Stojanovski and Stojanovski (No. 2)

FAMILY COURT OF AUSTRALIA

STOJANOVSKI & STOJANOVSKI (NO. 2)

[2007] FamCA 1442

FAMILY LAW – CHILDREN – Psychological abuse of children – Alienation from one parent – Application of presumption of equal shared parental responsibility – Supervised time – Opportunity to access psychiatric treatment

Family Law Act 1975 (Cth)

APPLICANT:

Mr Stojanovski

RESPONDENT:

Mrs Stojanovski

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

3496

2005

DATE DELIVERED:

13 December 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

15 June, 27 August, 29, 30, 31 October, 1 November, 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT

FATHER:

In person

COUNSEL FOR THE RESPONDENT

MOTHER:

Ms. Buchanan

SOLICITOR FOR THE RESPONDENT

MOTHER:

Mahonys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr. Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

T. J. Mulvany & Co

Orders

That all parenting orders relating to the children of the marriage S born … June 1995, A born … September 1997 and M born … July 2002 (“the children”) and all injunctions relating to the children or the parties be discharged.
That the children live with the wife and she have sole parental responsibility for them.
That until further order the husband have no time or communication with the children save pursuant to these orders.
That until further order the husband be and is by himself, his servants and agents, restrained from removing, or attempting to remove, the children or any of them from the possession of the wife or the possession of a supervisor appointed pursuant to paragraph (8) hereof or the possession of any person with whom the wife has placed them or authorised their placement, and if the husband does so remove or attempts to remove the children or any of them :
(a) he may be arrested without warrant; and
(b) the provisions of paragraph (5) hereof are forthwith suspended, until further order.
That until further order the husband have time with the children on each alternate Sunday, from 10:00 am. until 2:00 pm., and that all such time be strictly supervised pursuant to these orders by a worker employed by Aiding & Caring, and all costs relating to such supervision be borne by the husband.
That during all periods of time with the children pursuant to these orders the husband be and is, by himself, his servants and agents, restrained from :
(a) saying to the children or in their presence or hearing, or allowing any other person to say to the children or in their presence or hearing, anything critical of the wife, members of her family, her friends or the children’s school teachers, doctors, counsellors or like professionals;
(b) making any comment referable to their mother’s parenting (past, present or future) to the children or in their presence or hearing, or allowing any other person to make such a comment to the children or in their presence or hearing; and
(c) making any comment referrable to these proceedings to the children in their presence or hearing or allowing any other person to make such a comment to the children or in their presence or hearing.
That the husband’s time with the children commence on the first Sunday on or after 22 December, 2007 on which all of the prerequisites and conditions contained in paragraph (8) hereof have been met.
That prior to the commencement of the first period of the husband’s time with the children :
(a) the director or manager (or person in like position) of Aiding & Caring advise the parties and the independent children’s lawyer in writing of the following:
(i) The name of the worker who has been appointed to supervise the time (“the supervisor”) and of a telephone number at which he or she can be contacted;
(ii)That the supervisor has read a copy of :
(A) the orders made this day;
(B) the reasons for judgment published this day;
(C) the report of Dr. E dated 14 September, 2006; and
(D) the family report of Ms. J dated 24 August, 2007;
and has agreed to supervise the husband’s time with the children on the conditions set out in paragraphs (6), (10), (11), (12), (13), (15), (16), (17), (19), (22), (23) and (33) of these orders; and
(iii)The costs of the supervision and confirmation that the husband has agreed to pay such costs;
(b) the supervisor introduce him or herself to the independent children’s lawyer (by telephone or in person) and to the wife (in person) and meet the children at the home of the wife or such other place as the wife and supervisor agree.
That if a different person to that advised pursuant to paragraph (8)(a)(i) hereof is to supervise the husband’s time with the children, then prior to the first period of supervision by that person the prerequisites and conditions contained in paragraph (8) hereof be met in respect of that new supervisor.
That the husband’s time with the children take place at a place or places agreed between the husband and supervisor PROVIDED THAT it not be outside a twenty kilometre radius of the wife’s home.
That the children be collected by the supervisor from and returned to the wife’s home, or such other place as the wife and supervisor agree, and the husband be and is hereby restrained from attending at or within one kilometre of the agreed changeover point on a day on which he is to spend time with the children.
That the husband abide by all lawful directions of the supervisor and by all the terms of his agreement with Aiding & Caring and in the event he fails to comply with a lawful direction and/or a term of his agreement with Aiding & Caring, paragraph (5) hereof be suspended forthwith, until further order.
That the supervisor must intervene and cancel the balance of a period of time with the children if the husband says to the children or in their presence or hearing anything critical of the wife, members of her family, her friends or the children’s school teachers, doctors, counsellors or like professionals, or makes any comment referrable to the wife’s parenting (past, present or future).
That if two periods of the husband’s time with the children have been cancelled pursuant to paragraph (13) hereof, and a third period is cancelled pursuant to that paragraph, then paragraph (5) hereof shall be suspended forthwith, until further order, and it is not necessary for any of the periods to be consecutive.
That the supervisor must explain to the children that if any one of them tells or attempts to tell the husband, the supervisor or any other person present at the time that the wife, members of her family or any of her friends have :
(a) physically abused him or her;
(b) locked him or her in a room;
(c) yelled at him or her;
(d) restricted his or her practise of religious belief or denigrated his or her religious belief; or
(e) otherwise acted in a way which is verbally or emotionally abusive;
the time all the children have with the husband may be terminated.
That if the children or any of them tell or attempt to tell the husband, the supervisor or any other person present at the time that the wife, a member of her family or a friend of the wife, has acted in a way described in paragraph (15) hereof then the supervisor must warn all the children that if there are any further comments of that sort, the period of time with the husband will be terminated.
That if the supervisor has cause to and does warn the children pursuant to paragraph (16) hereof on two occasions during a period of time with the husband, and then has cause to warn the children again (within the same period of time), then on that third occasion the supervisor shall terminate the period of time forthwith.
That if four periods of the husband’s time with the children are terminated pursuant to paragraph (17) hereof, then paragraph (5) be suspended forthwith, until further order, and it is not necessary for any of the periods to be consecutive.
That no person shall accompany or join the husband on the first three periods of his supervised time with the children and thereafter (but only if the supervisor agrees) another adult and/or two other children may be present PROVIDED THAT the supervisor must intervene and act as set out in paragraphs (13) and (17) hereof if any such adult or child engages in any behaviour which, if engaged in by the husband or children, would lead to the termination of that period of his time with them.
That the husband may communicate with the children :
(a) by no more than one letter to each child in each fortnight and such letter be no longer than two A4 pages; and
(b) by a card and/or small gift to each child on the child’s birthday, at Christmas and at Easter;
PROVIDED THAT
(c) such letters, cards and gifts be sent by ordinary pre-paid post addressed to the wife’s address; and
(d) the wife be at liberty to inspect and withhold any such letter, card or gift if, in her absolute discretion, she believes it represents a risk to the emotional or physical health of a child and without limiting her discretion, such item will represent such a risk if it refers in any way to any of the matters or topics of conversation referred to in paragraphs (6), (13) and (15) hereof, and the wife shall forward any item so withheld to the independent children’s lawyer.
