Slater and Light
[2011] FMCAfam 1021
•22 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLATER & LIGHT | [2011] FMCAfam 1021 |
| FAMILY LAW – Parenting – trial previously adjourned and interim orders made – psychiatric opinion ordered – trial resumes – psychiatric evidence tested – psychiatric evidence and psychological evidence at odds. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Weapons Act 1996 (Qld) |
| Slater & Slater [2010] FMCAfam 232 Slater & Light [2011] FamCAFC 1 A v. A (1976) VR 298 Peterson & Cochrane [2008] FamCA 597 |
| Applicant: | MR SLATER |
| Respondent: | MS LIGHT |
| File Number: | BRC 12787 of 2007 |
| Judgment of: | Coates FM |
| Hearing dates: | 18 April 2011 & 27 June 2011 |
| Date of Last Submission: | 27 June 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 22 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Lynch |
| Solicitors for the Applicant: | Best Wilson Family Law |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Ms R Lyons |
| Solicitors for the Independent Children’s Lawyer: | Forest Glen Lawyers |
ORDERS
That all previous orders are discharged.
That the children, [X] born [in] 2000, [Y] born [in] 2002 and [Z] born [in] 2003 (“the children”) live with the mother.
That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
That in exercising her sole parental responsibility the mother shall (save in the case of an emergency with the children) advise the father by email of her intended decision and consult with him regarding that decision. The father shall provide any response by email within two days. The mother shall give genuine consideration to the father’s views in relation to the decision, but shall not be bound by his views.
That the mother shall be responsible for the daily care, welfare and development of the children when they are living with her.
That the children spend time with the father up to two hours each fortnight supervised at the [omitted] Children’s Contact Centre on times and days as can be accommodated by the Centre.
That the father is restrained from having contact with the children either by attending at their school or at any centre conducting extra-curricular activity or at any other time.
That the parents will keep each other informed of their residential address and home telephone number and will advise each other of any change within two days.
That the parents will keep each other informed of the names and address of any medical practitioner or educational institute that the children attend and will inform the other of any change within two days.
That the mother will continue family therapy with Mr L. and continue to attend in accordance with the recommendations of Mr L.. The mother shall be solely responsible for the costs of her counselling.
That the children attend counselling with Mr L. and will continue to attend in accordance with the recommendations of the Counsellor. Both parents shall equally share the costs of the children’s counselling.
That this order provides authority for Mr L. and Dr S. to consult with each other regarding their respective therapy with the parents in order to co-ordinate therapeutic interventions for their respective patients, if such consultation is permitted by law or within the ethical considerations of their professional associations.
That the parties be restrained from discussing any adult issues regarding the Court proceedings and/or outcomes with or in the presence of or within hearing of the children.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Slater & Light is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 12787 of 2007
| MR SLATER |
Applicant
And
| MS LIGHT |
Respondent
REASONS FOR JUDGMENT
This parenting matter came before me for trial over two days in February 2010.
I declined to make final orders then, putting into place interim orders for the children [X] born [in] 2000, [Y] born [in] 2002 and [Z] born [in] 2003.
The interim orders limited the children’s time with the father to a supervision centre.
Unlike the vast majority of interim decisions made under the Family Law Act 1975 (the Act), the orders I made were concluded upon tested evidence.
The orders were based on grave concerns I formed for the safety of the children after hearing the evidence. When I say grave concerns, such are within the terms of the parenting provisions of the Act.
The brief background is that the father sought orders for the children to live with him but there be joint parental responsibility, spending every second weekend with the mother.
The mother sought orders for the children to live with her and that she be given sole parental responsibility and that they spend six months supervised time with the father. In her view, the supervised time was necessary to steer the oldest child [X] away from a course of alienation which the father had set out to achieve between [X] and the mother.
The Independent Child Lawyer (ICL) sought orders for the children to live with the mother, but that supervision occur only for two months, such time being enough to re-establish the children’s relationship with the mother and to control the father’s negative views of the mother.
