THORPE & THURSTON

[2011] FamCA 73

FAMILY COURT OF AUSTRALIA

THORPE & THURSTON [2011] FamCA 73

FAMILY LAW – CHILDREN – Parental responsibility – where the father is diagnosed with a personality disorder – incident where the father deliberately dropped the child in anger – father is controlling – father has been convicted of assault following an adverse outcome in previous family law proceedings – father has suicidal thoughts – father poses a risk of harm to the child – where the mother suffers from mental illness – father’s behaviour and conduct aggravates the mother’s mental illness – mother has separated herself from the father and taken appropriate steps to manage her illness – mother has appropriate therapy and counselling support – Department of human Services supports sole parental responsibility allocated to the mother – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother

FAMILY LAW – CHILDREN – with whom a child lives – child shall live with the mother

Family Law Act 1975 (Cth), ss 61DA, 60CC

APPLICANT: Ms Thorpe

RESPONDENT: Mr Thurston

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: NCC 2919 of 2009

DATE DELIVERED: 17 February 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 29, 30 November, 1, 2 and 3 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Jennifer Blundell & Associates

RESPONDENT: In person

COUNSEL FOR THE INTERVENOR: Mr Allen

SOLICITOR FOR THE INTERVENOR: Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

Orders

1. That the mother have sole parental responsibility for the child F born … June 2009 (“the child”).

2. That the child live with the mother.

3. That the father spend no time with the child.

4. That by 4.00 pm 17 March 2011 the father may provide to the mother through the Department of Human Services, an address (which may be a postal box address) for the receipt of mail by him, and in that regard the Department of Human Services shall confirm in writing to the father:

   (a)       The receipt of that information;

   (b)       The provision of that information to the mother.

5. In the event that the father complies with Order 4 then:

   5.1The mother shall, not less often than annually, arrange to forward to the address provided by the father a current photograph of the child.

   5.2The father may, through the Department of Human Services, send a card and/or gift to the child for his birthday and for Christmas each year and the mother may, in her absolute discretion, pass on such cards and gifts to the child.

6. After 4.00 pm on 17 March 2011 the father is restrained from communicating through the Department of Human Services with the mother for any reason or purpose whatsoever other than as stated in these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2919  of 2009

MS THORPE

Applicant

And

MR THURSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing parenting applications in respect of one child, F (“the child” or “F”) born in June 2009. 

2. The applicant, Ms Thorpe, is the mother of the child (“the mother”).  The mother was born in 1970.  F is her only child. 

3. The respondent, Mr Thurston, is the father of the child (“the father”).  The father was born in 1949.  He has four other children born of two prior marriages.  These children range between 33 and 19 years of age.  The father apparently has no contact with those children.

4. The Department of Human Services is the intervener in the proceedings (“DoHS”). 

5. An Independent Children’s Lawyer represented the interests of the child.

Proposal of the Mother

1. On 16 November 2009 the mother filed an Initiating Application seeking sole parental responsibility for the child, that the child live with her and spend no time with the father.  Those continued to be the orders sought by the mother right up until she was giving evidence in the witness box, at which point she said that she supported the recommendation arising from the conference of experts on 2 November 2010. That recommendation is contained in subparagraph 5 page 10 of the report and is as follows:

   1.The mother should continue to be the primary parent of [the child] and as such there is no need for supervision.

   2.A normal parenting plan between these parents would be impossible to implement mainly due to the father’s behaviour and attitudes.

   3.The father should not have a major role in [the child’s] parenting because of

   ·    his capacity to continually and deliberately undermine the parenting of the mother who is [the child’s] main caretaker      

   ·    the effect of the father’s personality, attitudes and behaviour on [the child’s] ongoing development.

   4.The father’s time spent with the child should be for “identity” purposes only.

   5.As such, visits four times per year for short periods (two hours) would fulfil such identity purposes.

   6.The father’s visits should be supervised by an agency.”

2. The mother relied upon the following documents in support of her Application:

   a)Initiating Application sworn on 12 November 2009 and filed on 16 November 2009;

   b)Notice of Child Abuse and/or Family Violence filed on 16 November 2010;

   c)Affidavit of the mother sworn on 7 October 2010 and filed on 11 October 2010;

   d)Affidavit of Dr S sworn on 28 September 2010 and filed on 29 September 2010; and

   e)Affidavit of Ms E sworn on 5 October and filed on 6 October 2010

   f)Parenting Questionnaire sworn and filed on 21 June 2010.

Proposal of the Father

1. The father filed a Response in December 2009 seeking orders that the child live with the mother and spend time with in him in accordance with a graduating program of time.  On 18 November 2010 the father filed an Amended Response seeking orders in the alternative.  The father proposed either that the child live with the father and spend time with the mother in accordance with a graduated program of time, commencing with supervised time;  or, that the child live with the mother with a staged increase of time between the child and the father with none of that time to be supervised. Both sets of orders provide for shared parental responsibility.

2. The father relied upon the following documents in support of his Response:

   a)Amended Response sworn and filed on 18 November 2010;

   b)Affidavit of the father sworn on 18 November 2009 and filed on 7 December 2009;

   c)Affidavit of the father sworn and filed on 5 February 2010;

   d)Affidavit of the father sworn and filed on 9 June 2010;

   e)Affidavit of the father sworn and filed on 14 October 2010;

   f)Parenting Questionnaire sworn and filed on 10 June 2010; and

   g)Undertaking as to disclosure sworn and filed on 10 June 2010.

Proposal of the Intervener, DoHS

1. The Intervener sought orders as follows:

   1.Subject to hearing the evidence tested at final hearing, seeks an order for sole parental responsibility to the mother, injunctions against the father to protect the mother and [the child] from the father and identification only contact as recommended by the conference of experts and Ms [L].

   The injunctions shall include:

   2.The father be and is hereby restrained from:

   (i)Attempting to contact [the child] by any means, including any third party except as provided by these orders.

   (ii)Approaching or coming within 100m of any place where [the child] might from time to time reside.

   (iii)Approaching or coming within 100m  of any day care centre or preschool or school that [the child] may attend or be enrolled.

   (iv)This is an order for the personal protection of [the child] and in relation to which where an officer of a State Police Force reasonably believes the order has been breached by the father he may be arrested without warrant.

2. At the conclusion of the hearing the Intervener put forward a united position with the mother as follows:

   1.The child [F] (DOB: […] June 2009) (“[the child]”) live with the mother.

   2.The mother have sole parental responsibility for [the child].

   3.The father have no contact with [the child].

   4.That the father be and is hereby restrained from:

   (a)contacting or attempting to contact the mother by any means, including via any third party, except as provided by these orders;

   (b)approaching or coming within 100 metres of any place where the mother might from time to time reside;

   (c)assaulting, molesting, harassing, threatening or otherwise interfering with the mother or a person with whom the mother has a domestic relationship;

   (d)engaging in any other conduct that intimidates the mother or a person with whom the mother has a domestic relationship;

   (e)stalking the mother or a person with whom the mother has a domestic relationship.

   5.The father be and is hereby restrained from:

   (a)contacting or attempting to contact the mother by any means, including via any third party, except as provided by these orders;

   (b)contacting or attempting to contact [F] born […] June 2009 (“[the child]”) by any means, including via any third party except as provided by these orders;

   (c)approaching or coming within 100 metres of any place where [the child] might from time to time reside;

   (d)assaulting, molesting, harassing, threatening or otherwise interfering with [the child];

   (e)engaging in any other conduct that intimidates [the child];

   (f)stalking [the child].

   6.Orders 4 and 5 above are orders for the personal protection of [the child] and the mother and in relation to which, where an officer of the State Police Force reasonably believes the order or orders have been breached by the father, the father may be arrested without warrant.

   7.That the mother have leave to disclose the reports of Ms [L] dated 13 April 2010 and 12 November 2010 and the document entitled “Conference of Experts”, being a report of a joint meeting of experts occurring on 2 November 2010 to:

   (a)any psychiatric or psychological practitioner by whom she is being treated;

   (b)any officer of a State or Federal police force;

   (c)any magistrate, court or statutory tribunal before whom she appears in any proceedings related to any act of violence, harassment or intimidation (or threat of same) by the father towards [the child] and/or the mother.

   THE COURT NOTES:

   1.That the Director General proposes to assess the mother for the provision of services & facilities under the “Brighter Futures” programme and the mother intends to participate in that programme.

   2.The terms “stalking”, “intimidation” and “domestic relationship” or variants thereof in these orders are intended to have the same meanings as those terms within the meaning of Crimes (Domestic and Personal Violence) Act 2007 (NSW).

3. The Intervener relied on the following material:

   a)Affidavit Ms J sworn 1 November 2010 filed 18 November 2010.

Proposal of the Independent Children’s Lawyer

1. At the start of this matter, the Independent Children’s Lawyer had no proposed orders. At the conclusion of evidence the orders sought by the Independent Children’s Lawyer were as follows:

   1.That the mother and the Minister for Community Services have equal shared parental responsibility for the child [F] born […] June 2009 (hereinafter referred to as “the child”).