That until further order the husband may otherwise (and additionally) spend time or communicate with the children as expressly recommended in writing by a psychiatrist, psychologist, therapist, counsellor or like professional treating the children or any of them.
That until further order the husband be and is hereby restrained, by himself, his servants and agents, from:
(a) approaching within 200 metres of:
(i)the wife’s home and any premises at which the wife works, from time to time;
(ii)the wife’s parents’ home;
(iii)a school at which a child is enrolled; and
(iv) a place (including a school, club or sporting venue) which a child is attending for school or extra-curricular activities;
(b) telephoning, emailing or using any form of telephone, wireless or electronic communication to communicate with a child;
(c) speaking with a child on a telephone or through the internet, regardless of who initiated the call;
(d) assaulting, harassing or abusing (orally or in writing) the wife or contacting or attempting to contact her in any way, save that he may be involved in counselling or therapy (pursuant to paragraph (31) hereof) which brings him into contact with the wife if :
(i)that is recommended to the wife by the service or expert; and
(ii)the wife consents; and
(e) taking or allowing any other person to take the children or any of them to a medical practitioner, psychologist, therapist, counsellor or like professional.
That if a child becomes ill or suffers an injury during a period of time with the husband and such illness or injury requires, in the opinion of the supervisor, swift medical attention :
(a) the balance of that period of the husband’s time with the children shall be cancelled;
(b) the supervisor shall contact the wife and make all necessary arrangements with her to procure medical treatment; and
(c) if the supervisor cannot contact the wife, he or she may take whatever steps are necessary to procure swift medical treatment PROVIDED THAT the husband shall not accompany the child or children to any place at which such treatment is sought.
That within two months of his first period of time with the children the husband consult a psychiatrist and commence and maintain such therapeutic treatment or other intervention (including medication) as recommended by that psychiatrist, or such other psychiatrist or psychologist as is recommended by that psychiatrist, and the husband provide to each such psychiatrist or psychologist a copy of :
(a) the orders made this day;
(b) the reasons for judgment published this day;
(c) the report of Dr. E dated 14 September, 2006; and
(d) the family report of Ms. J dated 24 August, 2007;
and from two months after his first period of time with the children the father’s time with the children pursuant to paragraph (5) hereof is conditional on his compliance with this paragraph and if the husband does not comply with this order, or the provisions of paragraphs (27) and (28) hereof, paragraph (5) hereof shall be suspended forthwith, until further order.
That the husband abide by all lawful directions and recommendations of the psychiatrist or psychologist relating to treatment or other interventions including directions to take medication.
That at his first appointment with a psychiatrist or psychologist the husband shall provide to that psychiatrist or psychologist an irrevocable authority authorising him or her to discuss his diagnosis, treatment and prognosis with the wife and the independent children’s lawyer and to provide reports, as requested by the independent children’s lawyer, and the husband shall be responsible for the costs (if any) of the psychiatrist or psychologist of any discussions or reports pursuant to this order.
That the husband advise the wife and the independent children’s lawyer in writing of the name and address of each psychiatrist and psychologist consulted by him, no later than 24 hours after his first appointment with such psychiatrist or psychologist.
That at the expiration of four months of psychiatric or psychological treatment or other intervention pursuant to this order, the psychiatrist and/or psychologist provide a written report to the wife and the independent children’s lawyer and without limiting the content of such report it shall contain information about :
(a) any diagnosis of the husband;
(b) the number and dates of the husband’s attendances;
(c) whether the husband has attended each scheduled appointment;
(d) any medication prescribed and whether in the opinion of the report writer, the husband has taken such medication, as recommended; and
(e) the prognosis of the husband.
That as soon as practicable the wife do all things reasonably necessary to ensure S’ attendance at the local Child and Adolescent Mental Health Service (CAMHS) or such other service or expert recommended by CAMHS for assessment and, if recommended, treatment or therapy and that each professional involved in such assessment and treatment or therapy be provided with a copy of the documents described in paragraph (24) hereof.
That the wife obtain such assessment and, if recommended, treatment or therapy for A and M as she determines to be appropriate.
That the husband may, if requested in writing by CAMHS or another service or expert involved in treatment of or therapy with the children, be involved in such treatment or therapy to, and only to, the extent specifically requested by such service or expert PROVIDED THAT a copy of each such written request from a service or expert be provided to the wife and the independent children’s lawyer at the same time as provided to the husband.
That if a child suffers a serious illness or serious injury (other than during a period of the husband’s time with the children) the wife advise the husband as soon as practicable.
That until further order each of the parties be and is hereby restrained by him or herself, and by his or her servants or agents, from:
(a) applying any form of physical punishment to the children;
(b) discussing these proceedings with or in the presence or hearing of the children (save at the request of an expert involved in the treatment of a child pursuant to these orders); and
(c) denigrating the other or any member of the other’s family or other’s friends in the presence or hearing of the children.
That until further order the husband, by himself, his servants or agents be and is hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children S born … June 1995, A born … September 1997 and M born … July 2002 or either of them from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place 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 further order of the Court.
That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
That the wife forthwith authorise the principal of the schools attended by S, A and M to send to the father, at his expense (if any) and by ordinary pre-paid post :
(a) a copy of each school report for the children; and
(b) an order form for photos of the children.
That as soon as practicable the wife provide a sealed copy of these orders to the principal of each school attended by S, A and M from time to time.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”), compliance with these orders be supervised, as far as practicable, until the adjourned date, by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court and that such supervision be reportable and a report of it be prepared and released to the parties by 11 July, 2007.
That a copy of the reasons for judgment delivered this day may be provided to :
(a) Ms. J;
(b) Dr. E;
(c) the principal of a school attended by a child and, in his or her absolute discretion, any teacher or other professional working with the child through the school;
(d) any psychiatrist, psychologist, counsellor or like professional treating or working with a child; and
(e) the Department of Human Services and Victoria Police (in the event further notifications or allegations are made against the wife).
That there be liberty to apply in the event Aiding & Caring has failed to advise the name of a supervisor by 11 February, 2008.
That the applications for orders for residency and parental responsibility be otherwise dismissed.
That the question of the husband’s time and communication with the children be otherwise reserved and adjourned to 25 July, 2008 at 9:30 am. for directions.
That IT IS REQUESTED the independent children’s lawyer and Ms. J meet with the children as soon as practicable to explain to them the nature and effect of these orders and the wife do all things reasonably necessary to arrange for the children to attend on Ms. J at this Registry of the Court on a day and time to be nominated by her.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Stojanovski & Stojanovski is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3496 of 2005

