits. His anger towards her is all consuming and he is unable to acknowledge her role as the primary carer of the children. The Single Expert reported that he did not think the father will willingly promote, or out of his own volition, promote a relationship between the children and the mother
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
157The mother is able to provide for the children on all levels.
158The Single Expert stated “I formed the view that the mother has the capacity to recognise and provide adequately for the children’s physical, emotional and educational needs”. In particular the Single Expert said “A positive aspect of the mother’s parenting is that she sets boundaries, provides a safe and consistent environment where the children’s emotional needs are met”. The Court agrees with the Single Expert’s view.
159The Single Expert reported the father has some limitations in some of his capacity to recognise and provide adequately for the children’s physical, social and emotional needs.
160As to the positive aspects the Single Expert reported the father has the capacity to provide a home environment which meets the physical needs of the children when during the home visits he observed the children’s bedrooms which were appropriately decorated. He also observed the father being particular and conscious concerning the children’s food and drink. However he went on to report the following concerns:
The father had the children in his care from 14 to 19 March before the police removed the children. The subpoena incident report from the police on 19/3/13 reads that the baby boy was unwashed and wearing a dirty nappy. The girl was crying, unwashed and wearing dirty pink pyjamas. The mother told me that [Child B’s] tooth was chipped during this time and there was no explanation as to why. The subpoena of the DCP NSW-2000, page 3 interaction report it states that [Mr North] (the father) yelled and smacked the baby and threatened to shove a bottle up his arse. [Mr North] was assessed as inappropriate in his parenting style and beliefs and reported suffering from a psychiatric illness and not taking his medication.
The above available information raises concerns for the father’s parenting and physical care of the children.
161As to the father’s ability to provide for the children’s emotional needs the Single Expert reported the following positive interactions which he observed between the father and the children as follows:
•He spoke to and interacted with the children in a positive tone with emotional warmth.
•He was attentive, supportive, reassuring and allowed them appropriate independence.
•He was affectionate and made physical and emotional contact with the children and the children with him.
•They communicated clearly in age appropriate language and were respectful to each other. He allowed the children to voice their needs.
•He exposes the children to his mother and her partner. He says he has friends with children and therefore could expose the children to his friends’ children.
162The Single Expert went on to say:
I observed and heard the father openly voice his critique of the mother in the presence of the children. This is of concern in terms of meeting the emotional needs of the children in particular to develop their emotional relationship with the mother.
163The limitations referred to by the Single Expert are best explained by him as set out in paragraph 130 above.
164The Court has significant concerns about the capacity of the father to provide for the children’s emotional needs. He behaved violently when the recovery order was executed. He denigrated the mother to both the Anglicare support workers and the Single Expert in the presence of the children. He showed no insight as to the likely impact of his behaviour upon the children. The Single Expert explained if his beliefs are challenged he becomes aggressive. The Single Expert also said the father’s excessive use of cannabis enhances his delusional thinking which will influence his parenting capacity.
165The Single Expert said in his oral evidence that the father’s thought processes and beliefs about the mother and society interfere with the father’s parenting and in that way the positive things are eroded by his behaviour.
166The Single Expert reported that the father can provide for most of the intellectual needs and intellectual development of the children. He referred to the father’s wish that the children be home schooled and went on to say:
The father views of the world are different from most people, his thoughts can be strange, has overvalued ideas and delusional thinking. His perceptions and beliefs of some aspects of his world are delusional. These beliefs, perceptions and his behaviour will influence the children’s intellectual, emotional and psychosocial development.
167The Court finds the father’s capacity to provide for the children’s needs, including their emotional and intellectual needs is severely compromised for the reasons set out above.
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;
168The children are very young, Child A is just four and Child B two years of age. As they get older they will be more susceptible to the father’s extreme views.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
169The mother demonstrates an appropriate attitude to the children and to the responsibilities of parenthood.
170The mother currently enjoys a stable environment and a network of family and friends which enables her to provide well for the children. Her capacity to do so is no longer jeopardised by the father’s violent behaviour towards her.
171The father has not cared for the children since they were removed from his care on 19 March 2013. He uses cannabis excessively. He does not pay child support.
Any family violence involving the child or a member of the child’s family
172The Court has referred to the incidents of family violence above.
173The children are not exposed to any family violence at this time.
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
174The mother obtained a Violence Restraining Order against the father protecting her and the children on 21 March 2013. The order expires on 16 April 2015.
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
175It is desirable to make final orders so the children do not continue to be the subject of litigation between the parties. It would be beneficial to the mother and the children for the proceedings to be concluded.
Any other fact or circumstance that the Court considers relevant
176One of the matters addressed by the Single Expert was whether any person would benefit from or require further psychological evaluation.
177The Single Expert reported as follows:
The only person who could possibly be referred for a psychiatric assessment is the father. However, I do not believe he will benefit from such an assessment as the father’s beliefs (overvalued ideas and delusional thinking) are ingrained and unlikely to change. He shows little or no insight into his behaviour and at times shows poor judgement. The father will strongly argue and reason that his thinking is accurate and supported by what he diligently researched and he will act accordingly. The father does not believe there is anything strange in his thinking or behaviour and acts accordingly to his beliefs, therefore he feels there is nothing wrong with him as he is questioning what is wrong is society and its structures. I am of the view that the father will not benefit by consulting with a Clinical Psychologist for the same reasons as listed here.