   2.That the child live with the mother.

   3.That the child spend time with the father supervised at the discretion of the Department of Human Services.

2. The Independent Children’s Lawyer relied on the following documents:

   a)Affidavit of Mr U sworn on 14 October 2010 and filed on 15 October 2010;

   b)Affidavit Ms L sworn and filed on 13 April 2010;

   c)Report of Dr R dated 16 August 2010; and

   d)Report of conference of experts sworn and filed on 12 November 2010

History of the matter

1. The mother and the father met in August 2007 through an on-line support group for survivors of child abuse.  They began living together in November 2007.  Both parties are in receipt of a disability pension:  the father as a result of an injury to his back, the mother as a result of a mental illness from which she suffers, being Bipolar Disorder.  The mother has been taking medication for bipolar disorder, on her evidence, for approximately eight years.  She consults Dr S, psychiatrist, and has done so for approximately 18 months.  The mother also has various community supports including Ms E, a counsellor and Ms P, a family support worker.

2. In the second half of 2008 the parties conceived the child, F, who was born in June 2009. 

3. There was a critical incident about nine days after the birth of the child.  The mother alleges the father threw the child onto the bed, a distance of two to three feet.  DoHS became involved and the parties separated on a final basis on 10 July 2009.  After separation, the mother and child lived in a refuge for women, but after approximately six weeks, moved into private accommodation.

4. The mother was advised by DoHS that if she permitted the child to have unsupervised contact with the father, the child would be removed from her care.  The mother supervised visits herself.  Over time, she found this role increasingly difficult.

5. Towards the end of 2009 the mother became increasingly mentally unwell and arranged through DoHS for the child to be placed in respite care.  The mother admitted herself to the Mental Health Services where she remained for four days until her illness was stabilised.  The mother was then carefully reunited with the child and he was gradually returned to her fulltime care.

6. Interim orders were made on 9 February 2010 for the mother to have sole parental responsibility for the child and for the child to live with her, with the father to spend not less than two hours per week with the child at a location approved by DoHS.  Those orders were implemented and the father has been spending time with the child supervised by Catholic Care.

7. In April 2010 the single expert witness, Ms L delivered her first expert report in these proceedings.  In that report the recommendations were as follows:

   1.The mother is granted substantial care of the child.

   2.The mother is granted sole responsibility for major decision making about the child, e.g. schooling, medical treatment, etc.

   3.The father has unsupervised contact with the child, but for short periods only.  This regime should preclude any holiday contact and overnight visits, e.g. these visits are primarily for identity purposes than for the father to “co-parent” the child.

   4.While the child is young, there may need to be more regular, short contacts to increase the child’s familiarity with his father.

   e.g.between ages 1-3 years : weekly visits for some months, reducing to fortnightly visits for no more than 2 hours.

   e.g.Age 3+ years: monthly or bi-monthly visits during the day time only, for 6-8 hours.

   5.A Supervision Order for two years with DoCS to be put in place.  There are high risk factors in both parents, as well as their relationship being quite toxic.  The propensity for serious crises especially between the parents, is high without any authority supervision.

8. On 9 June 2010 the father filed an affidavit raising complaints about the single expert. 

9. In June 2010 the parents filed parenting questionnaires.

10. In July 2010 the father filed an Application in a Case seeking that his ex-wife, Ms K, and the three children born of that marriage, be prevented from having any contact with F.  The mother had made contact with Ms K, writing to let her know about the birth of the child and enquiring about the father’s history and background.  This eventually led to Ms K and two of the children becoming involved for a period of time in the current proceedings.  Their affidavits were not ultimately relied on by the mother.

11. On 8 August 2010 the child had a supervised visit with his father in the usual way.  The mother had prepared food for the child’s visit. She packed fruit inside a lunchbox and also provided a knife for cutting the fruit.  The father alleged the child opened up the container and took hold of the knife, or was close to taking hold of the knife.  This incident became the subject of complaint and considerable evidence.

12. On 9 August 2010 a psychiatric assessment of the father was conducted by Dr R, Consultant Psychiatrist.  The father reported to Dr R that reading Ms L’s report had led to recovery by him of memories of childhood abuse.  It was unchallenged evidence in this case that the father had told the mother during their relationship that he had, at least since 2001, recovered memories of childhood abuse by his father and that this had led to him giving up his role in community services.  The father apparently reported to Dr R that between 2001 and April 2010, he experienced six flashbacks of traumatic experiences.  In April 2010, after the release of Ms L’s expert report, he had six weeks of frequent traumatic flashbacks based on sexual abuse memories.  Dr R assessed the father and did not find any cause for considering it unsafe for the father to have unsupervised care for the child for two hours per week.  This report was released to both parties.  The report justifies closer examination.

13. In September 2010 the father filed a Notice of Discontinuance.  Soon after, orders were made for the preparation of an updating report by Ms L and for a conference of experts, being the mother’s treating psychiatrist, Dr S, her counsellor, Ms E, Dr R, who had assessed the father and Ms L, who prepared the earlier report as the single expert, to take place.

14. In November 2010 Ms L provided an updating report.  The recommendations in that report were as follows:

    Scenario A

    If the Court finds that the views expressed in this Opinion are valid then it is respectfully recommended that:

    1.        [The child] remain in the sole care of his mother.

    2.        The father spends time with [the child] for ‘identity’ purposes only.

    3.The father’s visits should occur 3-4 times a year for a maximum of two hours each and be strictly supervised by an agency.

    4.The father should have no phone contact with the mother or with [the child].

    5.Arrangements should be made for the father to obtain photos, school/pre-school reports, medical reports, etc, in relation to [the child], relayed through a supervising agency.

    6.Human Services need to keep a legal role with [the child], as the father has the propensity to destabilise and harass the mother if she has no authority other than Family Court Orders.  He is a very difficult man who needs a strong authoritarian institution to set ongoing limits on him, in the service of the child.  As well, given the risk factors associated with the mother’s mental health, Human Services need to maintain an ongoing involvement with the family.  It may be that [the child] should be placed in the DG’s care until 18, but residing with the mother.

    These recommendations were unanimously endorsed at the recent Experts Conference.

    Scenario B

    If the Court finds that the views in this Opinion are not valid, then it is recommended that:

    1.        [The child] remains in the substantive care of his mother.

    2.        [The child] spends regular and unsupervised time with his father.

The evidence

Dr S, Consultant Psychiatrist

1. By arrangement of all parties, Dr S gave his evidence first.  Dr S had been seeing the mother on a weekly basis to monitor her during the course of the litigation.  The doctor’s evidence was that the ongoing litigation has been a major stressor on the mother.  The doctor also said that if the views of Ms L about the personality of the father were accepted, the father would be a stressor on the mother generally.  The doctor was unable to comment on how that would affect her parenting of the child.  Dr S made it clear that in the conference of four experts he had deferred to the opinion of others as to the nature of the father, whom he had not met.  In particular, to Ms L’s diagnosis that the father has narcissistic personality disorder and the assessment and reflections of Dr R.  Dr S also clearly stated that he was not an expert in the area of narcissistic personality disorder and that although certain conduct and correspondence of the father was consistent with that disorder, i.e. haughtiness, correcting of perceived mistakes by Ms L and the complaint by the father about himself, he could not make any diagnosis of the father or comment on the diagnosis.

2. Dr S was taken to a letter written by the father to him dated 26 February 2010.  This letter, annexure 39 to the affidavit of Ms J, was critical of Dr S for being “much more concerned with being nice to [the mother] and presenting her in a positive light than presenting a clear clinical picture”.

3. Dr S regarded the letter as simply an expression of concern about the child.  He said the clinical picture needed more analysis and that in his view the mother has a lot of insight.  She had been proactive about mustering a range of supports.  The letter referred to above and the subsequent letter of complaint by the father to the Health Commission about Dr S did not change his view.

4. In the view of the Court this letter was not simply an expression of concern by the father.  It was certainly a criticism of the doctor and possibly a veiled threat in relation to professional conduct.

5. The doctor was cross-examined by the father.  He gave a history of his treatment of the mother.  The mother had previously been seen by a general practitioner and Newcastle Mental Health Service.  Dr S was initially asked to see her for an assessment.  He subsequently took her on as a patient in 2008.  The initial issue faced by Dr S was the mother suffering from a side affect of medication.  This side affect, Akathasia, was explained by the doctor as a situation where a sufferer feels inner restlessness and a compulsion to move, i.e. they can’t sit still.  The father asked this question:

   Q:       Who first identified the Akathasia?

   A:       Newcastle Mental Health Service.

   Q:       She didn’t tell you it was I who identified it?

   A:       Not that I recall.

   This was one of several questions the father asked, which suggested a belief by him that he had a better knowledge of the mental health issues affecting the mother than her psychiatrist or other treating practitioners.

6. The father put the proposition to Dr S that the mother suffered from “serious symptoms”.  Dr S said:  “Not everyone fits into a DSM-IV [Diagnostic and Statistical Manual of Mental Disorder] neatly.”