On hearing the evidence, which encompassed far more than what I found to be the father’s negative views and included the father’s possible mental health issues, his self-harming events and unexplained odd acts, I did not accept that there be a time limit to supervision, at least until I knew more about the father’s psychiatric functioning.
I therefore declined to finalise the matter until I received a psychiatric report on the father, from an expert such as Dr M.
I made it very clear that such psychiatric evidence would be open to challenge as is any evidence and not accepted per se, but I also indicated that unless there was some real change in circumstances, the final orders would probably reflect or be similar too the interim orders.
I made that statement because I did not conclude that I would be holding a new trial of the matter, but that I would finish the evidence in the trial I began on 11 and 12 February 2010, therefore this decision must be read in conjunction with my reasons delivered 18 March 2010 (Slater & Slater [2010] FMCAfam 232) and the judgment of the Full Court of the Family Court of Australia delivered 11 January 2011 (Slater & Light [2011] FamCAFC 1), which upheld the Slater & Slater decision. I also did not give directions in the sense that there would be a new trial as opposed to a continuation of the trial.
I had also intended resuming the matter as soon as the psychiatric report was available, however, the father’s appeal combined with matters beyond my control prevented me from doing so.
The matter returned for hearing before me on 18 April 2011 and on
26 June 2011.
My concerns of the father as stated in the previous judgment included:
a)His attempts at self-harm:
i.The wife described witnessing the father with a noose around his neck, kicking a chair he was standing on from beneath him – with him describing the incident as a “ruse”, which was an odd explanation;
ii.Documentary evidence referring to the paternal grandfather’s similar fears for the father (his son);
iii.Documentary medical evidence recording that he had cut his wrists.
b)His leaving of a noose under a canoe in the yard where the children could be confronted by it;
c)His comments to a counsellor that [X] may suicide upon being disciplined in the mother’s care. Although the father denied making any statements to a family counsellor about [X] suiciding, I accepted the evidence from the counsellor that he did make such a statement;
d)The course I found that he set on to alienate the child [X] from the mother – and the probability that he would follow the same course in relation to the younger children;
e)That he had not abided by parenting plans and orders;
f)That he had a very strong view that only he could provide proper parenting;
g)That he insisted that he had Asperger’s disorder, without evidence;
h)That he insisted the children had or were verging on having Asperger’s disorder;
i)That he had acted generally to generally the mother’s parenting of the children;
j)That he had used [X] to spy on and report on incidents and functioning in the mother’s household;
k)That he had an alliance-based relationship with [X] rather than a parent-based relationship;
l)That he had constantly, with the children, focused on their weight in order to undermine the mother’s nutritional care;
m)That he used disciplinary methods on the children such as making them run or jump on the spot and where they had to run faster or jump harder if they did not do so to his satisfaction – a teacher thought the discipline was confrontational and rigid and unhelpful;
n)That he had self-assessed these disciplinary methods by reference to studies he read about, but which had no basis in evidence for me to assess;
o)That he had sought to have the children cause minor damage in the mother’s home, such as stuffing toilet paper into the toilet bowl; and
p)That he had told [X] that he did not know why the mother had left him;
The general effect of the father’s evidence was to deny or to downplay these issues. I found the evidence to be cogent and persuasive and I held that each of these issues directly related to the best interests decision and each presented as some type of threat to the children, either physically or emotionally [s.60CC(2)(b)] in a situation where the benefit of a meaningful relationship between the children and the father [s.60CC(2)(a)].
For the continuation of the matter in initial exchanges between bench and bar I determined, without disagreement, that I was now to consider the new psychiatric and psychological evidence before the court. The concerns I formed were on the application of the provisions of the Act and not personal concerns as such. What I expected to be addressed, what needed to be addressed, were these issues, within the provisions of the Act.
At this point, I remind the parties that I consider the parenting provisions of Act.
I have stated previously, in the first judgment, the issues of law to be taken into account. The Act states that the best interest is the paramount consideration. The stated considerations s.60CC(2), s.60CC(3) and s.60CC(4) are applied to the facts of individual cases. Taken into account are the issues surrounding the presumption that equal shared parental responsibility applies and if such an order is made, determining the living arrangements under s.65DAA of the Act.