MR STOJANOVSKI

Applicant Father

And

MRS STOJANOVSKI

Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Mr and Mrs Stojanovski married in November 1992. They have three children; S is 12, A is 10 and M is 5. They separated in June 2003. Since separation the children have lived with their mother and had frequent and regular contact with their father.
The father alleges that the mother is physically, emotionally and spiritually abusive to the children; that this, coupled with her denial of abuse, has undermined their confidence in her and damaged their relationship with her; and that, as a result, the children wish to live with him. They should be allowed to do so and, to protect them against ongoing abuse, their time with their mother should be supervised until the mother acknowledges her abusive behaviour and addresses the issues behind it. He, alone, should have parental responsibility for them.

The mother alleges that the father has undermined her relationship with the children by a relentless campaign of manipulation and indoctrination; that he distorts the reality of their lives with her and presents that to them as the truth; and that he remains intent on alienating them from her. They should live with her and his contact with them should be supervised, until he gains some insight into his own actions and the destructive effects of his manipulation. She, alone, should have parental responsibility for them.
The independent children’s lawyer (ICL) submitted that the children should live with the mother and she should have sole parental responsibility for them. Interim orders should provide for the father to spend time with the children, professionally supervised, and he should have an opportunity to address (through appropriate treatment) his fixed but false belief that the children are at risk in their mother’s care and the destructive ramifications of that belief. A typed copy of the orders sought by the ICL is annexed to this judgment.
Thus, the court is asked to determine with which parent the children should live, what time (if any and subject to what conditions) the children should spend with the other parent, and who should have parental responsibility for them. The narratives presented by the children’s parents are contested, contradictory and bitterly disputed.

LEGAL PRINCIPLES

The provisions in the Family Law Act1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)         to maintain a connection with that culture; and
(b)         to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)        to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances including findings about abuse and family violence; see s.61DA(2).

