Scranton and Scranton
[2010] FMCAfam 1160
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCRANTON & SCRANTON | [2010] FMCAfam 1160 |
| FAMILY LAW – Parenting – sole parental responsibility – impact of the father’s Obsessive Compulsive Personality Disorder (“OCPD”) – whether father’s time ought be supervised – impact upon the mother’s parenting capacity of an order for unsupervised time with the children and their father. |
| Family Law Act 1975 (Cth), ss.61DA, 60CC (2), (3) & (4) |
| Applicant: | MS SCRANTON |
| Respondent: | MR SCRANTON |
| File Number: | PAC 3475 of 2009 |
| Judgment of: | Henderson FM |
| Hearing dates: | 26, 27, 28 & 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 26 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Shepherds The Family Law Specialists |
| Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Ms Druitt |
| Solicitors for the Independent Children’s Lawyer: | Matthews Folbigg Pty Ltd |
ORDERS
The mother shall have sole parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2003.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)For twelve occasions following the making of these orders from 9am until 4pm on Sunday.
(b)In the event that the twelve occasions have not concluded by the holidays at the end of Term 4 2010 then from 8am until 5pm on Christmas Day.
(c)Upon the expiry of time set out in 3(a):
(i)During the school term each alternate weekend from 9am on Saturday until 5pm on Sunday commencing the first weekend after the expiry of Order 3(a).
(ii)For one half of the school holidays which fall at the end of Terms 1, 2 and 3 being the first half of those holidays in 2011 and each alternate year thereafter the and second half of the holiday in 2012 and each alternate year thereafter and the changeover shall take place at 3pm on the Saturday nearest to the middle of the holiday period.
(iii)From 4pm on 31 December 2011 until 4pm on 13 January 2012 and each year thereafter.
(iv)From 6pm on the day before each child’s birthday until 9am on the birthday in 2011 and each alternate year thereafter and from 6pm until 8pm on each child’s birthday in 2012 and each alternate year thereafter.
(v)From 6pm on the evening before Father’s Day until 5pm on Father’s Day.
(vi)From 9am on Orthodox Good Friday until 5pm on Orthodox Easter Sunday
(vii)On the father’s birthday from the conclusion of school until 7pm if the birthday falls on a school day and otherwise from 9am until 7pm.
(viii)From 3pm on Christmas Eve until 3pm on Christmas Day in odd numbered years and from 3pm on Christmas Day until 3pm on Boxing Day in even numbered years.
(ix)On Australia Day from 9am until 7pm in 2012 and each alternate year thereafter.
The father’s time shall be suspended as follows:
(a)From 6pm on the evening before Mother’s Day until 5pm on Mother’s Day.
(b)From 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years and from 3pm on Christmas Day until 3pm on Boxing Day in odd numbered years
(c)For any period that the mother travels with the children pursuant to Order 13 or Order 14.
The father shall have telephone communication with the children each Wednesday between 7pm until 8pm.
The mother provide all consents necessary to any school that the children attend to forward to the father copies of the children’s school reports, notice of school photographs and any other communications which are mailed to parents.
The father shall collect the children from and deliver them to the McDonalds Restaurant [address omitted].
The father shall continue to attend with Dr K and any health professional recommended by her for such time and at such frequency recommended by Dr K.
The father shall at his cost give all consents necessary to enable Dr K to advise the mother:
(a)the dates of any attendance and non-attendance by the father at scheduled appointments.
(b)the dates of the father’s next scheduled appointment
Except as otherwise provided in these orders Ms Scranton born [in] 1976, Mr Scranton born [in] 1967 and the children named in this injunction are by their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [X] born [in] 2000 and [Y] born [in] 2003 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until the Court orders its removal
Declaration that the principal/habitual place of residence of the children is Australia.
The father may travel to the USA with the children on or after 4 March 2013 for a period not exceeding one calendar month each alternate year provided that:
(a)The father provides to the mother a copy of the travel itinerary not less than 2 calendar months prior to departure.
(b)The father provides to the mother a copy of the return air tickets for each child not less than 28 days prior to departure
(c)The father provides the mother with a telephone number and address for the children during their stay in the USA.
(d)The father lodges with the mother’s solicitor the sum of $5,000 as security for the children’s return 21 days prior to the date of departure. Such funds may be released to the mother in the event the children are not returned to the mother within 48 hours of the scheduled return date.
and the children’s time with the mother is suspended for the period that they travel with the father pursuant to this order.
That the mother may travel in 2010, 2011 and 2012 and then each alternate year to the USA with the children for a period not exceeding one calendar month provided that:
(a)The mother provides to the father a copy of the travel itinerary not less than 2 calendar months prior to departure.
(b)The mother provides to the father a copy of the return air tickets for each child not less than 28 days prior to the date of departure.
(c)The mother provides to the father a telephone number and address for the children during their stay in the USA.
In the event of a medical emergency relating to the mother’s parents or siblings the mother may travel with the children to the USA on such notice as may be practicable.
The mother shall hold the children’s passports being their USA and Australian passports save when the children are travelling to the USA with the father and the father shall return the passports to the mother when he returns the children at the conclusion of any period when they have travelled to the USA.
Each party is restrained from denigrating the other party in the presence of or hearing of the children.
The mother may re-list any application to vary these orders before Federal Magistrate Henderson by arrangement with the Associate to Federal Magistrate Henderson at short notice.
IT IS NOTED that publication of this judgment under the pseudonym Scranton & Scranton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3475 of 2009
| MS SCRANTON |
Applicant
And
| MR SCRANTON |
Respondent
REASONS FOR JUDGMENT
The matter of Scranton was a four day parenting matter heard on 26, 27, 28 and 29 July 2010.
Mr Kenny of Counsel appeared for the mother who was the Applicant. The father represented himself. Ms Druitt of Counsel appeared as the Independent Children’s Lawyer.
I delivered an interim decision in this matter on 4 August 2010, as requested by the father, to deal with two issues, being:
(1)His application to take the children, [X] born [in] 2000 and [Y] born [in] 2003, to the United States of America; and
(2)His application for his time with the children to recommence.
I refused the father’s application to take the children out of Australia but recommenced his time with the children each Sunday from 9am to 4pm.
At the conclusion of the Final Hearing the mother’s application was that the father’s time with the children ought to be supervised due to her concerns of the impact upon the children of being exposed to their father’s unpredictable and at times aberrant behaviour and the activities he engages in with the children.
At the Interim Hearing I determined that the father should be spending unsupervised day time with the children as supervised time could only be effected at a supervised contact centre. Supervised time had been trialled between November 2009 and April 2010. The father crammed so much activity into his two hours with his children that this time became oppressive.
At the conclusion of the final hearing I had formed a view that if supervised time was the order I should make in the children’s best interests, there was very little advantage in the children spending any time with their father in such circumstances.
After hearing all the evidence, and in particular the expert evidence of Dr W, I was of the view there was a significant advantage in the children spending time with their father provided he behaved appropriately and predictably with them thus supporting an increase of trust in the mother for the father and children spending unsupervised time together.
The issues at trial were as follows:
a)The impact of the father’s personality and agreed Obsessive Compulsive Personality Disorder (“OCPD”) upon his behaviour and thus his relationship and functioning with the children;
b)The amount or, as Dr W stated it, the dosage of time the children could cope with in their father’s unsupervised and sole care;
c)The impact upon the mother’s parenting capacity of an order for unsupervised time with the children and their father;
d)The risks for the children in spending supervised, unsupervised, day time only, night time and day time, and lengthy periods of time with their father;
e)The school the children should attend in 2011 and continuing; and
f)The issue of parental responsibility and the rebuttal of the presumption of equal shared parental responsibility.
The father’s application at the Final Hearing was that he start his time with the children one day a week, there be an increase in time to a whole weekend, then weekends and time during the week, such that within twelve months or so there would be a form of equal time.
Of importance in this matter was the issue of parental responsibility. The mother sought orders that she have sole parental responsibility.
The father sought an order for equal shared parental responsibility, but if I was to give parental responsibility to one parent he asserted he was the parent in whom that responsibility ought solely to reside.
The mother additionally sought an order that before the father progress to overnight or holiday time with the children, the father complete a parenting course as recommended by the Independent Children’s Lawyer and provide a comprehensive psychiatric report confirming:
a)He had insight and understanding of his psychotic condition;
b)He had completed cognitive behaviour therapy and other treatment; and
c)He would not expose the children to incidents, behaviour or conduct of bizarre nature.
The mother also sought limitations upon contact and communication the father could have with her.
The father wants the children to attend the [P] School commencing 2011. The mother wants the children to remain at [N] School and continue their education at a public school.
The father agreed that until the end of 2010 the children remain at [N] School and the mother have sole parental responsibility. After that, the father submitted that responsibility was to be shared or, if not, the father would have that responsibility.