As I did on the original judgment, I refer to the various considerations in the Act’s sections by reference in square brackets and I will state that some of the considerations can often be applied to individual facts or sets of facts at the same time. It is a matter of then weighing the evidence and keeping in the background of the decision making process the objects and principles set out at s.60B of the Act.
For this resumed hearing, the father amended the orders he sought, seeking to have the children stay overnight with him every second weekend. The mother opposed time other than when it was supervised, meaning she did not support orders for overnight time. On the untested new evidence, the ICL recommended the children live with the father every alternate weekend. At the end of evidence the ICL put forward two scenarios in written submissions filed 27 June 2011, recommending supervision if there was an unacceptable risk for the children in the father’s care and unsupervised time if such risk was not found.
Pursuant to my order, Dr M produced a report. Her professional opinion was that the father could never shield the children from his negative views of the mother and that the current orders were appropriate.
In response, the father produced an opinion from his psychologist,
Dr S..
She diagnosed him with displaying a variety of Asperger’s disorder features.
Her evidence, part of which I accept, is that he is responding to her psychological treatment of his Asperger’s disorder.
She gave evidence to the effect that she was very experienced in treating people with Asperger’s disorder and that in the last few years intervention has been shown to be of assistance to people suffering from Asperger’s disorder.
Her evidence was that the father’s acts, about which I formed grave concerns, could be explained in that he was not receiving assistance at the time of the acts.
That view coincided with the father’s case both in February 2010 and now. His case is one in which it should be seen that Asperger’s disorder causes him to act in the manner which he does, but that it should be eliminated from the considerations going to the best interests of the children, now that he is receiving treatment [s.60CC(3)(m)].
Whether I adopt that view of course is a matter of what all of the evidence is stating and to that effect Dr M conceded that Dr S. had more experience with Asperger’s disorder than she did.
Dr M did not hear Dr S. give evidence but she read her report.
Dr M’s accepted the evidence that the father probably suffered from Asperger’s disorder and agreed that assistance to the father may be of help to him.
She accepted that there may be a growing body of psychological evidence showing that the treatment as suggested by Dr S. may be beneficial.
But her evidence then diverged from that of Dr S..
Dr M said a lack of recorded incidents in relation to the children while attending the supervision centre since my orders were made may indicate that the father may be responding to his psychological treatment.
But she said that he may well be able to control himself during the two hour visits so that he does not descend into overt negative opinion of the mother in front of the children.
While there were no incidents reported at the supervision centre, there were two events which Dr M was questioned about. The father made two complaints to the child safety unit of the Department of Communities (DOCS). The reports require analysis because they go directly to the relationship consideration [s.60CC(3)(b)] and capacity [s.60CC(3)(f)], in terms of functioning of the father, to provide for the children.
The father complained in about August 2010 that the children were witnessing pig shooting and he explained that he did not support the maiming of animals and he did not like the description of the death of animals given to him by his children.
In March 2011, about two weeks before the continuation of the hearing, he also complained to DOCS about his child [X] being given alcohol.
Both complaints were based only on what the children told him during their supervised time. The father said that the descriptions of both pig hunting and drinking were so detailed that they could not make up such stories.
He then said as a [occupation omitted] he had a duty of care to children so that he was required to report these things to DOCS. This self-introduced statement of being a [occupation omitted] is relevant because he said that he recognised that people regard him as weird and he explained that it was not in the sense that there was something wrong with him but that he was different. He explained that he was different in that he did not watch a lot of television, but as a [occupation omitted] he still had the best interests of not only his children but other children at heart, hence the connection to being a [occupation omitted].