EVIDENCE

Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The mother relied on affidavits sworn by her on 27 November, 2005 (her first affidavit) and 12 October, 2007 and an affidavit sworn by a friend, Ms Y, on 11 October, 2007. She called Ms C, the principal of the primary school attended by S and A; a proof of Ms. C’s evidence was tendered as exhibit W-2. She also relied on an affidavit sworn by the father on 15 December, 2005 and filed on 21 December, 2005 (his first affidavit) which was responsive to her first affidavit.
The father relied on affidavits sworn by him on 12 October, 2007 and 26 October, 2007. The father acted for himself during the trial and prepared the two affidavits sworn by him and filed in 2007. Earlier in the proceedings he had been represented and his first affidavit was prepared by those solicitors. Attached to the affidavit sworn by the father on 26 October, 2007 is a short report dated 28 September, 2007 from a psychiatrist, Dr. R, relating to a recent assessment by Dr. R of the father. The father was given an opportunity to call Dr. R but declined to do so.
The trial before me commenced under the less adversarial model described in Practice Direction No. 2 of 2006. Pursuant to that model, each of the parties is to complete a short questionnaire prior to the matter being listed before the trial judge. When the trial commenced the mother had filed a questionnaire but the father had not; he advised that he had been too distressed to do so. On 27 August, 2007 I gave him leave to file the questionnaire and, later that day, the father filed a bulky document which interspersed pages from the questionnaire with numerous attachments. Some of the attachments were typed paragraphs, apparently responsive to numbered questions on the questionnaire; others were documents the father clearly saw as relevant. These ranged from material relating to an assault on the father by a third party, brochures and policy statements from YMCA and K Childcare Centre, assorted correspondence (from a one line letter from accountants confirming the process of preparation of tax returns to an invitation to “[friend’s]” engagement) and photos of a house and lake at K which the father said he had submitted an application to rent.
I did not ask either party to confirm the contents of the questionnaires on oath or affirmation. The case had a lengthy litigation history prior to the parties consenting to it being heard pursuant to Division 12A of the Family Law Act1975, and a deal of evidence had been filed. The document filed by the father as “the questionnaire” was very different to that envisaged by the practice direction. What was relevant at the time of the hearing in October and November was the parties’ circumstances and proposals then, not in June or August. I did allow the father to rely on a reference which formed part of the document he filed, prepared by Senior Minister CF of the local Outreach organisation, dated 24 August, 2007.
Senior Minister CF met the father at a Christian conference in September 2006. He said he had regular dealings with him until the end of that year, but only “intermittent contact” after that. In the reference Senior Minister CF commended the father as :
. . . an honest, hard working and faithful person with a strong sense of commitment to his children and his faith. I have no reason to doubt his character or to question his word.
Although the reference states that the father met Senior Minister CF’s children, there is no suggestion that Senior Minister CF met the father’s children or the mother of those children. The document is no more than a general reference and while I allowed the father to adduce it into evidence, I was not satisfied that any cross-examination of or additional evidence from Senior Minister CF was warranted, having regard to the issues to be determined by me.
The ICL called a counsellor, Ms B, whose report (dated 24 October, 2007) was tendered as exhibit ICL-1. He also relied on a psychiatric assessment of both parties prepared by Dr. E dated 14 September, 2006, and a family report dated 24 August, 2007, prepared by Ms J who is a family consultant employed by this court.
There was reference in the course of the trial to an earlier family report prepared by Dr T, dated 1 February, 2006. No one sought to call Dr. T and I do not place weight on his conclusions. Some reference will be made to the contents of that report, in order to put other evidence in context.
Both parties, Ms. Y, Ms. B, Dr. E and Ms. J were cross-examined.
The mother presented as an articulate woman. While clearly distressed by the litigation and the problems experienced by the children, she remained composed, despite being cross-examined by the father, who was not legally represented, which cannot have been easy. Although the husband said several times that he taught the children to honour their mother, the tone of his voice when speaking to the mother, and the allegations he made about her and her family, were not consistent with his rhetoric of respect for her and her role.
The wife was criticised by the father for failing to refer (in the questionnaire and when interviewed by Dr. E) to the fact that her brother was convicted of drug trafficking in 2001 and sentenced to a term of imprisonment but I am not satisfied that omission carried the weight which the father sought to place on it, particularly as he was himself well aware of the conviction and, with the mother, visited her brother when he was in gaol.
Dr. E saw the mother for assessment on 24 August, 2006 and reported on 14 September, 2006. His opinion of her was in these terms :
[The mother] came from a more stable background. Nonetheless because of her particularly strict European upbringing there were unresolved self-esteem issues. She clearly struggled with matters of assertiveness. She obviously found her future husband to be an exciting and interesting man, but soon discovered him not be an effective husband or parent in the context of his emotional vulnerabilities and his strong dependency needs upon her. His behaviour was described by her as becoming increasingly erratic and disturbed. Her account indicated she has been the true provider within the family and a target of [the father]’s resentment and own sense of failure in comparison.
[The mother] is aware that because of the strain involved in attempting to “keep it altogether” she is likely to have not been as emotionally available to the children as she would have liked. Nonetheless she believes that her various attempts to rectify that situation are currently being undermined by her husband. I note the Family Court report points to the children being manipulated by their father. Whilst there are some concerns to [the mother] being angry with the children, I believe that is understandable, given the circumstances which [the mother] describe.
. . .
Overall I preferred [the mother]’s account of the marriage and the current circumstances over that of [the father].