7. The mother had previously been diagnosed with major depression with psychotic features.  Dr S diagnosed her with bipolar disorder.  He said that prior to her pregnancy the mother’s symptoms had been well controlled by Lithium and Moclobemide.  All this evidence was consistent with the mother’s own evidence.  The doctor was taken to case notes from DoHS, in particular annexures 42, 43 and 49 to the affidavit of Ms J.  The doctor’s response, with more than one variation, was:  “[the mother] has a mental illness.  There are different levels of symptomology.”  He said that descriptive terms used by a departmental worker did not give a complete clinical context.  The doctor went on to say the mother suffered from a mood disorder, increased stressors led to additional symptoms and that it was necessary to look at the context.  In his view, the notes, “may indicate [the mother’s] insight into when symptoms are changing.  I’m only able to provide a service by seeing her weekly.”  This was a reference to the doctor having increased his consultations from once every four to six weeks up to once every week.

8. The doctor explained as follows:

   [The mother] is sensitive to medications.  We know that.  Lithium was withdrawn during pregnancy but we were very conscious of a possible escalation of symptoms.  Part of the phenomenology of mental illness is that symptoms fluctuate and increase with stressors.  In the case of the mother she was a first time mother in the older age group with limited social supports.

   However, in the view of the doctor, he said that generally the whole picture has been positive.  That is, pregnancy, delivery and the attachment process with the child.  In the doctor’s view the hospitalisation of the mother after the separation of the parties prior to the delivery of the child had been stressful and unhelpful because she had been admitted to a drug and alcohol ward due to a lack of beds in the hospital.

9. The father asked the doctor whether he was, “Aware that I advised the mother by email that she was becoming unwell.”  The doctor said “no” since he did not have those emails.  The father pressed as to whether the mother had told her doctor that it was the father who had identified her as becoming unwell.  The answer was “no.”.  Again, I had the strong impression that the father asked those questions with a view to being given credit for having a superior knowledge of the mother’s illness.

10. The doctor was questioned about the mother’s admission to the drug and alcohol ward of the hospital.  His answer was that it was not clear to him that that admission had been necessary.  The proposition was put to the doctor that the mother had been angry at the time of the admission and that the mother had thrown a bowl with sufficient force to put it through a wall.  The doctor said he had been unaware of that, however, he went on to say that post-partum hormones affect affective stability in addition to mental illness or personality.

11. The doctor was taken to tab 16 of the affidavit of Ms J and was asked about the significance of the mother having “unusual thoughts”.  The doctor’s answer was that the nature of the thoughts had been difficult to identify because the mother had a long standing anxiety disorder.  Dr S, to use his words, “vacillated about her symptoms”. He said that at times she had more traditional psychotic thoughts. 

12. The doctor was then taken to tabs 17, 23 and 25 of the affidavit of Ms J.  His evidence was very much in the same vein.  That is, that the terms such as “paranoid delusions” were no more than opinions because such language is used by people in different ways.  Unusual thinking, the doctor said, had to be considered in the broader context of mental illness.

13. The doctor gave this evidence immediately after having been questioned about the period between 30 November 2009 and 4 January 2010:  the father put forward the notion that period was a timeline of illness.  The doctor said:  “It is an exercise of balancing evidence against risk.  We were keen not to over sedate a new mother.”

14. The mother had thoughts of needing to burn oil in the child’s bedroom.   This led to a change of medication which proved effective.  Dr S also gave some evidence about intrusive thoughts which are ego dystonic, meaning that the thought is so alien to the usual thoughts of the person that he/she is able to identify it as not to be relied upon.  The doctor said that it was common in the post partum phase for people who had otherwise never had such difficulties to have intrusive thoughts of this ego dystonic type. I infer that the mother’s thought of burning oil in the child’s bedroom is an ego dystonic thought as described by Dr S

15. In relation to the period of 30 November 2009 to 4 January 2010, when the mother was ill and then hospitalised, the father questioned the doctor as to whether the symptoms she had represented a danger to the child.  The doctor gave a comprehensive answer.  He said it was important to look at the complete clinical picture, that the mother has a mental illness.  The positive aspects are that:

    a)she was well engaged in treatment;

    b)she was compliant with her medication;

    c)she had insight into her symptoms;

    d)her symptoms responded to short admissions and medication adjustments;

    e)there was a clear relationship between stressors and fluctuation of symptoms;

    f)there were no complicating features in her situation.  For instance, drug and alcohol abuse, forensic matters or physical and emotional harm in her environment; and

    g)the mother has a warm and affectionate relationship with the child, always brings him along to appointments so the doctor has been able to observe him.

16. Immediately afterwards the father then asked Dr S if he was a mandatory reporter.  The doctor responded “yes”, if he thought a child was at risk of danger then he must report it.  The father asked what behaviours of the mother met the risk criteria.  The doctor said he did not see any.

17. Finally, in response to counsel for the mother, when asked whether any of the matters raised in cross-examination by the father had caused him to change his view,  Dr S said this:

    [The mother] has been very very consistent.  [The child] is her number one priority.  She has done a number of things to assist him.  She stopped Lithium during her pregnancy which was not without risk and she has done other things.  [The mother] has traversed a difficult period, pregnancy and the post natal period.  When certain other stressors are eliminated, (these proceedings), fewer interventions will likely be required in future.

18. At the conclusion of this evidence I formed the view that Dr S had an excellent professional relationship with the mother and felt a considerable degree of admiration, both for the way she managed her own illness and for the strength of her commitment to her son.

The applicant mother, Ms Thorpe

1. The mother was cross-examined first by counsel for the Independent Children’s Lawyer.  It was during these early questions that the mother gave evidence that she supported the recommendation for identity contact between the child and his father four times per year with each visit being a duration of two hours. The mother’s answers throughout were restrained and considered.  She said attempts to discredit her caused her a lot of stress, “This has a huge impact on me”.

2. The mother was asked about her application for sole parental responsibility against the shared parental responsibility sought by the father.  Her response was:  “[the father] won’t be a reasonable and cooperative parent.  He will continue to try and discredit me”.

3. Thoughtfully, the mother spoke about the identity contact proposal in this way:  “It will be very sad for [the child].  The way things are his father is not capable of being a good father”.  She said she had thought ahead as far as the time when the child would start school, presumably in 2015.  She said she had not closed the door on unsupervised time in the future but beyond that she had not thought about it.

4. The mother was asked if the Court ordered residence of the child to the father about how she would cope.  Her answer was illuminating.  She said she would use all legal avenues to change the outcome and that she would be extremely worried about the child’s safety, both physical and psychological.  She said the dropping incident (a reference to the child being dropped on the bed at eight or nine days old), together with the incident where the father was convicted and gaoled for stabbing his former wife’s partner, were enough for her to feel that there was an ongoing risk for the child while in the father’s care.  The proposition was put that there had been no other incidents of violence.  The mother agreed but said the stabbing incident caused her great concern because it had resulted from an outcome around a family law case.  She was also worried about the fact that the father had told her that the stabbing was an accident, but that the police file had said otherwise. 

5. The mother was quick to reject the idea that the father had been physically abusive to her.  She was strong about the fact that she continued to see him as controlling and manipulative.  She agreed that she had expressed sadness on a couple of occasions that the relationship was untenable and the possibility of co-parenting had evaporated.

6. The mother was asked whether she had been fearful of the father when she made telephone contact with him at the end of 2009.  She said “yes” she had been and that sadness at the loss of the relationship was not mutually exclusive from fear of a former partner.  This insightful statement was a reflection by the mother on her own experience.  The mother went on to say that she would no longer be contacting the father after the proceedings were concluded.  She said:  “No, it isn’t possible.  I tolerated abuse then.  I’m not willing to now.”  She amplified that by stating her concern that the impact on her of abusive conduct by the father would be detrimental to the child.

7. The mother conceded that she was unwell by 4 January 2010 and again was insightful when she said:  “Yes, I knew I was getting unwell.  I went to [the] Hospital.  I wanted to see a consultant psychiatrist.  I knew if I went to hospital my medication would be vamped up and I would get relief quickly.”  This insight continued when the mother was asked about whether or not she had had intrusive thoughts since her release from hospital in January 2010.  She immediately conceded that she had had suicidal thoughts in around May 2010 and when that happened she made contact with a mental health service straightaway and arranged to see her own psychiatrist more often.  She was content with Dr S’s assessment that those thoughts were stress induced, particularly as the doctor had not adjusted her medication.

8. The father spent some time at a Health Centre in Victoria.  In relation to the father’s difficulties at the Centre, the mother said the father had told her the following:

   1.that he had been manipulated into a relationship with a woman (who was a patient at that health centre);

   2.that it had been all the woman’s fault;

   3.that the woman had a borderline personality disorder;   and

   4.that the father had been affected by child abuse as a child and for that reason could not be held responsible. 

9. The mother agreed that the father had gone to a centre in the Hunter Valley for sexual assault victims at times during the relationship.  She said the father told her that he started to recover memories of being sexual abused himself during his childhood;  that the memories surfaced during workshops in which he participated while was training for his job in community services.  The mother said the father had gone on to say that his life had been crippled by memories of abuse and flashbacks.  When asked about the effect of this on him she said it appeared, to her observations, quite disabling and that the father sometimes blamed her for making it worse.