In relation to residence, the father sought that he spend time with the children:
a)Each weekend from 8pm Saturday to 8pm Sunday commencing 11 October 2010;
b)Monday 12 noon on 11 October 2010;
c)From 11 October to 26 January 2011, every weekend from 8pm Saturday until 9am Monday;
d)During Terms 1 and 2 of the 2011 academic school year, from 8am Saturday until 9am Tuesday;
e)From Term 3 of the 2011 academic school year the children spend time with the mother from 9am Wednesday to 8pm Saturday, and with the father from 8pm Saturday until 9am Wednesday.
The father also sought specific orders in relation to: school holiday time; Christmas time; children’s birthdays; parent’s birthdays; an extraordinary number of saints days; orthodox holy weeks and orthodox holy dates; Father’s Day; Mother’s Day; Australia Day; day of the live broadcast of the USA superbowl games; United States Thanksgiving Day; Anzac Day; Queens Birthday; Western Ascension Thursday, Western Pentecost Sunday; Canadian Thanksgiving Day; the Annunciation of Theotokos; the feast of St Peter and St Paul; the Dormition of Theotokos; and [X]’s name day including the day observed for the Beheading of St John the Baptist.
Of importance to the father was the children’s attendance at a private school. Mr Scranton is philosophically opposed to public education as such education is solely funded by taxpayers. In Mr Scranton’s philosophy the power a government exercises in having its citizens pay taxes for the government to spend as it deems fit is coercive in nature. The father refers to public schools as “hostile territory” and thus arises his desire for the children to attend the [P] School despite that school, as are all schools in Australia, being funded in part by taxes.
The Independent Children’s Lawyer orders were:
a)The mother have sole parental responsibility;
b)The children to live with the mother;
c)The children spend time with the father:
i)For twelve occasions, upon the making of these orders, from 8am to 5pm on Sunday;
ii)Provided those twelve occasions had taken place:
a.from 8am to 5pm Christmas Day;
b.during school term each alternate weekend from 9am Saturday until 5pm Sunday;
c.half school holidays following Terms 1, 2 and 3;
d.from 31 December to 13 January;
e.time on the children’s birthday’s;
f.Father’s Day;
g.Orthodox Good Friday and Orthodox Easter Sunday;
h.time on the father’s birthday;
i.time on Christmas Eve/Christmas Day;
j.Australia Day;
iii)The father’s time with the children would be suspended on Mother’s Day; time on Christmas Eve/Christmas Day; when the mother travelled overseas with the children;
iv)Orders in relation to telephone communication;
v)Order that the father receive copies of the children’s school reports and the like;
vi)The father continue to attend Dr K and any other health professionals he is directed to attend by Dr K;
vii)The father to give all consents necessary to enable Dr K to advise the mother of his attendances and non-attendances and the date of his next scheduled appointment;
viii)The parents to be restrained from removing the children from Australia other than the father may travel after 4 March 2013 for a period not exceeding a calendar month and the mother may do so immediately.
Chronology
The husband was born [in] 1967 and is aged 42.
The wife was born [in] 1976 and is aged 33.
The parties were married [in] 1999 in California and within a couple of months of marriage had come to Australia to live.
They arrived in Australia on 28 January 2000 and are now citizens. The citizenship ceremony on 26 January 2007 was an important family event.
[X] was born [in] 2000.
[Y] was born [in] 2003.
The parties physically separated on 13 November 2007 when the mother and children moved to the [N] property and the father remained at the [W] unit.
The father returned to work in January 2008.
The boys commenced at [N] School in July 2008. Prior to that time, [X], who was the school aged child, had been home schooled by his mother.
The wife regarded her marriage as over on 18 July 2008. She filed for divorce on 28 July 2009 which was granted on 28 September 2009 and became absolute on 29 October 2009.
The father took the boys to New Zealand in the September/October school holidays in 2009 for two weeks.
The wife commenced proceedings in October 2009.
Short recent facts
At the final hearing Mr Scranton was spending no time with his sons. That arose on 2 July 2010, when I suspended the orders for his Sunday day time with the boys, due to what is called the “fish tank incident” at Dr W’s rooms.
Prior to that suspension on 2 July, and since 12 April 2010, the boys had been spending a whole Sunday with their father. The mother had maintained sole parental responsibility.
I made the orders for the father to have a day with the boys on 12 April 2010 after conducting an Interim Hearing. Prior to 12 April 2010, the father was only seeing the boys on a supervised basis at a contact centre, those orders having been made on 27 November 2009.
Prior to the orders for supervised time being made, Mr Scranton was not seeing the boys as I had become so concerned as to his behaviour when the matter was first brought before me on 2 November 2009.
The wife had filed her application in October 2009. This application arose due to the father’s behaviour. He had published intimate details of the parents' marriage breakdown at the children's school to teachers, friends and family including detailed reasons and his observations of, the party’s marriage. He had proposed to sit down with the children to discuss a detailed treatise he had written on marriage in general and the fact of the parent’s marriage breakdown but had not done so at the mother’s request. These behaviours swiftly followed his out of character behaviour upon his return with the boys from New Zealand in October 2009 when the mother refused him entry to the home.
In the light of this behaviour and the mother’s concerns that the finalisation of the divorce had further eroded the fathers’ functioning I ceased all time with the children and restrained him from any communication with the boys or approaching their school.
Thus from 2 November 2009 when I was so concerned at the impact on the children from their father’s behaviour that I suspended all time, he has had supervised time, day time, and then again his time has been suspended from 2 July 2010.
Mr Scranton has come a full circle. It is his behaviour and the impact of that behaviour on the welfare of his children that has caused these events.
Evidence relied upon
Father’s Evidence
For the father I read:
a)Affidavit, affirmed 23 July 2010, with annexures 1 to 59 in one bundle, and annexures 60 to 92 in a second bundle, and P1 to P3, being photographs. The father’s affidavit contained 2016 paragraphs, and some 200 pages of annexures.
The father was cross examined.
The father tendered the following exhibits:
a)Father’s Exhibit 1: Letter to Court headed the agreed Trial Plan.
b)Father’s Exhibit 2: Corrections to his affidavit both minor.
c)Father’s Exhibit 3: Interim orders sought.
d)Father’s Exhibit 4: Final orders sought.
Independent Children Lawyer’s evidence
The Independent Children’s Lawyer tendered the following exhibits:
a)Independent Children’s Lawyer Exhibit 1: A draft trial plan which the parties generally adhered to.
b)Independent Children’s Lawyer Exhibit 2: Final orders sought.
Mother’s evidence
For the mother I read:
a)Her affidavit sworn 15 July 2010 including annexures A to BBB. The mother’s affidavit was 160 paragraphs and some 200 pages or so of annexures.
The mother was cross examined.
The mother tendered the following exhibits:
a)Mother’s Exhibit 1: Handwritten notes from Dr K, the husband’s treating psychiatrist.
b)Mother’s Exhibit 2: A letter to Dr K, written by Mr Scranton, dated 30 April 2010 headed, “Don’t Wreck My Brain”.
c)Mother’s Exhibit 3: Floor plan of the [W] unit drawn by the mother.
d)Mother’s Exhibit 4: The father’s document headed, “Response Items to Dr W’s Report” setting out errors he saw in Dr W’s report.
e)
Mother’s Exhibit 5: A letter from the father to Dr W headed, “Suggested Topics on which to Solicit Children’s Views”. I colloquially refer to that document as a “hints” prepared by
Mr Scranton for Dr W in the interview process.
f)Mother’s Exhibit 6: The father’s handwritten summary of his financial position. I will not hold the father to that as a perfect document. I accept the document was prepared on the day at Court and under pressure. However, what it tells the Court is that the father is in a negative financial position not a positive position.
g)
Mother’s Exhibit 7: An article which Mr Kenny used to ask
Dr W questions regarding OCPD which was headed “The Right Stuff”.
h)Mother’s Exhibit 8: Minute of the orders sought on a final basis.
Expert evidence
Dr W, psychiatrist, prepared two reports. The first was marked Court Exhibit 1, dated 24 March 2010. This report was a psychiatric assessment of the father. Dr W saw the father alone.
Court Exhibit 2 was Dr W’ second report dated 14 July 2010. This was a family report where all members of the family were seen.
Dr W was cross-examined
The documents tendered at the hearing were voluminous.
Suffice to say, Mr Scranton is an articulate, highly intelligent man who puts everything on paper. The volume of reading required by all involved in this hearing was in the main produced by Mr Scranton either during the marriage, for this hearing or in response to his medical treatment. Both he and his wife tendered his various documents and often the same document.
The volume and quality of the documents is extraordinary.
Mr Scranton’s written work is well written, easily understood, thoroughly researched and in my words, “obsessive to the last detail”.
There was factual agreement between the parents on most matters. The differences arose from their respective reactions to events, understanding of the consequences of each other’s behaviour and the needs of their children.
General observations from the evidence
This is an unusual matter in that the father has an exceptional intellect and is an engaging and interesting person. At first blush he has much to offer his sons. The father agrees, as does Dr W the expert in this matter and Dr K the father’s current treating psychiatrist, that he suffers from obsessive compulsive personality disorder (“OCPD”).