[The mother] is asking for some protection from her husband, given his previously threatening, erratic and insightless behaviour, I believe her requests should be given some serious consideration. If, in fact, it appears as she indicates that the children are being manipulated by their father, and that is having a destructive effect upon their relationship with her, given that she has been the primary caregiver throughout, some sanctions need to be brought into the situation in order to preserve the children’s best interests.
Dr. E made it clear that he had not seen the children. He is a child psychiatrist; he was in a position to offer some general insights but not to make any specific assessment of the children or their relationships.
Earlier in the report Dr. E expressed the opinion that the mother spoke with considerable insight as to the pain she experienced while trying to save her marriage, subjecting her children to a difficult and volatile family experience. While she was at pains to make up to them for that, she found that her husband’s various attacks upon her through the guise of religion make that increasingly difficult.
I am satisfied the mother was a generally truthful witness.
The father, too, presented as articulate. He had a tendency to speak indistinctly (which resulted in him being asked to speak up on numerous occasions) but at times his presentation changed, and he spoke loudly and at length, in an oratorical and highly coloured style. His evidence was of grand plans about matters such as housing and employment, although little had eventuated by the time of trial. There was an air of rhetorical repetitiveness in his evidence, particularly when speaking of the mother’s allegedly abusive conduct, and his contempt for the mother and her family was redolent in his voice and demeanour. If the allegations against the mother and her family are well-founded, that emphasis and attitude could be explicable, but his presentation, and the evidence as a whole, suggests he is not capable of moderating his concerns, even when a more calm and less coloured expression of them would be appropriate, and more effective.
It was clear that the father felt he was being unfairly judged by reference to his conduct during the marriage and soon after separation, rather than as the person he saw himself as becoming after he was born again and gave his life to Christ on 26 October, 2003. That did not stop him seeking to have the mother judged by her conduct (and that of her family) prior to separation.
Dr. E assessed the father on 8 August, 2006 and provided a report, dated 14 September, 2006. Dr. E summarised his opinion in this way :
[The father] described a dysfunctional upbringing. Whilst he indicated that he was a person of creative bent, I believe it is likely when the court examines this more closely, that his wife’s description of his abilities and failure to provide for the family will be closer to the truth than his own.
While [the father] believes it is his wife who has deceived him, my opinion is that he has little insight into the true nature of his untreated psychiatric disorder, which is likely to have been further affected by his extended period of drug taking. His current religious preoccupation occurs at the end of the line of similar enterprises in the past as described by his wife. Unfortunately, it is likely, I believe, that he uses the cloak of the Christian ethos to attack his wife and undermine her attempts to parent their children.
The reference to “untreated psychiatric disorder” was fleshed out by Dr. E in his oral evidence.
The father told Dr. E of his troubled family background and that he had been diagnosed as suffering from bi-polar illness by Dr. F, psychiatrist, who prescribed Lithium and Zoloft, which the father took for a brief period. He told Dr. E that he does not believe that he has the disorder, that “no-one knows about it” and that he had looked it up on the internet. He said he saw a GP in the context of wanting to self medicate and did take medication for a period, “but it made no difference”. He saw another psychiatrist, Dr. L, who told him “there was nothing wrong with him and simply to go to church”.
The father also told Dr. E that he had taken four overdoses “in the content of issues in regard to his marriage” but was now a “totally different person”. Previously, he had been depressed, had felt responsible for everything that was wrong in the family’s life, did not feel good at all, and had no coping strategies. He said he was internalising everything and his moods would blow up and “that was what would mimic bi-polar disorder”.
The father also told Dr. E of a history of marijuana use (from the age of 16 until he became a Christian three years earlier) and some cocaine use.
Before me the husband conceded the troubled family history, overdoses, diagnosis of bi-polar disorder and the cessation of medication. He said that it was a GP who told him to stop taking the medication, as it was “crap and not working”. The father said he “put” what he was saying to Dr. F but that Dr. F “was very egotistical” and did not like being challenged.
The father’s evidence about his drug use was inconsistent and difficult to make sense of. He was cross-examined about Dr. T’s report that the father initially told him (when seen in January 2006) that he last used marijuana “at least plus ten years ago” and last used cocaine before he was married. In his report Dr. T recorded that at the conclusion of the assessment day, the father asked for a few minutes; he then told Dr. T that, within the past week and contrary to his earlier advice, he had met up with a friend who offered him some marijuana and that he had smoked the marijuana. The father’s response seemed to be to deny he told Dr. T he had not used marijuana for ten years; cross-examined, he agreed he had used the drug more recently than that, although not very recently. His evidence was of an isolated use of marijuana, coincidentally just prior to seeing Dr. T (who routinely recommends testing for substances); I cannot say with any certainty when he dated his earlier cessation.
In his first affidavit the father denied the wife’s allegation that he used marijuana throughout the marriage; he said that prior to the marriage and while they were going out together he did smoke marijuana. That account is consistent with that reported by Dr. T and completely inconsistent with the father’s oral evidence before me.
The mother’s evidence was of the father being a frequent and heavy user of marijuana during the marriage and it is probable that is correct.
In essence, Dr. E’s opinion was that the father’s psychiatric and psychological functioning is compromised. He made that finding on the basis of information given to him by the father about the suicide attempts, at least one psychiatric diagnosis of bi-polar disease and his use of marijuana over a rather lengthy period. Dr. E’s evidence was that mood disorders and drug use can be an explosive mix and lead to erratic behaviour, violence and difficulties with holding down employment. The mother’s evidence was of all three manifesting during the marriage.

