Strine and Rustic

[2010] FamCA 1254

FAMILY COURT OF AUSTRALIA

STRINE & RUSTIC [2010] FamCA 1254

FAMILY LAW – CHILDREN – With whom a child spends time – Risk – No contact with father

APPLICANT: Mr Strine

RESPONDENT: Ms Rustic

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 7158 of 2008

DATE DELIVERED: 1 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 1 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N.P. Hiscox

SOLICITOR FOR THE APPLICANT: Alexander Law

COUNSEL FOR THE RESPONDENT: Mr M.J.W. Byrne

SOLICITOR FOR THE RESPONDENT: Blanch Towers, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G.S. Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The father be restrained from contacting either the mother or the children, Z born … May 1997 and N born … January 2000, in anyway whatsoever and not come within a distance of 400 metres of the mother or the children.

2. That all previous Orders be discharged.

Where the children shall live & Parental Responsibility

1. That the children, Z born … May 1997 and N born … January 2000 live with the mother.

2. That the mother have sole parental responsibility for the major long term issues of the children.

Time with the Father

1. That the Father have no time with the children and be restrained from attempting to contact them in anyway except in accordance with an Order of the Court.

2. That the Father be restrained from filing any further applications for time with the children until such time as he is able to produce evidence from his treating mental health professionals that he has been compliant with treatment and with any medication regime prescribed for a period of at least 12 months.

Counselling/Psychiatric Treatment

1. That the father do all acts and things necessary to arrange for his attendance upon a psychiatrist and/or any other health professionals recommended by his treating mental health care professionals for as long as is therapeutically indicated.

2. That the Father be granted leave to publish and shall do all acts and things necessary to arrange for the following to be published to his treating psychiatrist:

   (a)the report of Dr H dated 25 February 2010; and

   (b)the Family Report of the Family Consultant, Mr P dated 24 September 2009; and

   (c)the Family Report of the Family Consultant, Mr P dated 17 December 2009.

3. That the mother do all acts and things necessary to arrange for her and the children’s attendance upon a Psychologist/Counsellor as directed by that psychologist/counsellor for as long as is therapeutically indicated.

4. That the Independent Children’s Lawyer be granted leave to publish the report of Dr H dated 25 February 2010 and the Family Reports of the Family Consultant, Mr P dated 24 September 2009 and 17 December 2009 to the children’s counsellor.

Other

1. That the parents shall not denigrate or insult the other parent in the presence or hearing of the children and shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

2. Except for the purposes of counselling in accordance with these Orders, neither parent shall discuss any issues between the parties, including these proceedings, in the presence or hearing of the children and shall use their best endeavours to ensure that others do not do so.

3. That the Independent Children’s Lawyer be discharged following the publishing of the expert reports to the children’s counsellor as referred to in paragraph 7 hereof.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7158 of 2008

MR STRINE

Applicant

And

MS RUSTIC

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Rustic for parenting orders in relation to two children, born of her relationship to the respondent, Mr Strine.  The parties were born respectively in 1976 and 1971. 

2. It is uncontested that the parties formed a relationship very early in the applicant’s life.  There is some dispute as to whether it were 13 or 18.  However I will indicate that I do not feel as though much rises out of that difference in whether they formed a relationship at an earlier age or a later age.  As a result of such relationship, the two children were born;  Z, who was born in May 1997, and N in January 2000.  Consequently, Z is about 13 and a half, and N now is 10, almost 11.  She will be 11 in January.

3. I refer to those ages as it is necessary, in my opinion, for me to consider their wishes in this case.  They are of an age which their wishes, whilst not binding on me, are, I consider, of vast importance.  I also refer to the report of Mr P, wherein he indicates that the children are of an age to express their views in relationship to their parenting and residence.

4. I do not, in this case, intend to embark upon an in-depth dissection of the parties’ relationship with each other, other than to say that I am more than satisfied that there were numerous acts of domestic violence perpetrated upon, in this case, I am satisfied, the mother by the respondent father.  This eventually caused a tremendous unfortunate episode in July 2008, wherein as a direct result thereof, domestic violence orders were sought by the mother and equally by the father.

5. The child, Z, it is conceded, became involved to such an extent that he, at the age of around about 10 or 11, felt it necessary to intervene between his father and his mother and, in fact, called the police on behalf of his mother.

6. The father alleges in his evidence that, in fact, it was the mother who was the perpetrator or the commencer – if I might use that word – of the domestic violence.  He emphasised the fact that when she suffered from migraine – which he alleged she does – she “lost it altogether” and became very difficult.  I am not satisfied, on the evidence before me, that that is the case.  I am more than satisfied that the father, who unfortunately has a medical condition, was the perpetrator of both, if not all, of the acts of domestic violence and to such an extent that, as has been said by both experts in this case, Mr P and Dr H, the children, in particular Z, are frightened of him.