10. The mother was not dismissive of the complaints raised by the father about his own childhood abuse.  She said she thought abuse had happened, “it probably had.”  However, she also said that in her view the father tends to “play the victim” to get his needs met.

11. The mother was shown the report prepared by Dr R (tab 79 in the affidavit of Ms J).  Dr R described in that document the father having re-experienced nearly 30 memories since reading the report of Ms L, that he had experienced disturbed sleep, hand tremors, low mood, grinding teeth and anxiety.  The father described to Dr R three types of “dissociative impairment of full awareness and consciousness.”  The mother was asked whether the descriptions by the father to Dr R were extreme compared to what he had told her and what she had observed.  Her response was: “They are off-the-Richter-scale extreme”.

Incident where the child was dropped

1. The mother was cross-examined by the father about the dropping incident.  She was first of all asked whether she feared that the father would kidnap the child:  “Absolutely.”  Her basis for that response when pressed was this:  “You’re quite convinced you’re a superior parent and that I am a risk to [the child] because of my mental health.  I have every reason to fear you”.

2. This then led into the dropping incident:

   Q:You say I threw [the child] deliberately?

   A:You may not have planned it but it was a very deliberate act.  I said to you then ‘you are on notice.  If you do that again I will report you to DoCS and the police and whoever else will listen.’  You said to me ‘do it yourself then (a reference to the mother’s request that it was time for the child to be given to her for breastfeeding)’ and threw [the child] on the bed’.

3. The father put the proposition to the mother that the height of the drop was not even close to two or three feet, as she asserted it to be.  He suggested that the height of the mattress was 55 centimetres and that it was a short drop from his arms to the bed.  The mother disagreed with the short drop and confirmed her view that the child had been dropped or thrown from two to three feet.  The father did not dispute that he had dropped or thrown the child.  It was quite clear that the father was merely disputing the distance, the height of the drop.  I am therefore able to find that the father did drop the child during the course of an angry dispute with the mother.  I am unable to make a finding on the height of the drop.  However I accept the evidence of the mother that the child was forcefully dropped in anger by the father onto the bed.

4. The mother was asked why she didn’t take the child to hospital after this incident.  The manner of her response suggested that she has felt considerable distress and guilt over this issue.  She said “no” she hadn’t taken him to a hospital immediately because she was trying to save the relationship at that point.  When she spoke to her care worker the following day a report was made.  The mother rejected the proposition that the father was contrite now about the incident with comments such as:  “He expressed contrition but recanted.  He blames me and everyone else.  He indicates regret when it suits him.  He is not genuinely remorseful”.

5. The incident has undoubtedly played on the mother’s mind and in my view continues to be a source of real fear for the child’s physical safety in the future.  Not unreasonably the mother said that whilst she agreed that no further harm had come to the child, the father’s time with the child had been supervised by either the mother or a contact centre so there had been no opportunity for anything comparable to occur.  The mother said that the time before and after DoHS intervened was like chalk and cheese.  It is quite clear that the mother has felt very well supported by the Department.

Mother’s contact with Ms K

1. Ms K is one of the father’s former wives.

2. The mother was asked why she had made contact with one of the father’s former wives, the mother of three of his older children.  She said that on finding an old envelope with the address on it she had decided to write and let Ms K know that her children had a half-sibling, but she was also interested in finding out more about the father.  She had begun to realise that there was a lot she did not know.  The mother said that at first the response had been delightful and that everyone was excited about the birth of the child.  Subsequently Ms K and the children volunteered affidavits describing the father as controlling and abusive, which affidavits were passed on to DoHS.

3. The father put the proposition to the mother:  “Does it appear strange for an ex-wife and children to make such statements?”  The mother conceded it was.  She went on to say this:  “I oscillated throughout about whether it was the right thing to do or not.”  The mother agreed she did not have any proof of the accusation made by Ms K that the father had abused their daughter.  She freely conceded that she did not have any proof but she thought it was an important enough matter to be brought into the case.

1. The father questioned the mother about the impact on the child of only seeing his father four times per year.  The father asked who the mother saw as the child’s family.  She said “yourself” and “my mother”.  The father then went on to question the mother about her own mother in a strongly negative way, about her alcoholism and her physical and emotional abuse of the mother as a young child.  Strangely, the father asked the mother whether she had contacted other members of his extended family with whom he is not in contact.  Not surprisingly, she said she had not.

2. The father pointed to passages in Ms L’s second report at pages 4 and 5 and drew attention to comments made about the child’s walking and language.  At that point the father tendered photographs and a CD which included short films of the child taken at the contact centre.  I asked the father what issue these short films and photographs went to.  His response was:  “The development that [the child] is showing as between the mother and myself.”  I formed a very clear view that the father attributed what the child could do at the contact centre in terms of standing up, walking and playing, directly to himself.

The lunchbox incident

1. Counsel for the Independent Children’s Lawyer asked the mother about an incident which appears in the documents and affidavits of many of the parties and witnesses in this case.  This incident occurred when the child was taken to a contact centre to spend time with his father.  The mother had packed a plastic lunchbox full of fruit with a small paring knife.  She had shown the contents of the box to a worker at the contact centre explaining which foods the child was likely to enjoy.  Subsequently the father complained, both to Relationships Australia and more generally, about the risk that he perceived the child was exposed to from the knife.  Indeed, the mother was cross-examined about this incident by the father during the proceedings.

2. The mother acknowledged she had seen letters and complaints from the father about this incident. She continued to be astonished that something so insignificant had become magnified to the extent that it had.  She remained calm as she gave her evidence and said that it would have been impossible for the child to open the box had he even been able to access it.  She further said that she had read in the report of the single expert that Ms L had conducted an experiment with the box, placing something inside it which was attractive to the child and he had been unable to open the box.  I formed the impression that the mother regarded the incident as simply a platform for the father to launch a complaint about her to relevant authorities.  I think there is considerable substance in that view.

3. The mother was extensively questioned about the lunchbox incident by the father.  In particular he pressed the mother as to why she had not taken the step of having her solicitor write and explain to the father that she had shown the knife in the lunchbox when she first arrived at the centre with the child.  This question was revealing of the father.  The mother freely conceded that the father had made an apology to her when he found out that the situation was not as he had originally thought, that is, that the child had access to the box with nobody knowing that there was a knife inside.  However, at no time did the father indicate, even during this cross examination, that he had misunderstood the situation or had blown the incident out of proportion and that his fears and accusations were quite unreasonable.

4. The father then went on to question the mother about references in the DoHS reports which seem to indicate a positive attitude by him to her.  The mother, whilst willing to make appropriate concessions, did not move from her position that the father had been intensely unreasonable in his attitude to her, especially about the child.  For instance, the father took the mother to a report which indicated that he had returned the child’s pram and other equipment to the mother.  She agreed that he had been positive about that but that it had come after months of asking by her.  The father did not deny that he had initially refused to return that equipment.  The father also raised the fact that he spoke to a worker at the contact centre about his pleasure that the mother and her sister were on good terms.  She agreed that that appeared to be positive but went on to say that in the past the father had been very much opposed to her having any relationship with her sister.

5. The mother was questioned about an incident where she had thrown a wooden bowl at a wall and she agreed she had done it and conceded there had been a dent in the wall.  The father put the proposition that she had thrown a bowl through a wall which seems unlikely.  The mother freely agreed that the father had patched and painted the area of damage.  Quite appropriately, the father asked this question:

   Q:Are you saying that when you are fed up and frustrated it’s okay to throw a bowl at the wall.

   A:No, it’s never acceptable but there were extenuating circumstances.  I was extremely stressed.  I was hormonal.  I was not on Lithium.  I was due to have a baby.  I was struggling.  I had been harassed by you.

6. The mother was taken to a document, related to these proceedings, where her signature had been witnessed by RK, one of the father’s estranged daughters.  The father suggested that it had been wrong to involve his daughter in this way.  The mother replied quite thoughtfully that RK had been staying with her to help her while she had a broken ankle:  she was there and it probably had been insensitive of her to involve her in the proceedings in that way.  The mother offered an apology in polite terms and in equally polite terms the father accepted that apology.

7. There was then a considerable passage of cross examination about whether or not the father had been willing to participate in mediation.  Ultimately, the father pulled out of the mediation arranged with Legal Aid NSW by the mother because DoHS indicated they would become a party to that mediation.  The father put the proposition that it was reasonable for him to have pulled out of the mediation given that it would be quite one sided with the Department supporting the mother. The mother said:  “I had concerns about [the child’s] safety.  You had no insight into the seriousness of what had happened”.

8. In the same theme, the father attempted to establish that he had been both positive about and reasonable to the mother. He referred to the Catholic Care reports at tab 81 of the affidavit of Ms J where there are many references to his gentle and careful treatment of the child.  Significantly the mother conceded that it was “positive” that the child fell asleep in his arms on some occasions and “There is no question that you love [the child].  However, she also said “That doesn’t mean that you are a safe protective parent”.