Dr. E was careful not to make a formal diagnosis of bi-polar disorder; he said it was “not kosher” to make a bi-polar diagnosis when someone has been using drugs, as a diagnosis of a substance induced mood disorder may be more appropriate. He said the father also has a personality style which explained his vehemence. Dr. E described him as insightless and not amenable to reasoning and said that whether that is psychotic, or just a fixed view, made little difference; whatever their origin, it is difficult to shake his convictions, or change them. Dr. E described an encapsulated delusion, being a paranoid state that allows a person to operate well while remaining fixated and immovable about one particular area.
When it was put to Dr. E that a GP had told the father to stop taking the bi-polar medication, because it was not taking effect (from which lack of swift effect the father and, allegedly, the GP determined that the bi-polar diagnosis itself was incorrect) Dr. E said that patients in the father’s position need to be on mood stabilizers for years. He said the father’s personality functioning is likely to render him vulnerable to maintaining relationships and, possibly, work. If he returned to drug use that would further compromise his mental health. Given his history of mood disorder, one would usually prescribe stabilizers and recommend the patient stay on that medication for a protracted period.
Dr. E’s prognosis for the father was guarded, although he did say some treatment or counselling may be useful. He said that the father was a very single minded man who was convinced that he was right and convinced that God is on his side. Dr. E was not confident about the potential value of treatment, saying that to benefit from treatment a patient has to have some capacity to acknowledge or be aware of problems. In the absence of that capacity, a patient in the father’s position is likely to feel a strong need to defend himself against the possibility that he has a problem, and find it difficult or impossible to form a therapeutic alliance. He said that if one adds in the father’s sense that he has been deceived and taken advantage of, it will be very difficult to “broker an understanding”, necessary for effective treatment.
On 27 August, 2007 I gave the father leave to adduce evidence at the trial of any psychiatric treatment obtained by him between that date and 17 October, provided that an affidavit of the treating psychiatrist be filed and served no later than 26 October and the treating psychiatrist was provided with a copy of the reports of Dr. E and Ms. J. It was after that, on 26 October, 2007, that the father filed an affidavit sworn by him, to which he attached a letter from Dr. R to Dr. D at the K Clinic. The letter is dated 28 September, 2007. Dr. D’s referral was not in evidence.
First, it must be said that the report of Dr. R is not that of a treating psychiatrist. It records that Dr. R told the father he was “not doing Family Court work” but would assess him. The balance of the report is as follows :
This man is not suffering from psychosis nor a depressive illness nor an anxiety state.
[The father]’s concentration is very good and his memory is very good.
There has been some illegal drug use in the past and he told me that he last used marijuana in early 2006.
I could not find evidence of any depressive, bi-polar or anxiety state or psychosis in him today.
He told me that he cares for his children and I accept that that is his belief.
There was, however, slight emotional detachment and some emotional lability suggestive of aspects of a personality disorder.
The father was given an opportunity to call Dr. R but declined to do so. I am satisfied Dr. R was given Dr. E’s and Ms. J’s reports. At my request, Dr. E contacted Dr. R and was able to have a cursory conversation with him. Dr. R told him that he had been asked by the father’s GP to make an assessment on a one-off basis and did not go into any detail about the father’s past history, save as it was recorded in his report. Dr. E said that he thought Dr. R “took him (the father) as he found him”; at the time Dr. R saw him, the father was exhibiting no psychotic symptoms or depressed mood. There was, however, sufficient in the father’s presentation to warrant Dr. R’s comments about a personality disorder. Dr. E said that the father presented as a forceful man, with strongly held beliefs, who could give a reasonable account of himself and that Dr. R and he were “saying some of the same things”.
Dr. E made it clear that he saw the mother as needing protection from the father’s incursions into her parenting. He said that the father is insightless and the onus must be on addressing that part of the problem. Among the possibilities were less contact with the children or supervised contact, together with a strong recommendation or obligation for ongoing treatment. Whether he should see the children would depend on his actions, insights and ability to keep the conflict with his former wife out of the picture.
As Dr. E foreshadowed, I do find the mother’s account of circumstances during the marriage and after separation to be far more credible than that of the father. I do not doubt the father generally believes what he says but I have no confidence in his capacity for objective recollection.
Ms. Y was a direct and impressive witness, who responded calmly and without acrimony when challenged by the father and I find her to be a witness of truth. I do not find she has usurped the maternal role, as alleged by the father. She has provided practical and emotional support to the mother, before and after separation, and I accept her evidence of her observations of the parties and their children.
Ms. C has been the principal of G Primary School since 1999. Although I am confident the father would not agree with this analysis, I am satisfied Ms. C bent over backwards to be fair to him; she clearly did not wish to be drawn into the conflict and was well aware that she might need to continue to deal with both parents in the future. The father launched a strong attack on her credibility, alleging that either she, or teachers from whom she obtained information, lied when denying the child A made specific complaints about his mother’s violence. To the contrary, I am satisfied Ms. C told the truth when giving evidence about those discussions, and when giving other evidence relevant to the children’s schooling and conversations with the parties.
The father was also critical of Ms. C for failing in what he referred to as her duty of care to report abuse of S and A to DHS. Again, I find that criticism unwarranted and accept as sound Ms. C’s evidence that she had no cause to make any such report.