7. He concedes, of course, that Z and he have not got on for some five years, if my memory serves me correctly, that he sides with the mother, perhaps for obvious reasons.  As I said, I do not intend to go into the relationship between the parties in any depth, other than to say that I have been assisted, first of all, by quite properly subpoenaed documents being presented in a very easy and understandable manner and I compliment the Independent Children’s Lawyer on that fact.  Further, I have been assisted by Mr P, a well-known family consultant, as well as Dr H who is a psychiatrist, particularly, as I understand, specialising in the field of children.

8. Mr P has seen the parties and the mother on two occasions and the father three.  The mother was unavailable for the report in September 2009, because of some confusion or she was unable to attend.  But, however, he has been involved since the first assessment which took place in the month of February 2009.  He has come to particularly strong views which, I may say, whilst it is not totally admissible, is rather strange for Mr P, who I have found, in my years of experience with him, to see good in anybody.  This is one of the very few, one of the extreme cases in which I ought to say he doesn’t see any good in the children’s relationship between them and their father.  He does not, in any way, consider that the children’s welfare will be advanced by their having contact with the father.

9. First of all, I may touch upon the mother.  The mother in herself has given evidence that I incorporate in the statements made by her to Mr P, particularly where they commence at paragraph 16 of his report filed 18 December 2009, and I incorporate, as I have said, those matters in my reasons.  He is of the view that her reaction to retelling her experiences strongly resembles a post-traumatic reaction (see paragraph 18 thereof).

10. She was, as he said, still concerned that the father was capable of being violent towards her and the children.  She is afraid of him, that he will get her, he will kidnap her and rape and kill her.  Mr P, in his inimitable fashion, says:

    This is an extremely concerning suggestion and I am certainly not dismissing or minimising [the mother’s] fears.

11. There are many other incidents, and I will be touching further upon the children’s reaction which, as I have said, is not to the advantage of the father, nor to their advantage that they – both of them – in Dr H’s opinion – were suffering from post-traumatic stress disorder which has resolved, to a great extent, over a period that they haven’t seen their father, which was from July 2008.  I must emphasise, there has been no contact between the father and the children since that period and perhaps I should, as I am directed by superior powers, consider what the applications are. 

12. The mother is seeking an order that she have the sole parenting rights in relation to the children and the father have no contact whatsoever.  The father, on the other hand, is seeking an order whereby he has contact with the children for three weekends out of four.  He also was seeking, as I understand in his evidence, shared parenting where the children would be half and half, and he would be able to accommodate any form of sharing, and there are other things in relation to it, communication, mutual non-aggression, non-denigration, etcetera, and that’s set out in the quite proper material – case information of the Independent Children’s Lawyer filed 22 October 2010 at page 4.

13. Why should the children not have contact with their father?  That, of course, is the question that I have to determine.  It is quite clear, as I have said, on the evidence of Mr P that he does not recommend it.  He, at paragraph 38 of the aforesaid report of 18 December 2009, says:

    As I indicated in my assessment report to [the father] –

    that was the one back in February –

    I believe his proposal to have the children spend time with him is totally unrealistic. 

14. He found it quite concerning that the father had maintained a belief that his proposal is a reasonable one.  I will be touching briefly upon the particulars in relation to his proposal.  He further goes on to say:

    It is difficult to view his failure to recognise the enormous impact his proposal would have on [the children] as anything other than an indication of his self-serving, impulsive and emotionally insensitive character.

15. And may I say that the manner of his presenting evidence in this Court reinforces Mr P’s view.  In passing, I refer to his grandiose views of his own ability, the fact that he refuses to give me any information as to the place which he would intend to take the children to, other than to say it was a house that he shared with someone else, the fact that he would fail to give us any information as to the type of church that he attends, which he says he receives great support from, other than I did extract from him the fact it is of the Pentecostal faith.  He says he did this because he was afeared of the wife which, as far as I’m concerned, on the evidence before me, is rubbish.

16. I also indicate, just briefly, the grandiosity of some of his statements indicates that he believes that he is famous in the local area because of something or other.  No evidence was brought before me to support that allegation. 

17. He is also of the belief that the B Association, which he was instrumental in forming, is – and recently has been registered – an association of great feeling and great support in the general populous, but he has, as pointed out by Byrne of counsel for the applicant mother, in no way brought any evidence to support either:

    (a)what the B Association is;  or

    (b)what it does;  or

    (c)whether in fact it is supported tremendously in the local area.