The father gained the [omitted] qualifications just before the start of the trial in February 2010 and I am aware that [occupation omitted] are taught about legal concepts generally referred to as duty of care. The term duty of care has legal meaning, Osborn’s Concise Law Dictionary, Eleventh Edition stating: “…the concept of duty serves to define the interests that are protected by the tort of negligence. It determines whether the type of loss suffered by the plaintiff in the particular way in which it occurred can, as a matter of law, be actionable”. There must be a proximate relationship, a duty owed and a standard of care.
I am not being pedantic when referring to definitional explanations of a duty of care but I need to assess exactly what the father is saying. From any angle I examine his words, I cannot reconcile his evidence with any a duty of care owed to his children in the described circumstances, but his evidence was to the effect that he had the best interests of all children at heart.
I accept it is the father’s belief that he owed a duty of care to the children. It appears that his understanding of a duty of care is a general duty to account for a child’s circumstances if he forms the view that those circumstances do not accord with his own views. How he formed his beliefs is not known but all of this disjointed type of evidence more probably than not is linked to his psyche and functioning.
In examining this belief against his attitude to and responsibilities shown as a parent [s.60CC(3)(i)] and his ability to facilitate a continuing close relationship [s.60CC(3)(c)] under the Act, these were matters he should have raised with the mother, whether at the time she was exercising sole parental responsibility or not.
I am not stating that he should not raise issues of danger or risk with child safety officers, but there is no way the evidence could suggest that either alleged situation put the children at risk.
I can conclude that there was no evidence to show that any illegal dangerous activity was taking place contrary to the provisions of the Weapons Act 1996 (Queensland) or any incident with alcohol which would be a best interests consideration.
The issue is one in which there is possibly a dispute or debate between parents as to their competing views in relation to the use of firearms and a one-sided allegation that the mother allowed [X] to drink alcohol. I say possibly a dispute because I am not really sure that it is a real dispute or whether it is part of the father’s psyche and functioning generally.
The mother, self-represented, questioned the father in relation to these issues and especially drinking. Her clear strategy was to have him state whether he actually believed that she would endanger her children.
In his usual manner of including in his answers information he wanted the court to hear, the father said he alerted staff at the contact centre about the issues of pig hunting and drinking, and a staff member had said words to the effect:
“Children say the darndest things.”
In a very roundabout way, the father finally stated that he did believe that the children had been taken pig hunting and he did believe that [X] had been given alcoholic drinks. That he believed the mother would purposely give the child alcohol creates an unquestionable gulf between his position and the mother’s position.
On pig hunting he stated the children were “city folk” and he did not believe it in their best interests to go pig hunting.
I can understand that a parent who was opposed to an activity such as pig shooting would hold strong views that their children should not be exposed to such activity.
However, the father recognised that the mother’s new husband, Mr L, was from the bush, worked in the bush on occasion and that the children lived on the outskirts of Toowoomba.
If the children have experienced pig shooting, and that was never proven, such a vermin control activity is merely a fact of life in rural Queensland and these parties live in Toowoomba which is easily described as a rural city, centre for major cropping and livestock agricultural industries.
As to the drinking, again there is no other evidence other than what the father states the children have stated, with mother denying giving the child [X] alcohol.
I accept the mother’s evidence.
My view of the evidence is the father jumped to conclusions on what the children have said and I will recognise that, as was repeated by the father, children can say the darndest things.
But that is not the issue here.
The real issue is the father’s response.
He did not raise these issues with the mother, saying he was prevented by orders.
No orders prevent him from raising a real child safety concern with authorities or his lawyers.
He said he raised the issue with his lawyers who advised him to let it go and to contact DOCS. I note the conflicting alleged advice.
His lawyers were not in the witness box. I cannot imagine that in parental proceedings that should a complaint come to a parent’s lawyer – that the other parent was acting in a manner which could have harmful effects for a child – that correspondence of the allegation would not be posted of faxed or e-mailed immediately.
On both issues, it is the controversy between the parents, the continued disputation which arose on the father’s complaints which is more likely to be against the children’s best interests than if the activities alleged had occurred.