The mother’s concerns are that the father’s eccentric functioning and OCPD has the capacity to pose a risk to the children in their father’s sole care as it did in the past, even when she was there as a buffer to the extremes of his OCPD disorder.
The father’s belief systems, his dominating and potentially overpowering personality and need to be in control of all aspects of the members of his family’s life, day to day and long term, has had a negative impact on his family in the past.
The Court’s concern is whether this is continuing.
The father’s functioning has made the mother’s role as a parent far more demanding than otherwise should be the case given both parents are law abiding, good citizens who love their children deeply.
The father freely admitted in the witness box that he had suffered from OCPD and that it has, at times, significantly impaired his functioning, making him emotionally and physical unavailable to those around him in that he becomes completely obsessed with projects.
Mother’s and father’s concerns
The real concern for the mother of these young children is her experience of the father during their marriage, namely his becoming obsessed with projects to such a degree that he abandoned financial responsibility for his family and was not emotionally available to the mother or the children, may be continuing and could become extreme again at any time.
The mother’s experience of living with the father was traumatic for her. The father has let her down as a husband who financially cares for his family and listens to his wife’s concerns, as a father who is available to his children both emotionally and physically, and as an adult with whom she believed she had many shared life goals.
Of particular hurt to the mother was that even when she raised these important concerns with him, going as far as to say she no longer wished to live in the same home as him, he was so consumed by his projects that he ignored her entreaties to seek help. The consequence was the break down of the marriage.
When giving evidence the father agreed that his obsessions with finishing projects and ignoring the mother’s entreaties to seek help were in part responsible for the breakdown of his marriage. Yet even now his position is that finishing his projects was the priority despite the consequences.
The projects at that time included restructuring the churches finances and completion of a filtering and security programme for his computer. Neither of these projects has been completed.
When being cross examined by the Independent Children’s Lawyer and Mr Kenny, the father was asked:
Did you not realise that by finishing these projects your marriage was at risk?
The father’s answer was along the lines of “I had to finish my project” or “finishing the project was very important to me”.
The father’s honest answer that finishing his projects was ultimately more important to him than the pleas and entreaties his wife had made to become available to her and the children supports the mother’s history of the marriage and highlights her ongoing concerns for the children.
This obsessive behaviour has resulted in the children being exposed to some unusual activities whilst with their father and their mother becoming increasingly concerned for their welfare.
Dr W said that the question for the Court, following the conclusion of the evidence, was the dosage of time the children could spend with their father without exposing them to harm.
Dr W said, at the conclusion of his evidence, that alternate weekends being one night a fortnight, was probably the dosage the boys could cope with together with some time in the holidays
The examples of the father’s obsessive behaviour during the marriage are voluminous and I do not intend nor need to refer to all of it. However, I will refer to behaviours that highlight the difficult and unusual living arrangements the father subjected the wife and children to and his unreasonable expectation of behaviour from his children and his wife.
The obsessive behaviour since physical and then final separation is also voluminous and again I will refer to only the most extreme examples of the father’s concerning behaviour.
Dr W opined that the mother should have sole parental responsibility as it was virtually impossible to negotiate with the father or have a free flowing discussion of different views. The correctness of this assessment became apparent during the hearing.
If a person does not agree with the father’s view the amount of information that is released upon that disagreeing party by the father in an endeavour to convince them of their error is such that they have to give in. Dr W referred to this as desiccating the debate, meaning there is there is so much information given out that one becomes overwhelmed.
I accept desiccating the debate is the opposite of what the father wants to achieve, but it is the consequence of his behaviour and conduct. The consequences of behaviour and conduct lies at the centre of what I must have regard to in terms of orders in the children’s best interests.
In Dr W first report, Court Exhibit 1, he stated at page 10:
I formed the view that Mr Scranton was not primarily interested in coercion. But rather his extremely obsessive method of compilation, production and presentation of these documents is coercive in itself and almost stifling of the debate, although that is not what he wants.
That this is the father’s natural behaviour was apparent from the vast quantity of material the father produced when the mother and he first physically separated and then again when the mother determined to file her application for divorce. Dr W said:
His intention is to be democratic and listen to others’ views, but his method of going about it unfortunately would actually stifle almost everybody, particularly his children. This paradox is illustrated well by the document related to passports and also the agendas for the contact visits…. Parents with a good attunement to their children recognise that most children just want to have fun with their parents at these times…. Mr Scranton’s agendas seem to fly in the face of children having fun with their father. There are significant spiritual, academic learning and physical exercise elements as well as homework. Unfortunately these agendas probably only succeed in compressing Mr Scranton’s probably extremely structured approach to parenting into an indigestible lump which probably actually diminishes more than advances the children’s capacity to enjoy the time that they spent with him.
At page 11 Dr W reports:
…the length to which he would go to make sure he did this [provide for his children’s intellectual needs] properly could easily undermine the likelihood of the result that he desires, particularly in the area of intellectual sustenance for the children. He also would take the same reductionist, over-zealous approach into meeting the children’s emotional need to such an extent that I think he would effectively desiccate his contribution despite his high motivation.
At page 10 he reports:
It seems likely that Mr Scranton has always been an extremely obsessional person, however it is possible that his obsessionality may have become worse with time…
Dr W continued:
…particularly when as he became relatively more isolated into a smaller religious community, later in a foreign country, and especially in the years during the marriage when he was not working and the children were being home schooled.
When the mother was homeschooling [X] in 2006 he was six and [Y] was three. The father was at home working on his “project”, his computer protection network. The family was living in a two-bedroom apartment at [W].
The father had placed tape on the floor in the small living room to indicate where the children’s toys could be and where they could not be. The home school rules he produced for the mother’s benefit were extreme. The father believed that it was appropriate that [Y], at age three, was not to talk while his brother was being home schooled and if he did talk or interrupt he was to be punished.
When looking at the mother’s evidence it is clear her life and that of the children was intolerable at that time and had been for some time.
Prior to ceasing work the father was working long hours from about 7am to 8pm. The father would put the children to bed on Sundays; otherwise the mother cared for the children 24 hours a day.
Once the father commenced working on his projects from home in March 2004, the mother became even more isolated. The father had turned their home into his own work place. The family went to church on a Sunday this being the only social outing engaged in on a regular basis. They had little money, no car, the mother walked to the shops with the children in the pram to do the grocery shopping carrying the groceries home.
The father spent little time with the boys whilst obsessed with his projects. The mother attended to all their needs. That was an intolerable situation in which to parent two young children.
The mother agreed that she and the father wished to have the children home schooled and that the mother was the one who carried this out. She and the father discussed the curriculum and the father produced a document annexed to his affidavit and marked Exhibit 17, headed “Scranton Home School Rules”. [X] was aged 6, [Y] aged 3. These rules stated:
[Y] is invited to listen to [X]’s lessons in the following subjects:
History
Science.
The daily and weekly schedule should be formulated to give each child an appropriate amount of time for personal instruction at his level.
Ms Scranton should currently be spending about half-hour a day with [Y] teaching letters or / and numbers.
Rules for [Y]
1. When playing in the bedroom, [Y] should be given a specific area to play in and a small number of toys and books to play with. He should be reminded at the beginning of each school day not to leave his designated play area and not to touch anything in the bedroom other than his toys and books. If he breaks any of these rules he should be punished immediately. If Ms Scranton does not want to punish him at that time, she is to send him to Mr Scranton for punishment.
2. When listening to [X]’s lessons, [Y] must be absolutely quiet. He should be listening to the lesson and not talking or playing with toys. The only reason he may speak is to ask to go to the bathroom or have his diaper changed.
3. The first time [Y] speaks during [X]’s lessons… he should be sent to play quietly in another room.
The rules continue. [X] is to:
Have a positive attitude and do not complain.
Generally, children should be encouraged to use the bathroom between subjects rather than interrupting a lesson.
Discipline must take priority over academic instruction. It would be better to have poorly educated children who are well behaved than well educated children who misbehave.
I find those rules tyrannical and contra to an environment encouraging assisting children to learn. They were imposed by the father on the mother and meant for her to impose on their children. The mother’s affidavit continues in this vein and is distressing.
The mother says at paragraph 30:
I found it very difficult to change my Husband’s opinion on any matter and eventually gave up any attempt to do so.
That is confirmed by Dr W. The father desiccates debate. The mother’s affidavit states:
Whilst my Husband did not assist for the most part with the day to day care of the children he did make numerous plans, charts and schedules including me and the children. Everything in our lives was controlled by my Husband…He gathers data, creates a spreadsheet, analyses data and finally makes decisions for purchases such as a phone, compute hardware, and even for the purchase of juice.
Even at the hearing when pressed on this issue he still confirmed his belief evident at that time that silence was appropriate behaviour for him to expect of a three year old child. Silence imposed upon the three year old child by the mother not the father. That expectation is wrong and indicates no understanding of the capacities and needs of a three year old child or the appropriate discipline by a parent of a young child.