9. Again the mother agreed that from the fourth to the seventh month of the child’s life the father had very little time with the child.  She agreed that would have been depressing for him but she challenged him to understand that he had contributed to that situation arising.

10. The mother was asked if she would be upset in the event that the child is ordered to reside with the father.  Her answer once again showed strong insights:  “Of course.  The disruption of his attachment to me would be catastrophic for him.”  The mother went on to say that she believed that the father was still a risk to the child and that he was more interested in what he could control than in the child himself.

11. The mother was asked some questions by counsel for DoHS, in particular whether she had begun a process of working through issues arising from her own family life with her counsellor, Ms E.  The mother said she had not started that process yet but had been wanting to work on parenting issues since she knew she was pregnant:  “I certainly didn’t want to repeat the sort of parenting I’ve had.”  I interpret this remark to be a compelling example of the mother’s commitment to the child and evidence of the fact that she has shown considerable courage in changing her life in a way that will be most advantageous to the child.  The mother said she had plans to go to university in the future and place the child in child care while she did that. The mother’s opinion is that child care would be beneficial for the child in relation to his contact with other children and would also be beneficial for her as it gave her time to develop something for their joint future.  She thought she might send him to child care a couple of days per week.  The mother agreed she was hopeful, as a sole parent, of becoming autonomous with normal social relationships and that she was very willing to be assessed for the ‘Brighter Futures’ program which is apparently on offer from DoHS.

12. The mother was asked about the impact on her of a complaint by the father about her counsellor Ms E.  She said the complaint had caused her some emotional distress because it had seemed grossly unfair to Ms E:  “She didn’t deserve it.  She didn’t do anything wrong”.

13. The mother was questioned about what had caused the improvement in her ability to deal with stress.  She said she thought the causes were time and distance from the relationship with the father, a regaining of the self confidence that she had lost, and good management of her medication which was keeping her stable.  Again, this was a thoughtful and insightful assessment of the progress that the mother has undoubtedly made since the child was born.

14. In relation to the injunction sought by DoHS the mother agreed that she would feel comfort from a protective order of that sort. 

15. In similar terms to the father’s complaint about Ms E, the mother said she had also been affected by the knowledge that the father had both written directly to her psychiatrist and complained about her psychiatrist.  She said she felt worried about how the letters would affect the Court’s attitude to her capacity as a parent but that her therapy with Dr S had been unaffected by the father’s actions.

16. The mother was asked by counsel for the Independent Children’s Lawyer whether she would accept supervision of her care of the child by the Director-General of DoHS.  The mother said she felt a little bit uncomfortable about that but that she would do it if it was best for the child.  She said she understood that DoHS thought their supervision might represent a buffer between herself and the father.  At a later point counsel for DoHS provided information to all parties and the Court that the ‘Brighter Future’ program would not be available to the mother if DoHS had parental responsibility for the child of if DoHS supervised the mother’s care of the child.  Further, the assessment process could only begin after these family law proceedings have concluded.

17. The mother said she had no reservations about any recommendations made by DoHS.  Her only reservation was Scenario B set out at the conclusion of the second report by the single expert, which involved unsupervised contact between the father and the child.

18. At the conclusion of the mother’s evidence, I was left with the impression that the birth of the child has been an epiphany for the mother and that there is no step that she would be unwilling to take if it would assist her son now and in the future.

Ms E

1. Ms E has a Masters in Social Work and is the mother’s counsellor on an ongoing basis.  She was a participant in the report arising from the conference of experts.  Ms E gave her evidence by telephone from Victoria.

2. While being cross-examined by the father, Ms E was asked about the basis of her concerns regarding the mother’s anxiety (tender bundle 2 tab 51-17).  Ms E responded that her concern was based in part on something that she had read on the father’s blog.  It was subsequently established that the passage from the blog, acknowledged by the father as his, was this:

   In my email I said I considered it to be unconscionable that [the mother] has all these people who are agreeing with ans (sic) re-enforcing her decision to take the case all the way to trial when the build up to the brief hearing we had in December was enough to cause her to become seriously unwell.  I don’t believe at all that she would be able to go through five days of the trial (that’s how long we are allowing) including being cross examined by the Independent Children’s Lawyer who is a very experience lawyer and by me who knows all her triggers and weaknesses and can tie her in knots with language if I want to.

   It’s like a child deciding they want to do something very grown up and having lots of adults egging her on.

   I have to admit I have two separate wishes about the case.  Part of me simply wants to have it settle with [the child] safe and me seeing him lots or him being with me and [the mother] and [the mother] seeing him lots.  The other part wants to have the trial so I can deal with the people who have caused me so much pain over the last 12 months.

   When Ms E saw these sentiments expressed by the father in his blog, she felt they were consistent with what she thought may have caused the mother’s anxiety.

3. Ms E was asked about the mother’s involvement with the father’s former wife and the three children of that marriage.  Ms E’s view was that the mother’s intention in communicating with Ms K and the father’s children was to try and make sense of the relationship between herself and the father and to enquire about any pattern of conduct by the father in the past.  Not surprisingly, she said she did not know enough about that family (the K family) to know why they became involved, at least for a time, in these proceedings.

4. Ms E was asked by the father whether the mother had spoken about his conduct post separation.  Ms E said she had, that at first the mother had spoken about wanting co-parenting, that the father had become angry, the mother’s anxiety levels rose, the mother felt she had to withdraw; there was a lot of anger and criticism by the father.  Ms E agreed that she made contact with DoHS and she was aware the mother did too about such matters.

5. Ms E was cross-examined by counsel for DoHS. The maternal grandmother was emotionally abusive to the mother when she was younger. Ms E agreed that the mother wished to and needed to discuss family of origin issues and that she wanted to learn how to go about her parenting differently to the way in which she had been raised. 

6. Ms E confirmed that the father had made two complaints about her, which had been forwarded to her through her professional association.  The first complaint related to a case conference which she had attended as a support for the mother.  The complaint apparently was that the father felt she should have supported him as well as the mother.  The second complaint related to the period in early 2010, when the child was taken into DoHS’s care while the mother was in hospital.  The complaint was that Ms E should have contacted the father rather than DoHS at that time.  Ms E said she had mentioned the complaints to the mother but did not discuss them and that the mother’s reaction to the news of the complaints was to become protective of Ms E, which was what Ms E had anticipated and wished to minimise.

The respondent father, Mr Thurston

1. The father identified himself as retired  He retired from community services in 2002 and subsequently retired from being a workplace assessor and trainer in 19 September 2004, when he said he had injured his back.  The father is presently in receipt of a disability pension, which he said was both for the injury to his back and the affects on him of abuse as a child.

2. The father confirmed that he had in the past used other names.

The lunchbox incident

1. In relation to this matter the father wrote to Ms J, a manager at DoHS, on 8 August 2010 (tab 61 to the affidavit of Ms J sworn 1 November 2010).  The subject line (tab 64) to this letter was, “Re:  [the mother’s] mental illness and its effect on [the child]”.  On the same day the father sent an email (tab 61) to Ms J, the subject line being “Subject:  [the child’s] safety being threatened.”  Copies of the letter were forwarded to the Registrar of the Family Court in Newcastle, the Independent Children’s Lawyer, a solicitor in the Crown Solicitor’s office, a private solicitor with an association with the case, the Chief Executive Officer of the DoHS, the centre manager of the local DoHS office and the New South Wales Opposition Spokesperson for Community Services.

2. On the same day the father asserts that he lodged a DoCS Helpline report of a child at risk of harm.  The tenor of the two letters was that the mother was clearly mentally ill, had put the child’s safety at risk and had:  “Lost the fundamental capacity to keep him safe.”

3. It is clear that the father did not verify his facts before sending off his written complaints.  Subsequently, he learned that the mother had taken the lunchbox which contained the paring knife to the contact centre, had shown the contents of the lunchbox to one of the contact centre’s workers, spoken to the worker about the child’s food preferences and had then given the box to the worker.  It seems clear that the worker had simply handed the box of fruit onto the father at which point the responsibility passed to him.  As a result of the father’s over-reaction, this incident has taken up a great deal of the time of the many professionals involved in this case, including these proceedings, as a direct result of the father’s over reaction.  However, of most concern is that the father immediately blamed the mother and broadcast an unjustified attack on her without delay or hesitation.  In my view, this vindicates the mother’s fear that the father would likely undermine her as a parent and would use the fact that she has a mental illness as a weapon against her.  Certainly, the subsequent email on 16 August 2010 from the father to Ms J (tab 66 to the affidavit of Ms J) was even more florid and accusatory than the earlier letter dated 8 August 2010:

   Please explain to me, however, why the Department [DoHS] considers that giving a small child access to a knife which could have severely injured or killed him if I had not been as conscientious with overseeing [the child] as I am can be considered as not putting his safety at direct extreme risk.

   …

   Your refusal to act appropriately to protect [the child] from harm, [the child’s] behaviour in hurting him and placing him a severe risk over an extended period, your and [the child’s] injuring my children, and the dead horse of a case the Crown is flogging to try to put together a case will all be to my benefit in the trial, if [the child] ever gets that far.         