While Dr S. had the view that people with Asperger’s disorder are basically honest people, that also is not the particular issue. Apart from the father hardly ever being able to explain things in a straightforward manner, which indicated he was being careful of answers he gave, he could not escape the fact that even when seeing the children in a supervised centre he could not stop himself from making a complaint about the mother to authorities.
Dr M said his complaints could indicate that he cannot control himself.
So the evidence is that the father still holds and cannot escape from his deeply held views of negativity towards the mother. I describe the complaints as negative views because they were aimed at casting doubt on her parenting ability and decisions.
I am now faced with two opposing professional opinions, that of Dr M and that of Dr S., in relation to the father’s parenting ability and actions.
Dr M held the opinion, and not in a critical sense, that Dr S. as a treating clinician was in a very different position compared with that of an expert evidential clinician, in that the treating professional was always putting forward a view to help their patient.
That brings me to exactly what Asperger’s disorder is.
No party, especially the father, put before me a detailed explanation of what is involved. I will then turn to the American Diagnostic Association, which produces the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, commonly known as the DSM-IV. It is commonly used in Australian court proceedings and I do not think there can be any controversy at all in referring to the manual for an understanding of the condition the father says he has.
The manual states:
“Diagnostic features - The essential features of Asperger's Disorder are severe and sustained impairment in social interaction (Criterion A) and the development of restricted, repetitive patterns of behavior, interests, and activities (Criterion B). The disturbance must cause clinically significant impairment in social, occupational, or other important areas of functioning (Criterion C). In contrast to Autistic Disorder, there are no clinically significant delays or deviance in language acquisition (e.g., single non-echoed words are used communicatively by age 2 years, and spontaneous communicative phrases are used by age 3 years) (Criterion D), although more subtle aspects of social communication (e.g., typical give-and-take in conversation) may be affected. In addition, during the first 3 years of life, there are no clinically significant delays in cognitive development as manifested by expressing normal curiosity about the environment or in the acquisition of age-appropriate learning skills and adaptive behaviors (other than in social interaction) (Criterion E). Finally, the criteria are not met for another specific Pervasive Developmental Disorder or for Schizophrenia (Criterion F). This condition is also termed Asperger's syndrome. The impairment in reciprocal social interaction is gross and sustained. There may be marked impairment in the use of multiple nonverbal behaviours (e.g., eye-to-eye gaze, facial expression, body postures and gestures) to regulate social interaction and communication (Criterion A1). There may be failure to develop peer relationships appropriate to developmental level (Criterion A2) that may take different forms at different ages. Younger individuals may have little or no interest in establishing friendships. Older individuals may have an interest in friendship but lack understanding of the conventions of social interaction. There may be a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., not showing, bringing, or pointing out objects they find interesting) (Criterion A3). Lack of social or emotional reciprocity may be present (e.g., not actively participating in simple social play or games, preferring solitary activities, or involving others in activities only as tools or "mechanical" aids) (Criterion A4). Although the social deficit in Asperger's Disorder is severe and is defined in the same way as in Autistic Disorder, the lack of social reciprocity is more typically manifest by an eccentric and one-sided social approach to others (e.g., pursuing a conversational topic regardless of others' reactions) rather than social and emotional indifference.” As in Autistic Disorder, restricted repetitive patterns of behaviour, interests, and activities are present (Criterion B). Often these are primarily manifest in the development of encompassing preoccupations about a circumscribed topic or interest, about which the individual can amass a great deal of facts and information (Criterion B1). These interests and activities are pursued with great intensity often to the exclusion of other activities. The disturbance must cause clinically significant impairment in social adaptation, which in turn may have a significant impact on a self-sufficiency or on occupations or other important areas of functioning (Criterion C). The social deficits and restricted patterns of interests, activities, and behaviour are the source of considerable disability. In contract to Autistic Disorder, there are no clinically significant delays in early language (e.g., single words are used by age 2, communicative phrases are used by age 3) (Criterion D). Subsequent language may be unusual in terms of the individual’s preoccupation with certain topics and his or her verbosity. Difficulties in communication may result from social dysfunction and the failure to appreciate and utilize conventional rules of conversation, failure to appreciate nonverbal cues, and limited capacities for self-monitoring. Individuals with Asperger’s Disorder do not have clinically significant delays in cognitive development or in age-appropriate self-help skills, adaptive behaviour (other than in social interaction), and curiosity about the environment in childhood (Criterion E). Because early language and cognitive skills are within normal limits in the development during that time, although upon detailed interviewing they may recall unusual behaviours. The child may be described as talking before walking, and indeed parents may believe the child to be precocious (e.g., with a rich or “adult” vocabulary). Although subtle social problems may exist, parents or caregivers often are not concerned until the child begins to attend a preschool or is exposed to same-age children; at this point the child’s social difficulties with same-age peers may become apparent. By definition the diagnosis is not given if the criteria are met for any other specific Pervasive Developmental Disorder or for Schizophrenia (although the diagnoses of Asperger’s Disorder and Schizophrenia may coexist if the onset of the Asperger’s Disorder clearly preceded the onset of Schizophrenia) (Criterion F).”