178It is a very serious matter to make an order that a parent may spend no time with a child. For that reason the Court explored the issue with the Single Expert pointing out the tension between positive aspects of the father’s time with the children and those positives being undermined by the father’s attitude towards the mother. The Court asked if psychiatric or psychological help would assist the father.
179The Single Expert explained the father’s thought processes which he described as not capable of change. In a rather chilling explanation he recalled his psychiatric training and being cautioned against confronting a person with delusion. The Single Expert said one can try and medicate but cannot change a fixed thought. He said a person looks normal as long as you don’t touch on that delusional thought process.
180The Single Expert said:
THE WITNESS: Once you touch it you get an explosion of emotion and thoughts and ideas which are (indistinct) then from the client’s perspective (indistinct) need to be confronted, and if you stand in the way – and, of course, sometimes it’s going to be fatal, not in this matter, but we’re talking about dangerousness, then, on the other end of the scale. You cannot reason. If you do reason, you get a flurry of emotive, aggressive thought processes, a rambling of ideas and you can’t stop it, so the client can’t stop it, and it depends, of course, how it presents in each client. So with this father we have certain ideas about a world, they should be homeschooled, we must have natural births, we will do it ourselves and wouldn’t go and look for help. If it wasn’t for the mum they would just (indistinct) there.
181The father described this as “Bullshit”. The Court however is mindful of the caution contained in the Single Expert’s explanation.
182The Court accepts the Single Expert’s view that the father will not benefit from consulting with a clinical psychologist.
SECTION 60CC (4) AND (5)
183The mother has been solely responsible for the decision making and care of the children since the parties separated. The children’s time with the father has been limited to supervised visits. He has not participated in the decision making for the children, he has spent time with them as permitted and has not otherwise communicated with them. He has not had the opportunity to do these things as a consequence of his conduct. The mother has acted protectively of the children. It is the father’s own behaviour which has excluded him from participating in the children’s upbringing.
CONCLUSIONS
184Having considered the evidence in the context of the primary and additional considerations the Court has come to the following conclusions.
Parental Responsibility
185There has been family violence between the parties. In those circumstances the presumption that it is in the best interests of Child A and Child B that their parents have equal shared parental responsibility does not apply.
186The Court intends to make an order that the mother have sole parental responsibility for the children. The Court is satisfied she is well placed to make decisions about the major long term issues regarding the children.
Living arrangements
187The Court intends to make an order that the children live with the mother. They have been solely in the care of the mother since separation. They are well looked after by her. It would be in their best interests that the stability and security of their current living arrangements continues. The children are at risk of harm in the care of the father as set out above.
Time spent
188Any time the children spend with the father would have to be supervised to ensure the safety and well-being of the children and to protect them from harm. There are also risks associated with supervised time having regard to the father’s lack of self‑control during supervised visits.
189During the course of these proceedings the father was unable to control his anger. He lacked insight as to the effect his behaviour was likely to have on the children and on the mother’s parenting of them.
190It is a very serious matter for a court to make an order that a child spends no time with a parent. In considering whether to make such an order the Court has balanced the relevant factors to which it has referred above. The scales weigh heavily in favour of making such an order.
191On one hand is the possibility of the children continuing to spend supervised time with the father. The only positive aspect of that is the children’s enjoyment of two hours each month in an environment strictly supervised by an independent agency.
192On the other hand the Court has found that the children’s relationship with the father is not a meaningful one and as such will not be of benefit to them in the future. The children are at risk of both physical and psychological harm in the care of the father. His unrelenting denigration, criticism and vitriol towards the mother could undermine the children’s relationship with her and impact upon her parenting of the children in the future.
193It is therefore necessary to look at the benefits to the children of indefinite supervised time.
194In Moose & Moose (2008) FLC 93-375 the Full Court considered long-term supervision. May J stated: “In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately there would need to be cogent reasons to support such orders”.
195The only cogent reason for an order for indefinite supervision would be that it would be to the benefit of the children to have an on-going relationship with the father but that supervision was necessary to protect them from risk of harm in his care. If the father poses such a risk to the children it puts in question the benefit that the children will derive from that relationship.
196The children have enjoyed visits with their father in a supervised environment. The benefit to the children is minimal and especially so when balanced with the father’s attitude towards the mother and its impact upon her, as described by the Single Expert.
197Given the limited benefit to the children of short periods of supervised time and the potential damage to other aspects of their lives essential to their well-being, the Court has concluded it must make an order that the children spend no time with the father. This is not a decision which the Court has come to lightly because it deprives the children of any relationship at all with the father. The Court is satisfied, having balanced the relevant factors, that such an order is in the best interests of the children.
THE ORDERS
198The Court makes the following orders:
1.All previous parenting orders be discharged.
2.The children [Child A] born 2010 and [Child B] born 2012 (“the children”) live with the mother [Ms Sampson].
3.The mother have sole parental responsibility for the children.
4.The children spend no time with the father [Mr North].
5.The father be restrained by injunction from removing the children from the care and control of the mother, including from school or other institution, or third party in whose care the children may be placed.
6.The appointment of the Independent Children’s Lawyer is discharged.
7.The subpoenaed documents be returned to source.
8.The Application and Response be otherwise dismissed.
I certify that the preceding [198] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
0
0