18. Obviously, what he has told me is its principles are very salutary, and if in fact they are carried out will do very well, but I have no evidence other than his rather grandiose statements to support that.  I refer to his grandiosity because that has been commented upon, if my memory serves me correctly, by Dr H in his reports.

19. How could he put before us that the children’s welfare will be advanced by their having contact with him?  The whole of his evidence, as I see it, and in particular the evidence given by Mr P and Dr H, appears to be an endeavour to get back at the wife.  His complaints about her, I have found, are generally ill-founded, and I am concerned about his general attitude of retribution, if I may put it that way, which he has expressed not only to Mr P but to Dr H. 

20. In Dr H’s report, he supports what I have found there, where he says at page 16 of his report, filed 19 March 2010, he says:

    His thoughts were preoccupied with anger towards his ex-wife and recurrent threats to kill her or otherwise harm her and make her life difficult.  It was clarified very carefully, but he had stated that he had no current plans to carry out these threats, nor had he taken any steps towards this.  He stated that, instead, he would go to court and get custody of the children or make life difficult as a way of revenging himself on her.

21. He goes on to say in the next paragraph:

    While he did not have clear delusions he certainly had significant grandiose ideas that verged on being delusions.  He was extremely confident and made statements such as, “I’m a very good driver.  I can take the wheels off – I can take the wheels off anything.  I’m a very good car thief.”

22. And further, this concerns me – he’s nodding – shaking his head;  however, that was never cross-examined – it was never suggested to Dr H that he did not indicate that to him.  Dr H further goes on to say:

    He described a clear view that he saw violence as an acceptable way to solve emotional problems.

23. Dr H was so concerned in this matter that he went so far as at page 26 that he recommended to the father that at the time of the interview he return to his previous treating psychiatrist. 

    I contacted –

    and this he says is extreme in his circumstances –

    I contacted the Independent Children’s Lawyer on 6 October to inform her of my opinion, in this regard, and I described the father’s level of agitation and threats that he had made regarding the mother. 

24. He made recommendations to the father that the father be required to see a treating psychiatrist, on a minimum of a monthly basis, to treat and monitor his bipolar illness, which he has, and substance abuse: 

    I recommend that he have regular blood testing and urine drug-screening, that the results of his compliance with psychiatric consultations and recommendation and these tests be made available to the Independent Children’s Lawyer.

25. He further goes on to say in relation to the parenting comments:

    I have very serious concerns about [the father] in regard to the emotional threat he may pose to the children’s welfare because of his unrestrained aggression, both physical and also in his verbal outbursts and threatening manner.  He appears to have little understanding of the effect of this on the children;  compare Mr [P] -

    who, by the way, these two gentlemen have never consulted each other in relation to this matter.  They have come to these conclusions independently.

26. He says:

    I am very concerned about the physical threat that he may pose to the mother, as he freely expressed in a medico-legal interview his desire to harm her, and stopped short only of confessing to specific parts of physically harming her or her mother.

    And I say in passing, the maternal grandmother gave evidence by way of affidavit.  She was not called.  I do not comment upon that and I think it was quite proper, in all the circumstances, but there is a grave concern about the attitude of the father towards the grandmother.  It is alleged – and I take it no further than that – that on one occasion, he attempted to strangle her.

27. I have concerns that he may pose a physical threat to the children if he were to perceive that he was not going to have contact with them, in the same way that he expressed with regard to the mother the idea that, if he couldn’t have them, then no one else should have.

28. What is the Court to do in a case such as that?  Is it, in effect, to accede to the extortionate statements of the father that I have to give him contact, otherwise he’ll do something to the children?  I would think not.  I have to take into consideration many factors which are set out in section 60CC and that’s one of them.  I think the psychological health of the father is suspect.  I am afeared that he may attempt, in some way, to either hurt the mother or the children.  I am gravely afeared of that, as was Dr H and, to a lesser extent, Mr P.

29. What did he do about – these recommendations were conveyed to him, as I understand, by the Independent Children’s Lawyer.  Dr H also went so far as to request that his report not be – if my memory serves me correctly – be not released to the father.  That is very rare in my 34 years of experience in this Court;  in fact I don’t think I have ever heard of it before.  He was concerned about his capacity to control his potentially aggressive reactions to the material in this report, which may place a number of individuals at risk of physical harm.  He’s dangerous.  He’s a time bomb, which I think even he, on occasions, admits he is when he flips, as he said, and the July 08 incident was one where he conceded that he flipped.