4. In this letter, the father also complained that the mother failed to send a drink for the child during the contact visit. It does seem likely that there would have been water available.

5. This reference, in my view, supports the proposition put to the father that he was attempting to bolster his case for the child to live with him by making the complaints referred to above.

6. The father expressed the view that nothing that he could have said to DoHS would have put the mother in a bad light.  I took this to be a complaint by the father that DoHS had failed to be fair and impartial in their dealings with him and were indifferent to his views.  I do not accept that was the case at all.

7. The father agreed that by widely circulating the complaint relating to the knife in the lunchbox he intended to show the mother was an immediate major threat to the child.  He agreed he was angry at the time, “she invoked a machine [DoHS] against me personally.”  The father made this comment in an angry tone.  He denied the proposition that he intended to attack everyone in the process as a result of his anger, but agreed that he had threatened relevant experts in this case with legal action and/or professional complaint.  Those experts being:  the single expert, Dr S, Ms E and Ms J.

1. The following proposition was put to the father:  “You became upset after you had gone home, thought about the opportunity [to use the incident to attack the mother and DoHS] and then acted on it.”  The father rejected this proposition but I consider it highly likely that the father saw the incident as a chance, both to attack the mother and DoHS.  Clearly also the early dismissal of the significance of this incident offended the father, and his desire to be vindicated moved the matter into another level of complaint.

2. In the affidavit of Ms J, at tab 5, there is the father’s reference to having felt “upset and suicidal and seeking compensation.”  In my view, by that stage, the father had become totally absorbed in his fight with the authorities and the mother.  The father had no insight at that time into the DoHS’s role in protecting a child.  I accept that from October 2009 the father was willing to pick up on any issue which would assist him in criticising and attacking DoHS, at the same time pressuring DoHS to cease being involved in the life of the mother and child.

3. The single expert undertook an experiment in relation to the knife in the lunchbox incident, which the father rejected as spurious and illogical. On 22 October 2010, the single expert placed a desirable object into the lunchbox and gave it to the child.  Ms L reports that while the child tried his best to open the lunchbox, he could not do so.

4. The worker at the contact centre thought the matter of the knife in the lunchbox was a non-event (exhibit “M-3”).  

Diagnosis of the father

1. A diagnosis of the father was made by a conclave of experts as follows: 

   ·   Dr S, the mother’s treating psychiatrist;

   ·   Ms E, the mother’s counsellor;

   ·   Ms L, the single expert;

   ·   Dr R, the consultant psychiatrist who was an adversarial expert for the father. 

   The diagnosis was of narcissistic personality disorder.  The father agreed that he had read the second report but stated that he did not accept the diagnosis: “No, not at all”

   Q:They are qualified experts.  They couldn’t be wrong?

   A:Absolutely.

2. The father had denied that he had described the mother as having dissociative personality disorder and that he had tried to describe each of eight personalities that he attributed to the mother (tab 5 of the affidavit of Ms J).  The father said he had been misrepresented and that he had merely observed differences in the mother’s approach to him.  However, he went on to agree that he had talked to the mother about dissociative personality disorders when she asked.  It seems likely that the father regularly raised with the mother the possibility of her having personality, psychological or mental health problems and that he pressed her about whether or not she might have been sexually abused.  The father said that the mother had asked him whether he believed it was possible she had been sexually abused and that he had replied:  “You’ve probably got repressed memories”.

3. The father denied he had tried to talk the mother through a visualisation of sexual abuse.  His response was:  “No, I wouldn’t do that to another survivor of abuse.”  He denied telling the mother that she had likely been abused by her father.

4. In the years that they were together the evidence suggests that there were extensive conversations about sexual abuse in the household, the father referring on many occasions to his “recovered memories of sexual abuse” and the cruel and abusive treatment of him by his father.  The father has also become involved in counselling and healing therapy for victims of sexual abuse.  I consider it highly likely that the father was persistent in his questioning of the mother about the possibility of her having suffered such abuse as a child.

5. The father was asked whether he suffered from depression.  He said he has and in fact was taking antidepressants but not for depression, rather for pain.  There was no evidence about who was prescribing those antidepressants for the father.  At other points in the evidence the father said that he had suffered from depression all of his life.  There was no medical evidence of the father’s physical or mental health.

6. In January 2010 the mother became a voluntary patient in Hospital as set out earlier in these reasons.  In February 2010 and around that time the father sent a series of emails to officers of DoHS and the mother’s treating doctors regarding her delusional behaviour.  In cross-examination he referred to this as passing on observations.  He denied that the behaviour was manipulative and said it was purely out of concern for the child.  He agreed though that he had wanted DoHS workers to actively remove the child into his care.  I found that the father was not purely motivated by concern for his son.  Given that he knew the mother was consulting Dr S and her counsellor and was otherwise taking appropriate steps to address her own mental health problems in January 2010, the father’s conduct at this time was consistent with the diagnosis of narcissistic personality disorder, in that he believed he knew better than the mother’s treating practitioners as to the state of her health.  He also wished to triumph and be vindicated in his dispute with DoHS.  The father agreed that on at least two occasions he had advised relevant third parties that the mother was:  “The worst she has ever been.”  In my view the father was well positioned to know that the impact of these third party reports on the mother would be adverse and that there was a consequential risk to his son.

7. Paragraph 83 of the affidavit of Ms J describes an incident where the father issued an edict to an officer of DoHS, Ms B, that she was to contact him within one day or:  “I will go to the police and media.”  The father agreed that he had issued that ultimatum.  When Ms B did not contact the father, he contacted Ms B to advise that the deadline had passed and that he was now intending to go to court due to her behaviour.  The father said he had no idea whether Ms B would experience this as harassment.  What he was hoping to achieve was action.

8. The father went to the police who advised him that what he had was a family court issue not a police issue.  The father then began emailing Ms B every day until she agreed to a meeting with him.  When asked why he had done that he simply said he thought it would get him the meeting.  In response to the question:  “Was that harassing?” he answered:  “Yes, it was”.

The death of Darcy Freeman

1. The father was asked whether he knew Darcy Freeman.  The father said he did:  “She was a child who had been murdered by her father having been thrown from a bridge in Melbourne.” Darcy Freeman was not related to the father.

2. The father wrote a song for Darcy Freeman on the first anniversary of her death.  He said that he had been prompted to write the song through grief and horror at what had happened.  The parties’ child, F, was named partly as a result of this incident which, the father said, had affected both he and the mother at the time.

3. The father was asked whether he drew a connection between the death of Darcy Freeman and his own child.  His answer was:  “I believed my son was at risk but otherwise not”.

4. The proposition was put to the father that he had in fact stabbed the partner of one of his former wives after he was dissatisfied with a family law case in the 1980s.  The father said “no”, however it is not in dispute that the father did in fact travel from South Australia to Victoria to enter the home of his former wife and her then partner.  He picked up a knife in that home and stabbed a sleeping man who was at that time a step-father to his daughter.  The father agreed that he had stabbed someone but that it was not as a result of dissatisfaction after a family law case.  The proposition was put to the father that his behaviour (the stabbing) in the 1980s and his association with the child Darcy Freeman could be a worry.  The father’s answer was:  “If you have a warped mind as you seem to then it’s possible”.

5. The next proposition was whether the father needed to be more alert to what he says and does than others.  His answer was “no”.  He agreed though that there had been a long history of his actions and words being misinterpreted by others. But, he denied that there was any need to be any more alert to avoid being misinterpreted. 

6. He denied a pattern of being manipulative and aggressive.  He conceded that, while employed in community services, he had entered into personal relationships with patients at a practice in Victoria. This led to the termination of his employment and his withdrawal from practicing in community services.  He said he sometimes saw himself as a victim and that he was a person who had now been diagnosed with narcissistic personality but who refused to accept the diagnosis.

Names used by the father

1. L Thurston, H Thurston, E Thurston and presently HM.  The proposition was put to the father that he changed his name after he had encountered difficulties in his life.  The father disagreed.  He did, however, agree that he had been H Thurston until he was convicted for an assault on the partner of his former wife, but was incarcerated as L Thurston.  The father denied the change had been made because of possible future adverse consequences. 

2. Subsequently, the father obtained a degree in community servicesand used the name L Thurston in that capacity.  The father agreed that after he encountered professional censure in relation to his conduct with a patient/client he had again changed his name. In a letter to his professional association dated 23 October 2002 he said:  “[L Thurston] has been killed off.”  The explanation the father gave for changing his name was that a lot of people found it difficult to spell ‘[L]’.  He agreed that more recently he had begun to change his name to HM.  The explanation the father gave was that he wanted to avoid the “pain associated with the name [Thurston]”.  He said he used the name unofficially in that it did not appear on any documents.  The proposition was put that the name change was a result of present difficulties in these proceedings.  The father indicated that he did not understand that proposition.