In order for the children to have some play room in the apartment the mother moved all four of them into the main bedroom so that the father could have the children’s bed room as his work place. This unsatisfactory situation for the children and the mother came about from the father’s priority of his needs and obsession with his work, his need for the home to be quiet and for the children to behave in an orderly fashion. The father was not, at this time, earning any income to support his young family and they could not move to larger premises.
At that time the emotional strength of the mother was sorely tested. The mother bore this load alone as the father, who had created this nightmare, was unable to share its consequences with her due in large part to his illness.
At page 9 of his report, Dr W states:
In Mr Scranton’s case, it is clear that he is preoccupied with details, rules, lists, order, organisation and schedules to the extent that the major point of the activity risks being lost. He shows perfectionism that interferes with task completion both at home and at work. He is probably excessively devoted to his work and productivity to the exclusion of leisure activities and friendships, and he seems to bring productivity measures into everything including activities with the children (such as contact visits). He is over-conscientious and scrupulous…. He shows rigidity and stubbornness.
Unfortunately Mr Scranton seems to apply rather similar standards to the family relationships including those with his children to the standard that he has applied in his spiritual life and his approach to his work.
These are standards of rigidness, stubbornness and inflexibility. Dr W said:
While I have no doubt that he cares for his children a great deal and they know that they are loved by him, the obsessive approach that he takes to every activity, including those which ordinarily would be regarded as untroubled and free play, probably has the effect of extracting much of the emotion from these ordinarily joyful activities.
From the mother’s history of the marriage, as reported to Dr W at page 4 and 5 of Court Exhibit 2, she said she and the father had “a few good years initially” in their marriage.
The mother knew that lists and schedules were important to the father, but there was no imposition of his lists and schedules upon the mother at that time. She believed significant problems started to evolve even before [Y] was born. The father became increasingly immersed in various projects and put extreme effort into these things but productivity did not ensue.
The father took four or five weeks off work after [Y] was born. He returned to work and completed the contract. They travelled to the United States where they resolved a tax issue in the father’s favour before returning to Australia. This is when the father became particularly obsessed with his two projects: the church accounting project and an electronic method for sorting through junk emails on the computer and its security.
As the mother said in her oral evidence:
I said to him “Why not just press the delete button?”
The church project took 18 months of the father’s time and he continued to work on his electronic method for sorting through junk emails as well as protecting his computer.
After the return from the United States when [Y] was but a baby, the father did not return to work for four years. This placed the family at a significant financial disadvantage and they were effectively living hand to mouth from handouts from the father’s family. The mother could not return to work. She had the care of the children. The father could not care for the children. He had never done it and was simply unable to do so. This placed the mother in a most parlous situation.
The father would plan what the mother would do, for example, the home school rules, the juice she was to buy at the supermarket, when they were to have sexual relations and when they were not to, when they were to hold hands and the like. The schedules for all of these activities are attached to the mother’s affidavit.
Days out became a planning event. The mother and the children would have to follow the father’s plan. He would take little part in the carrying out of the plan because he was obsessed with his two projects.
The mother gave quite poignant evidence that she wanted a car. She had two young children to care for. However, the father said they could not afford it. The father was quite callous in his cross examination of the mother on this issue. He said:
You knew we didn’t have enough money and you knew we couldn’t afford a car.
Yet, when the parents physically separated the father obtained a car for himself. I said to the father:
Do you see an inconsistency with this approach. That is, you have a car now but you wouldn’t buy one for your wife when you were together?
The father said:
Well, I have to run around and do things for the children.
I then asked:
Didn’t your wife have to run around and do things for the children when you were together?
The father replied:
Well we talked about other issues such as her getting a taxi to do the shopping.
That evidence neatly sets out the father’s lack of understanding of others needs. It also demonstrated a callous and miserly approach to the wife. That is, when the father has the children one day a week he needs a car, when the mother had them full time she does not need a car. The father became very hostile to the mother in relation to the car and I saw a flash of anger in him. The reason for this was that the mother was saving up money he was paying her by way of child support to purchase a motor vehicle for herself. The father was most upset with this.
Dr W said in his first report at page 10:
It is my view Mr Scranton would benefit a great deal from counselling that was orientated towards softening his approach to the children.
However, as I see the evidence, unless the father wants to change and believes that his obsessive compulsive personality behaviour, or as
Dr K opined, his ‘psychotic episodes’, are a danger to the children or he is not happy as the person he is, no one will be able to persuade the father to change his behaviour, approach or his actions. I saw absolutely no evidence that the father was unhappy with the type of person he is, his behaviour or actions. Rather it was to the contrary.
However he did accept that his OCPD has impaired his functioning and thus there is a hope that he will be amenable to cognitive behavioural therapy which he will continue to undergo with Dr K in whom he has faith and trust.
It was not until physical separation in 2007, when the mother moved to the [N] home and Mr Scranton remained in the [W] apartment, that the father had the children on his own for any period of time.
The mother physically separated from the father as she realised she and her children were becoming enmeshed and embroiled in the father’s obsessions, compulsions and projects. The mother is a remarkable woman. The mother knew she had to leave this overbearing environment for her and the children’s emotional health and she set about obtaining employment and moving premises.
The mother describes her leaving the cramped [W] flat and moving into the [N] property, a three-bedroom home with a backyard, in 2007 as being like “a butterfly unfurling from a cocoon”. I can only imagine the freedom she and the children felt to be in a home with sufficient bedrooms for everyone and a place to play in a backyard. The mother enrolled the children at the local primary school where they mixed with children of their own age and engaged in usual childhood activities.
When the parties first physically separated the mother was encouraging the father to spend time with the boys as he was still busily engaged in his projects. I accept the mother’s evidence that it was she who fostered and engendered a relationship between the children and the father. The mother requested he spend more time with the children than he was spending.
The father was spending time with the boys each alternate week. It was not until the divorce was finalised and the mother commenced these proceedings that he sought more extensive time with the boys. The mother is most concerned that the father is looking at the boys as another project and therefore they may be another obsession. He has become an extraordinarily concerned parent who seeks to cram maximum information and stimulation of a physical, spiritual and educative nature into every moment he has with the boys.
This is contrary to his actual hands on physical involvement with the children during the marriage. I accept that during the marriage the father took very little day to day interest in these boys and rarely engaged in activities with them and thus her concerns are warranted. The mother is concerned of the consequences if that obsession diminishes over time. However she also agrees he loves the children very much and that they love him in turn and enjoy their time with him in the main.
A theme of the mother’s evidence is that the father ignored the mother’s entreaties to change and seek help. It was not until the mother filed her application for divorce on 28 July 2009 that the father realised for the first time his wife meant business and that she intended to end the marriage.
The father’s behaviour began to rapidly deteriorate after his return with the boys from New Zealand in October 2009 and the mother refused to allow him to enter her home as she had previously done as they were now divorced. The mother then commenced these proceedings
The issue of the car bespeaks volumes of what Dr W talks about of the father being unable to see things from other people’s perspectives because he becomes so obsessed with his needs. That is a real concern when we are talking about day to day care of children.
At page 10 of Dr W first report:
I formed the view from the material available to me that
Mr Scranton is a very law abiding person by nature. I could not find by my examination any clear indication that there is any dangerousness associated with his personality, but merely that it is a fairly extreme form of eccentricity about which he has relatively little insight concerning the impact of it on his children or his expectations of them.
I would qualify this however to say that my opinion is based entirely on the result of a clinical examination and a review of the documents listed above. It is possible that this information base may not provide adequate coverage of information which could indicate a degree of risk to the children. In particular, in a person of his personality type, it is possible that he has not disclosed to me an underlying system of paranoid thinking which if present would probably have strong themes of ultra-conservative and exclusionist views…and his day to day habits which could create difficulties for the children… which may leave the children feeling rather tyrannised, eager to please, anxious about failure and generally undermine their confidence.
The relevance of this is that the father has seen Dr K due to his breakdown at work when he was served with the application for divorce. He has not been at work since July 2009 and has been on stress leave since that time.
Dr K’s notes clearly state after some sessions and discussions with the father she opined he may have an underlying psychosis which medication would help. Upon hearing this the father wrote a most enlightening and well informed document headed “Don’t wreck my brain” as to the reasons why:
a)He did not have a psychosis, schizophrenia, paranoid or delusional thinking;
b)He was not required to be medicated.
That body of work was so persuasive to Dr K that she subsequently determined that she would not medicate the father.
Dr W said in evidence that he thought the father should have taken the medication to see if it would help, although he accepted it might have had side effects.
Dr W enjoyed his cross examination by the father and understandably was enthralled by the father’s mental capacities and exceptional intellectual skills, he being a Doctor of the workings of the brain. Thus I am left with an impression that the father is capable of “glamouring” health professionals in terms of what really is at the heart of his eccentric and bizarre behaviour, be it a psychosis or OCPD.
At one level a clear diagnosis is not an issue for the Court. What I must concentrate on is the impact upon the children of their father’s behaviours and eccentricities or at worst his psychosis. The need to protect children from harm is weighing heavily on my mind as it was on Dr W mind. Dr W was clear in his opinion that the issue for the Court was the dosage of time the children could tolerate in their father’s sole care without suffering harm.