30. I regret that I have to emphasise this, but it may be that some people would say I have given insufficient reasons for refusing a father contact.  I have made it quite clear that I am concerned about the father’s attitude, and as a result of that, notwithstanding I don’t think any particular written application was found for a restraining order.  An oral application was made by counsel for the applicant and I would be acceding to that request.

31. As a result of MRR v GR, I have to decide whether in fact there should be significant and substantial contact.  I have made it quite clear already, I could not in any way consider any form of contact in this case would advance the welfare of the children one jot.  As Dr H at page 26 of 38 says:

    [Z] was a young man who sounded like he had suffered from an adjustment disorder with anxiety and depression previously, but this has resolved in more recent times.  [N] was one young girl who probably met criteria for post-traumatic stress disorder in the past, but this appeared to be improving with time and stability.

32. What has caused this?  I must say what the doctor is of the opinion that the respondent met diagnostic criteria for bipolar disorder, hypermanic phase, alcohol abuse, personality disorder, not otherwise specified, with narcissistic and antisocial features.

33. Since I am of the opinion that there should be no significant and/or substantial contact, it is thus unnecessary for me to consider whether it would be reasonably practicable in all the circumstances.  Obviously, from what has fallen from me, there could be no suggestion that there be equal parenting in this case and any presumption to that effect is obviously overcome by two things:  (1) because of the violence that I already referred to;  and (2) because I do not consider it is in the best interests of the children to have contact with their father.

34. I do not believe, in this case, notwithstanding it would be wonderful to have it, that the children would have a meaningful relationship with both of the parents and have not as a result of his conduct which has been more particularly set out in both the reports or all the reports of the experts in this feeling.

1. I do not believe that the father has any capacity to provide for the needs of the children, including emotional and intellectual needs.  The attitude to the child and to the responsibility of parenthood demonstrated quite clearly by the father’s attitude towards not only the mother but his subsequent conduct in relation to his statements to the specialists, particularly Dr H. 

2. I have already said that I am satisfied there was more than enough family violence for these children, particularly for Z to physically intervene himself, and for the children to be showing signs – fortunately and happily it to have lessened – of post-traumatic stress disorder.

3. I am more than satisfied, in a case such as this, that the father has failed to fulfil his responsibilities as a parent and, consequently, I have no hesitation in ordering that the applicant do have sole parental control of the children day-to-day, as well as long term. 

4. I have had put before me an order by the independent children’s counsel, Andrew, who submits that orders should be made in accordance with it.  It appears from his report that Dr H has in his report suggested that perhaps the father, with assistance and support from medical practitioners, could perhaps in 12 months’ time, should he do those things which Dr H refers to at the last, but one, paragraph he says:

   It may be that following a period of stability demonstrated response to treatment, abstinence from excessive alcohol –

   I must touch on that –

   or drug abuse and the control of aggressive behaviour over a period of 12 months – of at least 12 months – that some sort of – some kind of supervised access might be appropriate.

5. May I say, in passing, I doubt that he would do that, since he has given up his treatment with the consulting psychiatrist last year when drugs were ordered – prescribed for him in an endeavour to control his bipolar.  He has stated he no longer needs it and consequently he doesn’t. 

6. His consumption of alcohol, which I’m not quite sure whether still is the same;  it may have been in the past – was 20 to 30 cartons per day.  I do not believe that that is correct.   I think it’s another sign of his grandiosity.  I am not an expert, I don’t drink, but one would have thought that 20 to 30 cartons of stubbies, I think he said, which – is it 12 a carton?

RECORDED   :   NOT TRANSCRIBED

1. That it was two to three cartons a day, in which there were 30 bottles, stubbies.  Well, that’s something between 60 to 90 stubbies a day.  As Dr H said, he would be in a perpetual state of intoxication. 

2. He did not impress me – his manner and demeanour supports exactly what Dr H said;  this enormous energy and intensity, the twitching of the eyes, the grandiosity supports, as Dr H says, bipolar disorder, and it is quite tragic that he will not, and does not think it is necessary for him to, seek the support of medical practitioners.  If, in fact, he does so and if he does those matters suggested by Dr H, it may be that at some stage the children will have supervised contact with him, and I think he did refer to Z having some chance when he was about 15.

3. I have had a look at the orders proposed by the Independent Children’s Lawyer.  I do not like the notation, the notation will be deleted and there are a couple of little mistakes which I have touched upon, and I would order in accordance with the draft supplied by the Independent Children’s Lawyer as amended slightly by myself. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 1 November 2010.

Associate:     

Date:              28 January 2011