3. The father has begun to use the name “[HM]” since about 2008.  He said he had taken this step to make a more positive association with his maternal grandparents.  He was asked whether he contemplated changing the child’s name.  The father said “no, when he was older” he might.  He said he would also contemplate telling the child of his background so he could choose which surname to use.  This is a matter of some concern and was commented on by Ms L.  The comments of Ms L in that regard follow later in these reasons.

4. The father said he had identified his occupation as ‘community services worker’ in his response document filed on 7 December 2009 although he no longer practices in community services.  The father was quick to nominate his previous solicitor as responsible for having chosen that description of his occupation: “Not me”.

   Q:You allowed a document to go forward with [community services] as your occupation when that had not been true for seven years?

   A:It was he (the solicitor) who decided to put it in there.  I followed his instructions.

   I consider it more likely that the father instructed the solicitor in the ordinary way as to the nature of his occupation rather than the other way around.

5. At the commencement of his evidence, the father described himself as a disability pensioner who had been on a pension since 2005.  At this point, he said he had not described himself as a pensioner when he was sworn in because being a pensioner was not an occupation.  The father was evasive in this regard and I formed the impression that he responds in relation to his occupation in a way that suits at the time:  retired, disability pension, community services worker, work place trainer.

6. The father saw Dr R on two occasions for the purposes of these proceedings.  He said he had attended counselling with Ms H, psychologist, which ended in 2009 although he had seen Ms H two months ago and would see how things progressed.  He said he had been consulting Ms H for the affects of childhood abuse and also not being allowed to see his son.  He agreed that there was no report from Ms H and provided no explanation for a lack of such evidence.  I infer that such evidence would not have assisted the father’s cause.

7. There was a passage of evidence about the father’s involvement with the “mayumarri” method of healing for child sexual abuse victims.  The father made this remark:  “I can’t deal with people expressing large amounts of strong feelings.”  I accept this evidence from the father and consider that it is consistent with at least two elements of the diagnosis of narcissistic personality disorder, that is a lack of empathy and a need to be the focus of attention.

8. The father again referred to his intention to talk to the child in the future about the child’s paternal grandfather and maternal great grandfather and to give him the choice about what surname he would use.  This suggests that the father will be free with information about his own abusive childhood with F and could provide him with a very bleak and disturbing picture of his father.  I am not asked to make a finding about the father’s history of abuse and could not do so, however, it seems clear that at least since 2001 the father has been speaking to counsellors and freely discussing his history with third parties on a very regular basis.  It is impossible for me to determine whether the father has an unmet need for therapeutic counselling and/or is seeking to draw attention to himself and/or is seeking to elicit sympathy from others for his plight as a victim of sexual abuse.  However, it is likely to be most unhelpful to the child to be drawn into this aspect of his father’s life and personality.

Medical History

1. The father said he had been recovering memories of sexual abuse since 2001, that he had not had a lot of treatment.  He had seen two counsellors in Victoria “who thought the memories related to nothing”.  He saw a ‘qualified counsellor’ in 2003 and 2004 in Victoria and then stopped doing so because “It was beyond her capacity we both agreed.”  He saw a psychiatrist in Victoria who is said to have diagnosed complex post traumatic stress disorder and major depression.

2. The father wrote an email to one of his older children referring to sexual abuse by his paternal grandfather at six months of age.  What is of concern is the father’s willingness and desire to discuss these matters with third parties and, most worryingly, with his children.  The father also wishes to be vindicated in his view that recovered memories are valid and that what he describes as dissociative states are a consequence of both his abuse and the memories.

3. In relation to dissociative states, again I am unable to make a finding about whether the father dissociates or what is the cause of any such episode.  Of relevance to these proceedings is that Dr R, consultant psychiatrist, expressed a concern in his report that a person in a dissociated state would be unable to care for a child.  It may be that the father, on reading that opinion, expressed a view that he could control those states or episodes so as to be able to care for a child.   I am unable to come to a conclusion about that.  What is clear from the evidence of Ms L is that the definition of ‘dissociative state’ is that it is an unconscious defence mechanism used by the mind to block out uncomfortable feelings.  Accordingly, by definition, it cannot be controlled.

4. In 2008 the father went to the police to make a report of the abuse by his father.  The father he had thoughts of suicide on four occasions but denied that there had been four suicide attempts.  There have been occasions at about age 12 years, once in his 20’s, once in his 30’s and once more after separation from his first wife. For instance, he said that in August 2002 he considered ending his life and chose not to do it. 

5. The father was shown documents from the Hospital which describe him as acutely suicidal.  The father denied that he had been acutely suicidal in 2009 noting that, “That was their interpretation of the information that I had Amitriptyline at home.”   I consider the father was either being evasive about being suicidal in 2009 or was not being honest when he was interviewed at the hospital. 

6. The father said he has also attended ‘Dads in Distress’ on one occasion but had found it unhelpful, “The other men were expressing so much emotion.”  This is another example of the father wishing to avoid people with needs he might be expected to meet.

7. On 6 August 2009 the father was taken to the Hospital by ambulance as a result of his call to the 000 service.  He is reported to have been contemplating overdose.  There was also a note in this material, “threw the baby in the bed.”  The father responded somewhat angrily that he did not say that as he did not do that but that he knew that comment was recorded in the notes.  I accept that the father did report that he had thrown the baby on the bed.  It is simply not possible that a member of staff at the hospital wrongly recorded such a comment without any information from the father.  This was an issue that recurred throughout these proceedings.

8. As earlier stated, the father attempted to cross examine the mother about the distance which the child had fallen.  The father’s version being that the child had gone from his arms onto the bed, a distance of about 20 centimetres. As discussed earlier, I am unable to make a finding about the distance at which the child was dropped but I accept the mother’s version that the father deliberately dropped the child in anger.  Further, Ms J, whose evidence will be referred to later in these reasons, referred to the father having conceded to her that he had dropped the child in anger.  There is a police report which describes the father as angry and agitated at the time of the incident.

9. I consider that the father had been confronted by that note in the Hospital notes of 6 August 2009 and denied having made the statement despite the inherent incredibility of such denial.

10. On 5 October 2009 the father was again brought to hospital by an ambulance.  He said he was grossly anxious and agitated on that occasion.  On 13 October 2009 the father wrote a letter to DoHS referring to his having “powerful suicidal thoughts.”  The father agreed that at that time he was phoning lifeline daily.  His evidence was he had been unable to control his emotions at that time and a statement made to DoHS that, “You have done more injury than my father did” was not the statement of a rational man and in the father’s view he was not rational at that time, “I came down later”.

11. There was a passage of cross examination about the father’s attempts to prevent the report of Ms L coming into evidence in this case.  The father withdrew his application for the rejection of the report.  As a result of reading the report, the father reported experiencing further flashbacks of memories of child abuse which had an impact on his own mental health.  The father blames Ms L for this outcome:

    Q:Your attitude to [Ms L] is still negative?

    A:More negative than it was then.

12. The father agreed that he sought an outcome where the mother would have no support from DoHs.  He asserted his belief that the departmental workers had aggravated the mother’s mental illness and that Dr S had not been treating the mother properly.  Accordingly he did not accept the positive report contained in Dr S’s affidavit.  The father unhesitatingly gave this evidence as if he were in a qualified position to consider the evidence of Dr S and accept or reject it.  I consider that this is another example of the narcissistic personality disorder of the father.

13. Likewise, the father was taken to a reference in Ms J’s affidavit (tab 78 page 3 of 7) where the father predicted that he would tie the mother up with questions knowing, as he did, her triggers and weaknesses.  The father was asked whether he had hoped to dominate the mother with questions.  His answer was illuminating in terms of his diagnosis:  “I would have done that if I wanted to.  I’ve been very pleasantly surprised by her ability to cope”.

1. The father then moved on to what he perceived as criticisms of himself in the report.  Ms L confirmed that the father had stated to her during the interview what his IQ was, which she interpreted as him being boastful on the basis that most people do not state their IQ’s during interviews. It was her view that the father was suggesting that he was special and thought differently to other people.  I note that this is apparently one of the elements of the diagnosis of narcissistic personality disorder.

2. The father went on to ask whether, given that he had also mentioned his father’s IQ, Ms L thought that he thought his father was superior.  Ms L said she thought so “yes”.  She said she thought the father had an unrealistic assessment of his son and that he thought that his development was very much more advanced than it actually is. 

3. At that point the father showed short videos of the child which had already been tendered into evidence and viewed by all parties and the Court.  During the course of these films being showed I noted the mother smiling and responding to images of the child from the back of the court.  Ms L stated that the videos taken between March and November 2010 were entirely consistent with what she had seen in her room and also consistent with the observations that the mother had made about the child’s development.

4. The father then began a line of questioning to challenge the diagnosis made about him of narcissistic personality disorder.  He asked Ms L to lend him DSMIV in order to read out the definition of that disorder.  The father then suggested that it was necessary to obtain direct evidence from a sufferer to come to a diagnosis and Ms L agreed. However, she disagreed with the proposition by the father that that would not have been possible after only two sessions.  She stated that in addition to the two sessions she had also read the corroborative material together with the huge volume of correspondence to herself and to other third parties from the father during the course of this litigation was able to make a diagnosis.  In particular, the father raised the fact that she would need evidence of his young adulthood.  Ms L said that she had noted that the father had spoken in the media of his problems with abuse and that his presentation and problems had followed him all of his life.  Ms L said that it would have been a very different picture if the father had said, “I used to be different and now I am this way.”  She said that in her view the father had at least seven of the criteria of the disorder and that only five of the criteria needed to be established for a diagnosis. 