The experience of the mother in living with this controlling behaviour has been catastrophic. I accept when the mother says that the thought of receiving documents from the father or communicating with him causes a physical reaction of panic/anxiety and she cannot contemplate doing this at this time. She said that the father wanted to communicate everything to her, but the way he did it and how extensive he was in his communication was controlling and confining for her.
The father’s affidavit in this matter was 2016 paragraphs with 2 large bundles of exhibits. The father is a prodigious and talented writer.
The father hoarded things such as junk mail and papers; he kept them in the small apartment he shared with the wife and children. He kept a tick which had been on his body, a piece of tissue which he coughed up from his throat, a blood stained section of the sheet from the night they first had intercourse.
The mother is concerned that [X] emulates his father and Dr W agreed with this concern as to [X]’s emotional vulnerabilities. Dr W said his sense of [X] was that he watches his father and takes his cues and his lead from his father. Dr W said that [X] does not have the same intellectual capacity or brain power as the father and that [X] is the child who is most vulnerable to being negatively impacted upon by his father’s eccentricity and obsessive behaviours. [Y] is more emotionally robust and both the mother and Dr W said he can look after himself with his father.
The mother is so attuned to her sons that her view is mirrored in Dr W report. Dr W said [Y] is able to break free and express himself and demand a different form of attention and not follow his father’s lead.
Dr W said that what pleased him is that the father well recognises the differences between his sons and is able to offer them a different style of parenting. The mother is concerned that the father may share inappropriate information with the children and that [X] is far more susceptible to being imposed upon by his father to accept his father’s views than is [Y]. I share that concern and so does Dr W.
The father had a habit during the marriage of sitting down with the family for four or five hours talking about issues. This is when the children were variously aged three, four, five and at times unable to read.
Each family meeting had a written agenda prepared by the father. At the time the father believed this was an appropriate activity for a child to endure and he continues in that belief.
Dr W had no concerns for the mother’s psychiatric health and the father’s attempt to convince me that the mother had some emotional difficulties was not accepted by me or Dr W. As I have previously said the mother is a remarkable woman who has demonstrated extraordinary emotional resilience and is highly attuned to the needs and differences of her sons. The mother still today displays a positive attitude to the father and the benefit of the boys having a meaningful relationship with him.
I detected not one jot of anger, hostility or negativity from the mother to the father in her written material or under cross examination. Rather I detected a deep sense of loss and hurt that her marriage had failed and the father thought so little of her that he failed to take any steps to remedy his destructive behaviour during the marriage and continued to put his needs above his families needs.
The mother was concerned that since the boys had been spending a day with their father each week, their behaviour had deteriorated. [X] was hell-bent on punishing [Y], a trend the mother had noticed during the marriage when he would “dob” on her to the father. The boys were fighting and were more antagonistic towards each other.
[X] wrote an e-mail to his friends on 28 May. The email refers to an alleged newspaper article of a teacher at a public school being questioned by police for stripping in the teachers bathroom and having sex in that bathroom with another teacher. The e-mail is extremely well written. The e-mail was brought to the mother’s attention by the mother of one of [X]’s friends. When she questioned him he said he just made it up.
He wrote another document (Exhibit BBB attached to the mother’s Affidavit headed “[X]’s newspaper school or torture”. He went on at length in that article describing the horrible things that happen at his school, a public school in NSW. These included complaints about the library opening hours, the school conditions, boring and repetitive lessons and the like.
The mother is concerned that this is [X] portraying the same negative attitude to public schools that his father has and that this has increased since he began to spend day time with his father in April 2010.
The mother is also concerned that the father has difficulty doing things on time. As he is overly obsessive about matters he cannot get out the door easily in a timely fashion. He was always a little late for Court and her concerns are he would be unable to have the boys ready for school on a daily basis if his orders were made.
There was an emphasis in the father’s evidence of the mother going back on “agreements” they had reached about schooling for the boys, passports, who would keep passports, time with the boys and the like. That “going back on agreements” as he saw it stressed the father.
I formed the view that the father has no idea what the word “agreement” means.
What the father regards as agreement is a comprehensive detailed document prepared by him setting out chapter and verse what he believes should occur and that such a document when presented is the agreement. It is not. This is merely the father imposing by documentary evidence of a voluminous nature his will upon others and in particular the mother.
Acceptance by each party is at the core of an “agreement” not acquiescence under pressure or weight of material as happened to the mother again and again and as Mr Scranton tried to do with the Court in his eleven well written and comprehensive affidavits filed in these proceedings, the last of which was 2016 paragraphs in length.
The New Zealand holiday in October 2009 highlights many of the mother’s concerns of the father’s behaviour and conduct.
The mother gave evidence that prior to her filing and serving on the father the Divorce Application, she agreed to the boys attending a holiday with their father in New Zealand. Before they went to New Zealand, the mother acquiesced to the father’s need to have a ceremony to exchange the boys’ passports. The boys greeted her at the door and said “Dad says we can go out to dinner if you say it’s ok”. The mother said she did not want to go out to dinner with the father but, as the boys were excited and they were going on a holiday, she agreed. When they went to the restaurant, the waiter asked the mother what she wanted to drink, the father answered “wine”. The mother said “water”, the father said “no, wine”. The waiter asked her again, she said “water, thank you”, the father said “no no, she wants a glass of wine”.
The mother said she realised then she could not even order her own drink at a meal with the father. He was so controlling of her behaviour. That was when she determined she would proceed with the Divorce Application.
The mother had been permitting the father to attend her home, come into the home to see the boys, collect and deliver the boys. The mother and father engaged in detailed and lengthy correspondence and phone conversations concerning the father spending time with the children. The father’s time was limited in hours but it was regular and from the mother's point of view, beneficial.
However the mother’s attitude to the father spending unsupervised time with their father changed after his poor behaviour upon his return from the New Zealand holiday.
The events surrounding the father taking the boys to New Zealand in the 2009 September/October holidays is set out in both parent’s affidavits and they were each cross examined on the facts. The mother had just filed the divorce application.
As I see the evidence, the wife acquiesced to the father taking the children to New Zealand. The father had wanted take the boys and the wife on an extensive holiday to the USA. The wife did not want to attend the USA with her husband. She did not want the boys to go to the USA with their father at that time.
Even though the father knew the mother had filed an application for dissolution he persisted and pressed the mother to take this trip as had been planned by him some years earlier.
The father then sought to take the boys to Tonga, another holiday planned many years earlier. The mother was unhappy with Tonga. There was a "ceremony", to use the father's words, of handing over the Australian and American passports of [X] and [Y]. This ceremony took place in accordance with the document prepared by Mr Scranton called "The Scranton Family Passport Protocol" dated 6 October 2009. It was that each parent would have one child's American and Australian passport such that neither parent could take both boys on any occasion as they did not have passports from the same country for each child.
The father’s position is that as the mother signed that protocol she consented to it and all the consequences of having signed it being overseas travel, who holds which passport, when passports are released and the like. However, as I have already determined consent, or free flowing exchange of contrary ideas, coming to a consensual agreement between adults, is not possible with the father. Consent for the father is his presenting a detailed, comprehensive, thorough document with which the other must agree.
This protocol is no different to many other “agreements”.
I accept the father’s evidence that the mother acquiesced to the boys going to New Zealand with their father. It was only four hours away, it was a two week holiday and at that time the mother believed that the father and the boys would be able to cope with that period of time away from her. It was an opportunity for the father to look after the boys on a day‑to‑day regular basis, rather than just one day a week, or the odd weekend and the badgering by him would have continued had she not agreed.
The father’s behaviour upon the return to Australia at the mother’s home and in front of the boys on 18 October 2009 was reprehensible at every level. The father was clearly distressed about the divorce proceedings as was the mother. The mother was distressed as she believed she had been ignored by her husband as he had not taken up any of her entreaties or offers to engage in therapy and thus she ended the marriage.
The father's behaviour bordered on abusive. It was manipulative, controlling, and coercive and not child focused. It threw into stark relief the real concerns this dedicated and effective parent had for the emotional and psychological health of her children in their father's sole care. The father was stressed on his return. The divorce was being finalised and the mother would not allow him to enter her home as she had previously done their marriage having now ended.
[Y] was around six and [X] around nine. The boys had not seen their mum for two weeks, they had been on an overseas trip, and had been away from her for the first time for any length of time and she away from them.
This was a big event in the boys' lives, a big event for their mother, and the father. This was the first time he had solely cared for them for such a lengthy period of time.
The father requested to come into the home, as was his usual practice. The mother said, “No, as we are now divorced and I don't want this to occur. Just return the children to me and I will see you later.” The father would not return the children to the mother. He created a scene in front of the boys and the mother.
The father says he was shocked the mother had gone back on her agreement and he was now concerned what this meant for him in seeing the boys in the future.
The father would not allow [Y] to go inside to go to the toilet. He would not let the boys touch or speak to their mother. He ordered them to return to the car where they had to wait. [Y] had to go to the toilet at a neighbours who intervened to allow this to occur. The police were called and as no orders were in place they took no action and the father took the boys home.