Ms. B is a counsellor employed by A Counselling Centre and became involved with the children when she was consulted by the father in March 2007. He told her of the litigation and that, pursuant to a court order, the children were to attend another counsellor employed by A, Ms. I, for counselling. He asserted that the mother had failed or refused to continue to bring the children for counselling with Ms. I, that he was concerned that they were experiencing physical and emotional mistreatment from their mother and that he wanted the children to have the opportunity to openly express themselves in counselling. It is clear that Ms. B knew that the children lived primarily with their mother and the subsequent appointments she made for the children were arranged to coincide with periods they were with their father. She acted on the father’s advice that the mother would “influence the continuation of counselling” if she found out about it.
There is no doubt that the father can present as a charming and articulate man. That may provide some explanation for why Ms. B acted as she did, but I must find her actions to be so inconsistent with her professional obligations as to cast significant doubt on her understanding of those obligations and to undermine the usefulness of her evidence. Albeit unwittingly, she may have exacerbated the difficulties faced by the children.
Ms. B did not ask to see the court order. If she had, she would have known that on 20 July, 2006, the court ordered that the children attend upon Ms. I for family therapy, not counselling. The orders provided for the involvement of the parents, as requested by Ms. I. Further, she would have discovered that the order required the provision to Ms. I of the report of Dr. T and a letter from the ICL to the parties, dated 18 July, 2006. If Ms. B had read that material, she might not have simply acquiesced to the father’s request but would have been in a position to put his request in context. She would also have been privy to material essential to any contextual understanding of the dilemmas facing the children.
Second, although Ms. B knew that the children had had sessions (which she understood to be straight counselling) with another employee of the same service, she made no enquiries of Ms. I or about that counselling, citing “privacy” as her reason. In my judgment, this omission is breathtaking. It is trite to say that, absent speaking with Ms. I or reading that file, there was a risk that work would be duplicated or inconsistent (and potentially damaging) approaches taken, even had their tasks been the same, which they were not. If she had spoken to Ms. I, Ms. B would have discovered that Ms. I had seen the children on two occasions, and had then recommended that she have continuing sessions with the mother, only seeing the children on an “as needs” basis. The decision not to continue regular sessions with the children was made by Ms. I, not by the mother.
Third, although aware that the children’s primary home was with their mother, Ms. B made no attempt to contact her. She sought no consent from her. The tenor of her evidence made it clear she was aware the children’s mother was not aware of their involvement with her but this, apparently, did not concern her.
Ms. B said several times that she saw it as no part of her role to make any judgment about the accuracy of accounts which her “clients brought to the table”. I accept that to be the basis of much personal counselling. However, one would hope that a professional who works with children dealing with the aftermath of parental separation, might have some insight into the potential for their accounts to be influenced in ways that necessitate some gentle reality testing. That Ms. B did not see that as part of her role is illustrated by her own evidence of the second session she had with M, on 21 April, 2007.
M, then aged 4, came to Ms. B’s room and announced “I have to tell you something”; this was followed rapidly by a litany of complaints about her mother. This presentation was so obviously different from that at the earlier session that Ms. B asked M whether she (M) wanted to tell her these things, or whether someone had told her to do so. To this, M replied that her father had told her to tell Ms. B. Despite the options she had given M, and M’s election, Ms. B decided it was possible that M was simply saying that her father had told her to tell Ms. B about anything that was worrying her, and proceeded to “work with” the things M “brought to the table”. Although she spent ten minutes with the father after every session, and did so after seeing the children on 21 April, Ms. B could not recall if she discussed M’s presentation with him.
Ms. B did acknowledge, based on what she was told in court, that “I guess my perception of the mother is different to that I had before”. She was strongly challenged by counsel for the ICL, a challenge I am satisfied was necessary and appropriate. I appreciate Ms. B is not a psychologist but she has a Bachelor of Behavioural Science degree (according to her report), a number of other “certificates” and is in her third year of a Master of Arts (Counselling). In those circumstances it is astonishing that she had apparently never heard of the concept of alienation; asked questions referable to it she initially said she didn’t understand; after the term was broadly defined, she said she didn’t know if it were a word she would use. Ms. J described Ms. B’s interaction with the children as “absolutely tainted”, an opinion I accept as sound. I do not doubt the account Ms. B gave of her interaction with the children but the process undertaken, the dearth of context in which she saw the children and her lack of insight, satisfy me I can place no weight on professional opinions resulting from that interaction.
Dr. E undertook the psychiatric assessments of the mother and father to which I have referred, seeing them both in August 2006. The father was critical of Dr. E, focusing on a number of factual inaccuracies, such as a report of the place of the father’s birth and where he spent his early years, and a reference to him being Greek rather than Macedonian. Dr. E was unable to refer to his notes, as his practice manager was on leave and he had not been able to find them, but he readily conceded the potential for aspects of a history to be wrongly recorded. I am not satisfied the matters to which the father referred undermine the credibility of Dr. E or the cogency of his expert evidence.
Dr. E presented as an insightful and reflective witness and I place weight on his evidence.
Ms. J prepared a family report, seeing the parties and the children in August 2007. She had access to Dr. E’s report and material produced on subpoena from the Department of Human Services, as well as Dr. T’s report. Ms. J is a psychologist and her expertise informed her evidence, which was illuminating. I am satisfied she observed the parties with the necessary detachment and she expressed a penetrating understanding of the family’s circumstances. I place weight on her evidence.