I merely refer to this to gain an understanding of the disorder. I am not stating that all of that description applies to the father and I make no conclusion as to the level of the disorder which should be ascribed to him, if indeed such a measurement could be made, and I note that Dr S. did not list the variety of features the father has displayed to her.
It is important to have an understanding of the disorder in arriving at the appropriate parenting orders which would be in the best interests of the children [s.60CA], keeping in mind the beneficial relationship and the protective considerations [s.60CC(2)(a) and (b)]. In treating the father, Dr S. in her report said he could have unsupervised time with the children and, in fact, family therapy was necessary in order to assist both the children and the father and she put it in terms of being in the best interests of the children and the father.
Within the terms of the Act which I have to consider, I have concerns about her evidence, because:
a) She had not seen the children for some time;
b) She knew they were in the professional care of Mr L., who gave evidence in this matter;
c) My previous orders anticipated Dr S. and Mr L. conferring; and
d) She did not contact Mr L. on the ground that the children were Mr L.’s clients – a professional/ethical issue.
My dilemma is two fold:
a)There was no evidence to say the father’s sudden turn around, because that is how I would describe Dr S.’s evidence of her treatment of the father’s condition, could be sustained; and
b)
How her recommendation for family therapy could be considered a best interests decision for the children to spend unsupervised time with the father, without her being able to consult Mr L.
Mr L’s position is crucial because the father has previously criticised him.
So I am left with no positive pathway in order to proceed down the track of family counselling, because the treating psychologist cannot say what the effects on the children may be [s.60CC(3)(d)], especially if such counselling does not work. This is not a matter where I can take a chance that family counselling may work. It is a matter about which I needed specific and considered expert evidence taking into account the effects on the children should such counselling fail and whether that would cause more harm to children who have experienced a very dysfunctional, chaotic family, by and large due to the father’s actions.
I return to the evidence of Dr M, who said in the clearest of terms that a treating clinician would always give evidence to assist their client.
That can be understood from the ethical point of view because a treating clinician must give every assistance to their client.
It is not a position to be criticised and Dr M was not criticising Dr S.’s position. She was merely giving a professional opinion, with the family law dispute as the context, of the position Dr S. occupies in being the treating psychologist for the father for his Asperger’s disorder.
I have indicated that Dr M made her decision against the background of the family law dispute. Dr S. did not make her recommendation taking into account each and every consideration stated in the Act, and although that does not invalidate her evidence, it is an issue I must consider [s.60CC(3)(m)] because I must make a decision in the best interests of the children as the paramount consideration [s.60CA].
It is very clear that Dr S. does hold concerns for the family and the issues going to the breakup of the family unit, but that does not necessarily take into account the very specific considerations stated in the Act at s.60CA being the best interests decision and s.60CC(2), (3) and (4) considerations, which have to be determined with the presumption of equal shared parental responsibility and the living arrangements.
As a general statement, family consultants take those considerations into account when giving professional reports because they understand the parameters in which a Court makes a decision.