The father took them to school the next day and their mother collected them early so these events would not occur again and to enable she and the boys to be re-united. These proceedings then ensued.
When the father was asked to explain this aberrant behaviour and non-child focused approach at that time, he said:
Ms Scranton had unilaterally changed our arrangements that I could enter her home when returning the boys and I did not know what she now planned for me and the boys.
As a backdrop the father had changed the locks on the former matrimonial home at [W] and saw nothing wrong with that, yet criticises the mother for her appropriate conduct. The mother is and was entitled to say "I do not want you to enter my home”. The father’s failure to respect her wishes is a poor reflection on his attitude to the mother and his lack of respect for her individuality.
It also bespeaks of a double standard.
Further, for the father to suggest that the mother would interfere with his time with the children in the circumstances where she was the one encouraging him to spend time with them is mischievous or downright fanciful.
This is but one example of the father's manipulative and overbearing behaviour and his manner of dealing with conflict particularly when his wife stands up to him. The result is his children suffer. His actions cannot be justified at any level. They were downright cruel and mean to his children, not to mention disrespectful to the mother, and I do not accept the answer the father gave as a proper explanation.
I accept there were no problems on the holiday in New Zealand and the boys enjoyed themselves with their father.
Even at the conclusion of the hearing the father, when making his submissions on his application for the children to travel to America, submitted that the mother was more than welcome to come with them, he would have the mother back at any time, and he would resume the relationship with her.
The father has not accepted that the mother regards the marriage as over. He does not accept the consequences of the parties’ divorce or that his wife is acting independently of him. The mother’s concern that the father may try to use time with the boys to spend time with her has some substance.
The issue of the father’s eccentric behaviour is a matter of concern for the mother. One example is his reaction to Father J. Father J is a priest in a Church the parents attended during the marriage. By late 2006 the mother was becoming extremely concerned by the father’s behaviour. In addition he was not listening to her that he needed to get help if their marriage was to continue. The mother sought to enlist others to assist her to explain to the father what her needs were as a wife and a human being. In her desperation she attempted to involve his parents and Father J from their church to intercede as she thought they may make more progress than she had.
The father’s reaction to Father J’s comments and discussions with him were extreme. The father sets out clearly in his 2016 paragraph affidavit, commencing at paragraph 288, events at the meeting on
16 February 2007 with Father J.
Father J spoke to the father with the mother present and reiterated that the mother had asked the father to leave the home. The father said that it would make no sense for him to leave the home as he needed to get a job as the mother had been urging him to leave his projects and get a job for some time, he needed to continue to use his computer and phone line and it would make no sense for him to move out as that would disrupt the things he had been working on and make it even harder for him to get a job. According to the father, the mother arose from her seat and started to cry. The mother’s concerns that the father was still focused on what he needed to do, not what his family needed, was laid bare.
According to the father, Father J leaned forward in his chair, put his hands out in front of him, looked directly at him and said:
That’s not how it works. Here in Australia, if a wife wants her husband to leave for any reason, all she has to do is pick up the phone, and he has to go.
That was repeated several times. The father said he reiterated his need to use the computer and phone line. Father J is then alleged to have said to him:
Well, good! Then maybe you’ll have a nervous breakdown and come to your senses.
The father said he told Father J that he and the mother had agreed he would write a list of tasks required to finish his computer project and make an estimate of how long it would take, but he was not willing to set a deadline because there were many uncertainties and he did not want to make a promise he could not keep.
Father J said he had to set a deadline otherwise he would be out the door on the day of the deadline if it was not finished and that he should do what the mother wanted otherwise it would be traumatic for the children to have them removed from the home.
The father said he was terrified by Father J’s threats and was stunned that the mother just sat there and listened to him. Since that time the father has not returned to that church or spoken to Father J. The father wishes for Father J to be dealt with by his church authority for what the father regards as inappropriate conduct and is pursuing this with that authority.
The father went on at length in his affidavit and in his oral evidence about the stress he then endured, living in the home, working 16 hours a day on his computer project fearing that he would be forcibly removed from the home by a word from the mother.
The mother has an entirely different take on the meeting with Father J. The mother believed that all Father J was doing was trying to make the father realise that he needed to focus on the needs of the mother and the children if the marriage was to continue.
What the father’s evidence demonstrated is that the mother’s fears of the father’s self absorption and unavailability to her and the children were real. It brought home the oppressive and harmful living circumstances of she and the children and demonstrated the father’s inability to see the needs of his family as more important than finishing his projects.
The father created a document prior to the purchase of a filing cabinet for the mother’s use. In that document he sets out dimensions for how much of the filing cabinet the mother could use and how much the father could use. This is but one example of an intrinsically simple thing, the purchase of a filing cabinet, being turned into a controlling and overbearing event by the father’s conduct.
He prepared charts as to what time the parents would wake up, what they would do and at what time they would, for example, eat breakfast. The father prepared a life plan until 2060 including when the parents would have their third and fourth children.
The father prepared a chart as to what was in various commercial fruit juices on the supermarket shelves and what the mother was to purchase and what she was not to purchase.
The father prepared a fasting regime each year. Extreme fasting. Although the father said he did not expect the children or the mother to follow that fasting regime it is of concern that the father follows such a strict regime. He prepared weekly food schedules for following during lent.
There was an outline prepared by the father for paper usage, file usage and storage.
There was a plan for the holidays the family would take from 2004 to 2010. The trip to the USA planned by the father with the boys after the final hearing had been extremely thoroughly researched and planned. He produced a detailed itinerary covering almost every day of the trip from the time he picked up the boys from their mother until he returned them to her.
The trip covered matters important to the father and his sons and covered the three important matters for him in parenting the children namely education, spiritual and physical needs. The trip’s epicentre was to celebrate his parent’s 50th wedding anniversary.
Part of the father’s philosophy is to expose his children to other ways of looking at the world, particularly in matters spiritual, and how other people live their lives and celebrate their festivals and special occasions. He intended to travel to parts of America relevant to the Scranton family including [locations omitted].
The father proposed the children spend almost three months overseas in circumstances where he has never cared for them alone for such a long period, they had never been separated from their mother for such a long a period and the boys are both at school.
The trip, as proposed, further highlighted the father’s inability to see what is best for the children at an emotional level when his needs are also being considered.
[Y] at six and a half is simply too young to be separated from his only functioning parent for such a lengthy period of time. The consequences of [Y]’s separation from his mother were put to the father. The father said he would be fine. His mother did not agree with that, nor did the Independent Children's Lawyer, and this evidence highlighted what I see as a fundamental difficulty with the father’s understanding of his children’s needs.
The father’s lack of understanding of the consequences for [Y] and [X] of such a lengthy absence from their mother, thousands of miles away, is of concern and demonstrates his lack of insight into the impact upon the boys of such an event.
That this continues to be a deficit in the father’s parenting is further demonstrated by his continued belief that the home school rules he imposed upon the mother in September 2006, Exhibit 17 to his affidavit, are reasonable and appropriate. The rules included that [Y] must be “absolutely quiet” whilst [X] is doing his lessons and if he is not he “is to be punished”. [Y] was then three and a half years of age. Dr W said it was a rather extreme expectation for a three year old child.
Dr W said and wrote that the father should soften his approach to parenting and that he and the boys would benefit.
The father prepared many outlines, documents, spread sheets and the like on how much the mother had spent on non-essential furniture. A plan was prepared called a projected plan for the parties move to [N].
At paragraph 33 the wife says:
I felt terrorised by a constant barrage of papers and letters and schedules and plans throughout the years of the marriage. When I now see a letter addressed from my Husband I feel fear and panic.
The father controlled every minute detail of the mother’s life: finances; where she went; where she shopped; what she purchased; what she ate; when they had sexual relations; education and discipline of the children during the marriage.
I accept the father’s evidence to Dr W in his first interview that he was feeling much better when seeing the boys for a day and believed he would now get a fair trial. I agree with the father’s position that
Dr W’s initial report had helped the Court. I was satisfied after reading Court Exhibit 1 that if the father had longer time with the boys it would be more enjoyable for them and any risks to the boys were minimised, rather than being increased, by them spending a day with their father.
That day time was suspended on 2 June 2010 prior to the final hearing due to what is now known as “The Fish Tank Incident”.
After the interview with Dr W, [Y] lost his Nintendo DSi. The father formed the view, for reasons I still do not understand, that this was a test Dr W was imposing on the father and the mother.
The father formed a view that he would, as part of this test, go to
Dr W’s premises and retrieve something of Dr W’s, namely a fish from a fish tank located in the waiting room. The father planned this event and researched the best way to collect and maintain the fish in a jar. He obtained a jar, water ager, stones which he cleansed in bleach, a scoop and attended the rooms in a shirt with animals on it and wearing a hat. He attempted to retrieve a fish before being stopped. He had planned to then collect the boys from school and return with them and the fish to Dr W’s rooms.