BRIEF HISTORY

The parties married in November 1992 when the mother was 27 and the father was 22. S was born in June 1995, A was born in September 1997 and M was born in July 2002. The parties separated on 8 June 2003.
After separation the mother and children remained in the former matrimonial home in the south eastern suburbs of Melbourne. That property was sold in September 2003 but they remained as tenants until July 2004, moving then for about a year to a rented property in W from which they moved to the mother’s parents’ home, in the outer eastern suburbs of Melbourne.
It is hard to be as sure of the father’s movements after separation but he has lived for much of the time since at his mother’s home, in H. When he saw Dr. E in August 2006 he was living in a property in the south eastern suburbs, owned by Ms. V, who he described as “a person of Christian persuasion”. That tenancy arrangement ended unhappily, the father attributing this to Ms. V not being the Christian person she held herself out to be. The extent of the fallout may be gauged from the father’s evidence that Ms. V applied for an intervention order against him (an application he said she subsequently withdrew) and his evidence that he was unable to access his furniture for some time after he left that property.
After separation the father had contact with the children each fortnight from 11:00 am on Saturday until 7:00 pm on Sunday, together with some contact during the week.
It is probable the mother spoke to the father about filing an application for residence orders, to be made by consent, in about 2005, but nothing came of it. Her initiating application, filed on 28 November 2005, was precipitated by the father refusing to return S and A after a period of time with him on Sunday 27 November. The following day she filed an application seeking the issue of a recovery order, residence and other parenting orders, on both an interim and final basis. Amongst them were orders requiring the father to attend an anger management program and a parenting after separation course.
I will deal later with some of the allegations referable to the period between separation and the filing of applications in this Court but it is clear that the parties were operating in a climate of escalating, rather than diminishing, hostility. On 24 November, 2005 there was an incident at the local swimming pool in the course of which, the mother alleged, the father was verbally abusive to her, in front of the children, and smashed the mirror of the car in which she and the children were sitting.
As a result of that incident, the mother filed a complaint and summons for an intervention order on 25 November 2005 and an interim order was granted, naming the father as the defendant, on an ex-parte basis at the local Court that day. By the time the case returned to court on 9 December, 2005 the father, too, had sought an intervention order and mutual orders were made, without admissions.
On 28 November, 2005 the mother’s application came before Judicial Registrar Ramsden. She was represented and the father appeared in person, with the assistance of the duty solicitor. Orders were made, by consent, providing for the return of S and A to the mother; until further order the children were to live with the mother and she was to have sole responsibility for their day to day care. Until further order, the father was to have contact from 4:00 pm. until 8:00 pm. each Tuesday, from 7:00 pm. on Friday until 7:00 pm. on each alternate weekend, from 11:00 am. to 1:30 pm. on Sunday in each other weekend, for periods during school holidays and at a number of other fixed times. The father was to collect and return the children from the front gate of the mother’s parents’ home.
An order made on 19 December, 2005 varied that arrangement, to provide for contact changeovers to be at school, after-school care and/or crèche, when practicable. Another order made on 19 December provided for the father to have telephone contact with the children between 7:00 and 7:30 pm. each evening. Each of the parties was required to complete an anger management course.
On 21 December, 2005 the father filed a response to the application for final parenting orders in which he sought that the children live with him, that the mother have contact “on a generous and flexible basis”, that both parents enrol and attend an anger management program and a parenting after separation program and that the mother attend an accredited parenting skills course. By that stage the father was legally represented.
On 20 February, 2006 Senior Registrar FitzGibbon discharged all previous contact orders. Dr. T’s report was before the court; it included an opinion that the current contact was excessive and disruptive. Orders were made for the father to have contact with the children on each alternate weekend from the conclusion of school and/or crèche on Friday until 7:00 pm. on Sunday, on each Tuesday from the conclusion of school and/or crèche until 7:30 pm., during each of the school holidays, on the children’s birthdays and on other special occasions. He was to have contact by phone on each non-contact Thursday and Sunday, from 6:00 pm. to 6:30 pm. When the children could not be collected from school and/or crèche, contact changeovers were to take place at the O Police Station. Each of the parties was ordered to complete the anger management and parenting course “in which they were currently enrolled”; the orders noted that for the husband that was both parenting and anger management through Relationships Australia, and for the mother both parenting and anger management through the O Community Health Service and a positive parenting program through Connections. Without admitting the necessity for the order, both parties were restrained from denigrating the other parent or their family, and from discussing the proceedings, in the hearing, sight or presence of the children. They were also enjoined from physically disciplining the children.
On 22 June 2006 the mother filed an application seeking, by way of interim orders, that the father’s time with the children be supervised, and various changes to the existing contact orders. She sought that the father be psychiatrically assessed and restrained by order from smoking marijuana during contact periods with the children.

The Husband and the Wife attend during the above period upon a clinical psychologist/therapist for the purpose of co-joint therapy, such therapy dealing with :
i. the Husband’s fixed belief that the children are at risk in their mother’s care
ii.the impact upon the children’s emotional well being and their relationship with their mother of the Husband’s beliefs in this regard.
The Husband and Wife’s participation in the said co-joint therapy may be by way of separate interview at the request of either party.

The said clinical psychologist/therapist shall have released to him/her for inspection the following documents prior to the commencement of the said therapy :
a.        the judgment of Brown J. dated
b.        the orders of Brown J. dated
c.        the family report of Ms. [J] dated 24.8.07
d.the psychiatric assessment of Dr. [E] dated 14.9.06
That each party be restrained by themselves, their servants and agents, from :
a.applying any form of corporal or physical punishment upon the children by way of discipline;
b.discussing these proceedings with the children or within their hearing;
c. denigrating the other or any member of their family to or within the hearing of the said children.
That the Wife authorise the children’s respective schools to provide to the Husband copies of all printed information, including photos at the Husband’s expense, if any, produced by the said schools for release to parents concerning the children’s social and academic progress.
That the Wife notify the Husband without delay in relation to any injury or illness concerning the children which require medical attention.
The Husband be at liberty to file an affidavit from a psychiatrist from whom he is receiving any therapy or treatment in relation to his mental health and such affidavit be filed no later than 7 days prior to the adjourned hearing date.
For the purpose of the Husband’s compliance with par.11 he shall ensure that prior to receiving any therapy or treatment from the said psychiatrist, the said psychiatrist shall have made available to him/her by the Husband the following documents :
a.        the judgment of Brown J. dated
b.        the orders of Brown J. dated
c.        the family report of [Ms J] dated 24.8.07
d.the psychiatric assessment of Dr. [E] dated 14.9.06
That the said children be referred to Child and Adolescent Mental Health Services (C.A.M.H.S.) for the purpose of assessing the impact of the parental dispute on their emotional and psychological wellbeing and to assist the process of strengthening their relationship with their mother.
That all extant issues be adjourned for further final hearing by Brown J. on
S.65DA(2) and S.62B provisions apply hereto.

[2007] FamCA 1442

13 December 2007

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