This is where the dilemma of comparing two professional reports, each with different emphasis on the father’s mind, is perhaps burdened with some difficulty.
The evidence as a whole points to a risk, the risk being that the father’s beliefs or acts will cause emotional damage to the children. I will go as far as stating that the risk will cause more emotional turmoil for the children, [X]’s past rejection of the mother and [Z]’s past troubled behaviour at school being present examples that these children are at the limits of coping with the parental situation. Evidence of both children now is that they have settled down, that is, responded to the orders in place although the father complaints that they are rejecting him in the supervised centre.
What I must do then is take each report and consider it on its own merits as against the evidence.
But there is another complication to the situation I need to state before doing so.
It became apparent that the father has not stated all of the evidence which is relevant [s.60(CC)(3)(m)] to his circumstances since the orders of February 2010 were made.
He stated in oral evidence that he has a 21-year-old man, Mr O, living in his house and that had been for the last eight months.
The father described the arrangement as one where he had been of great assistance to Mr O in straightening out his life.
The little evidence before the Court of that arrangement was a disjointed explanation that Mr O suffers a physical disability where [omitted] and he was hanging out with the wrong crowd and getting into trouble, although the father said that he did not know whether Mr O has been in trouble with police. He then put it more in the terms of hanging in the back seat of cars and acting like a hooligan.
On explaining the relationship, the father stated words to the effect that he met Mr O through a “friend of a friend of a friend of a friend”.
The father said that if the children come back into his care Mr O would be out of the house within an hour.
The relevance of this issue is that the father has continued to put forward a scenario where his abilities, whatever they are, are such that they can help people, the inference being that he is in a position to provide parenting within the objects and principles of the Act. That assisting people and parenting cannot be regarded as being one and the same thing but that is not to the point because what is in issue is the father’s beliefs. The case centred on how the primary considerations [s.60CC(2)] could be implemented through orders, as a best interests decision, in the light of the father’s functioning and this particular evidence did not give me confidence that he is functioning in a manner where I would be satisfied as to the orders which he seeks. It is a consideration of other matters [s.60CC(3)(m)].
On examining all of the evidence I have referred to, I am satisfied that the question which arises is a question of risk. Counsel for the ICL,
Ms Lyons, helpfully set out in her written submissions filed 26 June 2011, folio 78 on the court file, relevant statements in the authorities which are to the effect that orders should be made taking into account the type of risk, expressed as unacceptable risk. This may result in no time, supervised time or other order which ameliorates or reduces the possibility of the identified risk occurring.
The risk is that of emotional harm as identified by Dr M. I have also not forgotten evidence of self-harm which I am not totally persuaded should be put aside from my considerations, on the basis that I did not accept the father’s evidence in relation to those matters. The emotional harm itself takes the form of the imposition of negative views of the mother, a chaotic regime for the children and steps to a form of alienation. I say form of alienation, because alienation could be expressed either as a total rejection of a parent or partial rejection of a parent, particularly pertaining to [X]. In light of the evidence of [X]’s former view of the mother caused by the father’s interference with [X]’s views, views which have been able to be changed due to the restrictive orders I previously made, I would assess the magnitude of the risk as being in the severe category. I would also make the assessment that the father would, if not for interventions, act in the same manner with the younger children.
The other risk is discernible from the father’s self-harming acts combined with his comments to Mr L. about his views that [X] may suicide. This risk, in my view, is in that category which cannot be substantially or particularly described, and as it was put in A v. A (1976) VR 298, quoted in Peterson & Cochrane [2008] FamCA 597, such may be described as "an element of risk”. The evidence is conflicting, a psychiatric report stating that the father is not suicidal, but various documents uncovering fears at different times that he was suicidal, as well as the mother’s evidence of finding him with a noose around his neck and where he kicked a chair from beneath himself.