On the day of the fish tank incident Dr W was not in attendance at his rooms which he shares professionally with others.
Dr W was so concerned by these events he contacted the Independent Children’s Lawyer. The matter was listed in Court and I suspended the father’s time with the children. Dr W wanted to know the reasoning behind this bizarre reaction to [Y] losing his DSi at his rooms. The mother was extremely concerned upon hearing these facts and also because she had received an unusual telephone call from the father.
At the Interim Hearing following this event, Dr W gave evidence by telephone and he requested that the father write to him and explain the reasoning behind his actions on that day. The father did so.
After reading that document Dr W was satisfied that the father was not suffering from a psychosis or paranoid or delusional thinking on that day, and that in some way the father believed this was a test and this was merely his response to that test.
The Final Hearing overtook these events somewhat and Dr W’s confidence that the father was not suffering a psychosis or a delusion at that time enabled me to restore day time with the boys and their father on an interim basis at the conclusion of the Final Hearing.
However the father’s behaviour was eccentric.
On the positive side the father is now seeing a psychiatrist on a regular basis, something he was opposed to doing in 2006, 2007 and 2008.
I accept he is seeing Dr K due to work related stress following the break down of his marriage and not, in one sense, of his own volition. However, the father has respect for Dr K, has confidence in her and understands the principles of cognitive behavioural therapy.
I am confident the boys benefit from spending time with their father. They are no longer infants and it is clear from their expressed views to Dr W that they enjoy the activities they engage in with him.
Dr W’s evidence at an earlier hearing was that the boys can deal with their father’s unusual behaviour more easily than adults as he is their father and for them that is how he is. The father has spent more time with them one on one in the last few years than he did in their early years. I accept the father enjoys his time with the boys as they do with him. The father is able to care for them for short periods day to day and longer periods for holidays, particularly if the days are free enabling the father to have time to engage in his important educative, spiritual and physical activities with them.
Dr W’s evidence was that it may be in the teenage years that some friction will develop between the boys and their father and that [X] is more susceptible to being overborne by his father than is [Y]. Thus it is important not to overexpose the boys to their father’s eccentric and unusual behaviour but enable them to deal with it and benefit from the many wonderful activities and knowledge that their father is capable of sharing with them.
Fortunately their mother’s own emotional strength, balanced approach, calm demeanour and understanding of her sons needs bode well for their future welfare and development.
The two major issues for me is the dosage of time the children can tolerate with their father and sole parental responsibility.
The Law
The starting position is the issue of sole or equal shared parental responsibility. Under section 61DA of the Act the presumption is that it is in the best interests of a child for the child parents to share parental responsibility
The presumption may be rebutted and is not determinative of the time a child spends with a parent.
The presumption may be rebutted if there has been abuse of a child, family violence or, under s.61DA(4), by evidence that satisfies the Court that it would not be in the child best interest for the parents to have equal shared parental responsibility. Section 61DA(4) is relevant here.
Thus the question before me is what is the evidence in this matter which would cause me to rebut the presumption of equal shared parental responsibility as the mother seeks?
The first is that Dr W said sole parental responsibility must reside with the mother.
The father cross examined Dr W on this issue as it is most important to him. That is the sharing with the mother in important decisions regarding the boys health, education and spiritual life
The father asked Dr W to consider the mother having no parental responsibility. Dr W was quite shocked. He said the only way he could see this being best for the boys was if her functioning was so impaired she could not make decisions.
Dr W went on to further say, in confirmation of his recommendation in his report, that he could see no way this important responsibility could be shared because of the father’s obsessive and desiccating approach to debate and discussion. He saw little ability in the father to exercise sole responsibility because of his need to gather all the relevant information, sort and catalogue it which would make it impossible for him to make a timely decision or a decision from the perspective of the child’s needs and thus parental responsibly had to rest solely with the mother.
It is clear that the mother cannot discuss parenting issues with the father as his conduct in the marriage to such discussion has traumatised her. Imposing this burden upon her would only compromise her hitherto high level of parenting and thus be a negative impact on the children. Their mother is the children’s only functioning parent at this time.
The father has demonstrated time and time again that his functioning is severely compromised when he is under stress or in a high phase of his OCPD condition. The boys and reality become lost in his obsessions.
I will make a final determination on this important issue and what orders for the time the children are to spend with their parents is in their best interests after a consideration of the factors in sections 60CC(2) (3)& (4) of the Act that are relevant to this matter.
I do not see there are any issues of family violence.
Commencing at section 60CC(2)(a), the benefit to the children of a meaningful relationship with their parents.
The children’s closest and most attuned parent is their mother and I must preserve that relationship as the children derive maximum benefit from that relationship. It is the mother who has been their sustaining and nurturing parent, not the father.
The children benefit from time with their father and exposure to the wonders of the world that he can show them. However, despite what the father says, the boys only have an embryonic relationship with him and it is early days.
Further, I am concerned that although there is no physical violence in terms of the considerations under section 60CC(2)(b), the children have been exposed to psychological harm from their father’s behaviour. It is not abusive behaviour that is directed to the children or mother as such but rather it is the consequences of the father’s obsessions that have resulted in abuse of the children. The tape on the floor in the flat where toys could not be left, five hour family discussions when the boys were three and five, requiring [Y] at age 3.5 to be silent in the two bedroom flat whilst [X] was being home schooled and the like.
Section 60CC(3)(a) . Wishes of the children.
The father and the mother agree that this is not a matter where children’s wishes would determine the time they spent with each parent. Dr W said at page 30 of his second report that he would not regard their opinions about their wishes as being fully informed.
The boys are attached to both parents, love each parent and enjoy time with their father. [X] has expressed a desire to spend more time with his father and perhaps even half time. I note [X] told Dr W at page 23 of his second report that his father is usually on the computer and is trying to write a book about his computer. Thus the father may be continuing to be unavailable physically to the boys. The boys know their parents are very different people.
Section 60CC(3)(b). Nature of the relationship with parents and others.
Neither child would have a real concept of the consequences of not living with their mother and being parented by her day to day. This has been their experience of parenting and it is their mother with whom they have their closest emotional attachment. Dr W said at page 29 of his second report that the best protection for [X] to prevent his emulating some of his father’s more obsessive and fastidious traits is to ensure he is still predominantly exposed to his mother’s personal and parenting style.
Time with their father has not been of the same deep and nurturing quality as it has been with their mother. The father provides very different experiences for the boys to that which the mother provides. As Dr W said at page 34 of his second report, the mother is a very capable parent. She implemented home schooling, has demonstrated excellent capabilities in meeting the children’s emotional, intellectual and material needs. Her main difficulty has been in dealing with the father.
The father has failed to meet the needs of his children. He left, and continues to leave, that aspect of parental responsibility to the mother on a day to day ongoing basis.
The concern I have, which is echoed by Dr W, for the boys in spending significant, substantial or equal time with their father is that that the father’s parenting is yet to come to life. This is referred to at page 33 of Dr W second report:
His need to structure his parenting probably leads to more problems than opportunities at least in terms of the children’s needs. I think this is an area he would benefit from in talking to a parenting expert with behavioural focus.
The father needs to be more spontaneous, less structured and rigid in his thinking and behaviour and follow the lead of the children at times and just have fun. Dr W said at page 32 of his second report the father will struggle in his parenting with juggling competing priorities, screening the children from inappropriate information and activities and parenting in a balanced way.
Dr W did not see that the boys would come to harm in their father’s care but that their life may be overly organised, they may find his approach stifling as they age, particularly [Y], and the father may have them to grow up too fast.
Section 60CC (3)(c). Ability to encourage a relationship with the other parent.
The father complained that the mother was trying to alienate him from the children. I could find no evidence to support this assertion and neither could Dr W (see page 32 of his second report). All the evidence is to the contrary.
I do not see that the father would intentionally interfere with the children’s relationship with their mother. He would fail with [Y] no matter how hard he tried. However, given Dr W assessment and findings that [X] is close to his father and that he is the more vulnerable child in terms of harm in too great an exposure to his father’s obsessions and over zealous organisations I must be careful with the quantity of time he spends with his father.
Section 60CC (3)(d). The likely effect on any change to the child’s living circumstances.
The orders posed by the father for effectively an equal time arrangement in 12 months would be a significant change to the children’s present and past care arrangements. In his second report
Dr W did not support equal time but an arrangement of four nights a fortnight. In his oral evidence at the hearing he reduced this to one overnight period a fortnight and said the question for the Court was the dosage of time the children could spend with their father without being exposed and harmed by his eccentric behaviour.
The father’s orders are not in the children’s best interests and run counter to the evidence including Dr W’s opinion.
I have no confidence at this time that the father could care for the children at any competent level for a school week on a regular basis. The father’s needs and priorities are still paramount for him and that is inconsistent with getting the boys to and from school, completing homework, washing, ironing, cooking, preparing lunches and the like.
Dr W said, at page 33 of his second report, that the father has a capacity to change but that he needed professional help to do this.
I would add the father must want to change if any intervention is to assist him.