While it could be argued that I should make a decision in the father’s favour because of conflicting evidence which could raise doubt as to the father’s real psyche, this is not a criminal proceeding in which a reasonable doubt is exercised in favour of an accused person. This is a civil proceeding under focused legislation in which the decisions to be made must be exercised in the best interest of the children as the paramount consideration [s.60CA], based on the stated considerations. It cannot be the case that where real doubt arises as to whether a parent has the capacity to self-harm, such evidence extending to an unspecified involvement of the children including comments about [X]’s potential to suicide and the leaving of a noose in the yard, that a decision ought to be made in the father’s favour because such a decision would not be one made in the children’s best interest.
The ICL’s written submissions also outlined concerns that the father may have been less than candid in giving evidence about the pig shooting and alcohol consumption and that generally his evidence was unconvincing, blaming others for the state of affairs. In terms of the DSM description of Asperger’s disorder, his presentation can be understood in context.
So all of the acts and facts emanating from the father’s behaviour, whether caused by Asperger’s disorder are not, are those which are in-issue and those which raise the risk issues.
On the balance of probability the evidence strongly suggests that the father – despite receiving assistance for Asperger’s disorder - just cannot prevent himself from acting on his negative views to the detriment of the children – the two recent DOCS complaints being present, unmistakable events – and these acts are directly relevant to the parenting issues traversed during this hearing.
I am not going to implement a regime for the children where they will spend unsupervised time with the father, the evidence not showing as to how such orders would be in the best interests of the children. At paragraph 28 above I referred to the father’s case that Asperger’s disorder should be eliminated from the considerations going to the best interests of the children because he is receiving treatment, but that is at the very hub of this case and it is up to him to bring before the Court evidence that her can control himself.
In conjunction with my reasoning given in the first judgment, I am not going to make an order for equal shared parental responsibility. The father will not be able to control his negativity and will work against the mother’s decisions and cause confusion and more chaos – a word used in the description of the family circumstances – for these children. I do not see how the children could then develop pursuant to the objects and principles expressed in the Act [s.60B].
For the second time, the first being stated in the first judgment, how long can supervision be put in place for? It must remain until the children are at an age where they can protect themselves from the father’s views which completely undermine the mother.
A further complication for these children was the position adopted by the paternal grandparents. When evidence was heard in February 2010, they had taken an extremely hardline hostile view of the mother, despite the mother’s concession that she previously had a workable relationship with them and believed that such would develop again at the end of the matter. Despite the matter dragging on for reasons stated above, the grandparents did not give new evidence in relation to the father’s (their son’s) response to psychological treatment and how they could assist in the parenting issues. I had found that the father is responsive to the paternal grandparents. I was hoping for evidence that the relationship they have with the mother was under repair, because they could have played a singularly important role in this matter. However, they have not taken part and so they can provide no conduit in which these children can be assisted to have the beneficial relationship with the father which he craves and which is a prime object of the Act [s.60B (a), s.60CC(2)(a) and s.60CC(3)(m)].
As to particular orders, I am changing the weekly time the children have spent with the father to fortnightly time. It has become totally impractical for them to be taken to a contact centre each week in that they need to be able to cope with the situation as well as needing to attend to extracurricular activity outside school. That type of activity occurs at weekends.
It is important that the father be informed of decisions taken for the children and to that effect he needs to be advised of intended decisions and asked to comment. While this order is made against the background of an order for the mother to exercise sole parental responsibility, I have made it to ensure that she is aware of the father’s views on certain decisions. I am not excluding him from that aspect of the children’s lives, ensuring that his views are genuinely considered.
I have left the order in place for Dr S. to consult Mr L.. It cannot be the other way round, because Dr S. is treating a recognised condition and she is in the position to determine the interests of the father and how she can assist him. I cannot take that issue further because of her evidence of the professional ethical position that the children are
Mr L.’s clients. I suspect there is room for movement there.
Lastly, are these orders those least likely to lead to the institution of further proceedings [s.60CC(3)(l)]? That depends on evidence of the father’s ability to provide parenting in line with the parenting provisions of the Act. In a case such as this, it could never be in the children’s best interests to cut off all avenues for judicial reassessment of the father’s psychological status – matters relevant to the best interests decision.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 22 September 2011
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