The mother’s position is the children spend one day a week with their father. One day a week is insufficient time. It is important the boys have overnight and day time with their father on a regular basis.
The issue of time is a difficulty for the Court. The mother has alluded to [X] behaving like his father with her and [Y]. Dr W confirmed [X] expressed at the time of the interview that he was closer to his father than his mother. [X] may, in wanting to be in his father’s camp, minimise his relationship with his mother and brother and balance is crucial for him.
Too little time with his father will be counter productive to his ongoing relationship with his mother and too much time may expose him to harm from his father’s obsessive and fastidious behaviour. He must spend good quality time with his dad to assuage his need for his father’s company.
Section 60CC (3)(e). Practical difficulty and expense of a child spending time.
This is not a relevant matter in terms of expense. However as a matter of practicability the evidence supports less rather than more time for the boys and their father due to the father’s obsessive and over zealous approach to parenting and life in general. He cannot yet make the boys a priority if their needs conflict with his needs.
Section 60CC (3)(f). Capacity of each of the parents to provide for the intellectual and emotional need of the children.
The mother has this capacity in both areas in spades. Dr W said in his second report the mother has gone beyond the call of duty in dealing with her husband and her situation.
The father can provide for the intellectual needs of his children but his over zealous approach and need to gather all information and share same with the boys will be counter productive to his aim of maximising his children’s potential.
The father has a very limited capacity to provide for the boys emotional needs as he really has little idea of what they need and has become obsessed with his priorities frequently.
Section 60CC (3)(g). I do not see this factor is relevant to my decision.
Section 60CC (3)(h). There are no issue of aboriginality.
Section 60CC (3)(i). Attitude to the children and responsibilities of parenthood.
Dr W reported at page 32 of his second report that each parent takes their responsibilities seriously. He commented this responsibility was exercised in the father’s head at least up until separation whereas the mother was actually on the ground doing the hard yards.
I find the father is still exercising this responsibility in his head to a large degree and will need professional assistance to bring it from his head to reality. An example is his desire for the children to attend a private Christian school, [P] School. There is no objection to that proposal as such. It is just not practical. The fees and other costs would be at minimum $3,000 to $4,000 dollars a year per child and the father is in a negative financial position. He is still on stress leave and the mother has no money with which to pay these fees.
This is but one example of an excellent parenting idea in theory but which is impracticable and unreal for the present family circumstances. This proposal is also inconsistent with maintaining the boy’s school friendships, connections and stability. The father demonstrated no understanding of the importance to the boys of their school friendships.
The boys are intelligent and bright and doing well at school. Most importantly they have formed good friendships at their local school and it is important these friendships be maintained and fostered. The mother has ensured this has developed and the father would seek to brush this aside to fulfil his need that the children not attend a public school due to his personal philosophies on taxation.
Similarly, the father’s position that he and the boys holiday in America for three months after the conclusion of the hearing reflected poorly on the father’s attitude to parenting and the children. I found at the Interim Hearing that the father's persistence in that application demonstrated his focus was still on his needs and wants and not what is best for the boys.
I found that the father had no concept of what such a lengthy separation from the mother would do to [Y]’s emotional well being, that he would miss his mother and fret for her. I found he had no concept that the mother would fret for the children, be anxious, and that such anxiety may have had a negative impact upon her hitherto exemplary parenting resulting in a negative impact on her sons. I found the father had no understanding of the negative effect on the children in being removed from school for the whole of third term.
Section 60CC (3)(j) and (k). Family violence is not relevant matter.
Section 60CC(3)(l). Making an order least likely to lead to further litigation is not weighing on my mind in this decision other than to address overseas travel in the future for the boys as they have extended family in America.
Section 60CC (3)(m). Any other relevant fact or circumstance. I have covered all the matters I consider relevant.
Section 60CC (4). Although the father failed to financially support the family during the marriage to the best of his ability in part that was due to his illness.
However, I accept the mother’s evidence that he did not take up the time he could have spent with the boys after physical separation due to his all consuming projects.
As I have oft repeated in this judgement, Dr W said the task for the Court was to determine the dosage of time that the boys could cope with in their father’s care.
I put to the mother, through Mr Kenny, and to the Independent Children’s Lawyer that supervised time was counterproductive. From the subpoenaed material it is clear that when the father was having supervised time, he was determined to achieve certain goals with his sons and he crammed so much into the two hours with his agendas that the time became overbearing and was not positive for the boys. The mother and the Independent Children’s Lawyer agreed.
The one day a week time was a more relaxed although the father still had his agendas. The boys were taken to many events and activities and [X] did not like waking up so early on a Sunday and opined that if he spent the night at his father’s he would be able to sleep in.
There is a greater risk to the boys in spending supervised time with their father than unsupervised time. This, however, must be balanced with the mother’s real concerns of the father’s unpredictability and eccentricity which he exposes the boys to at times. There is an uncertainty as to the father’s activities with the boys.
For example, on one Sunday the father and boys flew to Brisbane for the day. The mother was unaware of this event. The father and boys attended various churches and other places of interest and history in the Brisbane area. The father was very proud that he accomplished this feat and was only two or so minutes late for changeover.
The boys had a very full day. There was no harm to the children from this activity but, again, the father could not see that the mother became concerned when she found out the distance the boys had travelled in one day after the event. This conduct again shows the father’s lack of respect for the mother that he failed to inform her he was taking the boys interstate for the day.
This is a parent who engages in activities that are not commonly engaged in by parents and it is clear there is a degree of unpredictability in the father's behaviour and what he will do with the boys. Thus the mother’s concerns of the events and outings being planned by the father for the boys are warranted.
The mother and the Independent Children’s Lawyer wanted an order that the father have further psychiatric intervention and undergo a parenting course. I formed the view that ultimately that that would be futile. The mother and Independent Children’s Lawyer were similarly persuaded for the following.
The reason such an order would be futile is that Mr Scranton has convinced his own psychiatrist not to medicate him. Thus I fail to see what a professional from Relationships Australia could convince him to accept. The best chances of assistance for the father to become child focussed and soften his approach to his children and their mother is cognitive behavioural therapy carried out by Dr K with whom he has professional and respectful relationship at this time.
The father has the capacity to glamour psychiatrists with his interesting and powerful intellect. I see no benefit of interventions until the father wants to change and Dr K is the one health professional who may be able to achieve this.
After a consideration of Dr W’s evidence and reasoning why sole parental responsibility must reside with the mother and the relevant factors under sections 60CC(2), (3) and (4) of the Act, I find that making an order for equal shared parental responsibility is not an order in the children’s best interests for the following.
The father’s lack of capacity to make child focussed decisions arising out of his impaired functioning, inability to take on board any different point of view from the mother to his own, his desiccating of any debate by overburdening with information, his lack of respect in dealing with the mother’s point of view, and the significant negative impact on the mother’s parenting capacity that the implementation on a day to day basis of such an order would have.
The father has much work to do with Dr K if he wishes to share this important responsibility with the mother in the future. At this point in time it cannot be done if I am focusing on what is best for the children.
Having found that it is an order in the children’s best interest to rebut the presumption of equal shared parental responsibility, I need not consider orders for equal or significant and substantial time.
In relation to the issue of time I have formed the view on all the evidence that I will make orders progressing the father’s time to one weekend a fortnight being a Saturday morning to Sunday afternoon each alternate weekend.
This is the dosage of time Dr W said the children could cope with in their father’s care. It is similar to the time he was spending prior to his breakdown and deteriorating functioning in July 2009 and it is a length of time the father can cope with in placing the children’s needs as a priority over his needs.
Holiday time is different and is not regular time and thus can be of a greater length than regular term time. I will make the school holiday order proposed by the Independent Children’s Lawyer and the overseas travel orders.
It is important the children travel to see their extended family. I do not see the father is a flight risk. He is law abiding citizen and I accept Australia is his home. He is quite hostile to America due to its foreign policy and I have very little concern that he would spirit the children away or live in America or anywhere else with them.
I will not make orders for the father to spend the 30 or so special days he seeks with the children, only those proposed by the Independent Children’s Lawyer.
The mother is to have sole parental responsibly including the school the children attend.
I will make orders for holding passports and the like.
I will unusually make an order that if the mother becomes concerned for the children’s well being in their father’s care she may re-list her application at short notice before me by arrangement with my Associate.
I will make this order to minimise the negative impact on the mother’s parenting by my order that the father have weekend time with the children. I accept the mother will be anxious and somewhat fearful for the boys and that [X]’s behaviour may become more challenging for her in the short term. If I leave the Court door open for the mother I trust her fears may be minimised.
I am also hoping that the father’s functioning will improve over time with spending weekends with the children and continuing therapy with Dr K. However I cannot be certain.
This is a balancing act requiring me by order to protect the children from harm in their father’s care due to his impaired functioning and negative impact of that functioning on his parenting capacity and the children’s need to spend regular and quality time with their father who potentially has much to offer them.
I find the orders I have proposed with the various safeguards in place balance these competing factors and are thus orders in the children’s best interests.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding three hundred and four (304) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 26 October 2010
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