5. Ms L went on to say to the father that he had:

   (i)presented himself as knowing more than the mother’s psychiatrist, Dr S;

   (ii)been very demanding about how she should conduct her assessment;

   (iii)been demanding of the mother’s solicitor;

   (iv)claimed expertise in childhood development which he did not have;

   (v)spoken in a grandiose manner of his own achievements: e.g “I saved [the child] from catastrophe” this being a reference to the incident with the knife. 

   Ms L was aware that the father had a Bachelors degree in community services. The father asked whether or not Ms L also knew he was qualified as a grief counsellor.   There was no clear information from the father about what his qualification was and what institution had qualified him. 

6. I note that the father did not appear to understand that his own challenge to the diagnosis simply by questioning Ms L would not be sufficient.  In this situation the single expert, the mother’s psychiatrist, the mother’s counsellor and the consultant psychiatrist chosen by the father for an assessment of himself had all agreed on the diagnosis of Narcissistic Personality Disorder.  Only compelling psychiatric evidence otherwise could even be considered, let alone be conclusive of a different diagnosis.

7. The father’s overall cross examination of Ms L was conducted very much as one expert questioning another rather than a party representing himself.  For instance, the father said to Ms L:  “I accepted Dr [R’s] report but I disagree with his conclusions.”  The father genuinely did not appear to understand that his own view would not carry the same weight as Ms L and the other experts involved in the diagnosis.

8. As he later went on to do with Ms J, the father then took Ms L to places where the father was reported to have been positive about the mother and her sister communicating and concerned for the welfare of the mother and the child.  Ms L expressed the view that these matters were very small changes of attitude and did not in any way balance the undermining of the mother and the hostility that had been expressed to her and about her.

9. Finally, Ms L was asked by counsel for the Independent Children’s Lawyer, the meaning of anhedonia, which the father had raised as a condition he had suffered from at age 18.  Ms L explained that anhedonia was not a disorder but was in fact a term for the condition of being unable to get enjoyment or pleasure from life, that it was now an old fashioned term and that it was a symptom of depression.

10. Ms L said if there was no contact between the child and his father he could lose a meaningful relationship with his father which he presently has.  He would also lose the biological sense of himself.  Identity contact only, that is four occasions of time per year for about two hours, was simply to know who his father was and to have questions answered which would be important when he was older.  Ms L said she was no longer recommending unsupervised time and that as a result of the hearing itself, was no longer recommending any time at all.  The ultimate recommendation had come from knowledge of the evidence of the father about Darcy Freeman in combination with the significance of negative outcomes in family law cases together with the father’s questioning of her about what was most likely to provoke an angry response in the father.  Ms L said she thought there could be some value in photographs and progress reports being forwarded to the father through an agency but did not have a considered view about that.

Ms J on behalf of DoHS

1. Ms J is a casework manager in DoHS.

2. Ms J gave evidence about the ‘Brighter Futures’ program.  She said clients must self refer and that there was a provision of child care and a connection with the mother to mental health services.  She said that in this case the mother would self refer and was totally interested in benefiting from the program which helped social relationships, both for mother and child.  She said that one further element of the program was that security in accommodation would be provided, alarms, mesh windows, security doors and the like and that if there was a danger to the mother then accommodation, at an address unknown to anyone but DoHS and support services, could be provided for the mother and the child.  She said that the mother could not be assessed for the ‘Brighter Futures’ program whilst the matter was in the care arena or if the Minister had parental responsibility or an obligation to supervise.

3. Ms J said that in her view sole parental responsibility to the mother would equate to sole parental responsibility to the Minister with an order that the child live with his mother.  Ms J was asked about an order for equal shared parental responsibility between the mother and the Director-General of DoHS.  She said she felt that that would be an awkward outcome because:  “[the child] doesn’t belong in the out of home care program which he would be in if parental responsibility was shared [between the mother and the Director-General”.

4. Ms J was quick to concede that the father had been difficult, had sent abusive correspondence, had made many ministerial complaints which she had had to deal with.  She said she would not be continuing as the officer in charge of the matter because the child would leave the child protection area and go to out of home care.  This reference to out of home care relates to the fact that in the event that the Minister had parental responsibility, then the child would be classified as being in out of home care although living with his mother.  The Independent Children’s Lawyer put the proposition that the mother would be on her own if she had sole parental responsibility and that another episode of hospitalisation, for whatever reason, would leave the child vulnerable.  Ms J clearly did not agree.  Her view was that the services through the ‘Brighter Futures’ program would be of great value to the mother and, I infer, greater value than the service that would likely be provided in the event that the child was in out of home care.

5. Ms J agreed that the father was likely to locate the child wherever the mother was living and that a restraining order would not be the complete solution to the father taking that course.  Ms J was firm and I accept her evidence that DoHS withdrawing from supervision was not because of the conduct of the father but rather because of the positive assessment by DoHS of the mother.

6. Ms J was cross examined by the father.  She agreed that the mother had had an episode of mental illness in January 2010 and that as a result of that incident the child went into voluntary temporary care and that there was no order that advised the father of those events.

7. The father asked about the reasons why DoHS considered him a risk in particular. Ms J said that the father had thrown the child onto the bed when he was a few days old, that he had done so out of anger and that he had conceded that action to DoHS. He had in fact said:  “I was so angry with [the mother] and threw [the child] on the bed.”  She said there had been conversations with the doctor at the hospital, conversations with the mother as well as statements by the father.  The father asserted via cross-examination that he had never admitted to throwing the child.  Ms J was strong in reply and I accept her evidence.  She said this to the father:  “You put your hands up as you were speaking.  You said ‘I was angry.  I had to do something.  I had to get out.  I didn’t mean to do it’.”  The father then said that such statements about him throwing the child on the bed had been used by DoHS as a justification for supervising the child’s care.  Ms J said that there had been other information from mandated reporters, including the police, and in particular the father having been seen leaving the mother’s home in an angry and agitated state on the day of the incident of the child being thrown.

8. The father asked whether Ms J had any evidence of his having thrown the child.  She said “yes” that he had thrown a nine day old baby and that his other children did not feel safe with him. 

9. During the course of her cross examination Ms J explained to the father that there was a section of the Children and Young Persons (Care and Protection Act) 1998 (NSW) that allowed departmental officers to obtain external information about a person such as himself and that she had obtained such information by phone at the time of the incident with the child.  She reminded the father that she had confronted him with her freshly obtained knowledge of his term of imprisonment and that he had become extremely agitated and angry.  The father said that extra time and effort had gone into obtaining this information but it had only been made available to him now or recently.  Ms J refuted that and said that she had information by phone when she first met the father on an emergency basis.  I accept Ms J’s evidence about all of the above, unreservedly.

Consent orders restraining conduct

1. At the conclusion of the hearing, after discussions between all parties including the father, certain orders were made by consent of all parties.  The father asked that a further order be made that he also have the opportunity to provide copies of the report of Ms L to any treating practitioner of his.  This was, in my view, a positive request by the father.  I am unable to determine whether it was an acknowledgement at some level that there was work he needed to do.  If so, it was insightful.  Alternatively the request may have been a pragmatic attempt to impress the Court.  In any event by consent that order was also made.

Submissions by the father

1. Song for Darcy

   Ms L said that it was chilling because the song appeared to have been written by the father from the viewpoint of Darcy Freeman’s father.  The father said he had heard the news of the death of the child and could not drive for one and a half hours.  He went home and spoke to the mother about it.  He subsequently wrote a song about something he felt strongly about. 

2. The stabbing incident

   The father said, “It was interesting to be named a monster.”  He said that occasions from his past had been pulled out, seemingly at random.  He said that the incident where he had stabbed his former wife’s partner had come up amongst concern about his daughter and death threats from the partner of one of his former wives, being the man he stabbed.  The father said he had taken full responsibility for what he had done and apologised.  This submission provides confirmation that the stabbing incident took place after a long and difficult period of conflict in the family law arena and accords with the concerns raised by Ms L.  The father said that he had had three children in his second marriage to Ms K and despite seeing them only for a few hours on each visit, this outcome had not led him to perpetrate violence over the years.  The father thought that there had been cherry picking of bad events from the past and ignoring of the positive.

3. Supervision Reports

   The father stressed that he had never hurt a child. This is either a denial that he had thrown F or perhaps an acknowledgment that it happened but a denial that the child had been hurt. I infer it is the latter because he did refer to “one event when a child had been put at risk in July 2009”.

4. The father went on to say that there had been nine months of reports of his supervised time with the child.  The father asked that the court read all the supervision reports which revealed him as a caring, loving, gentle and guiding person with “our son”.  He said:  “I am [the child’s] father.  There are many people who say to me ‘can you help me find my dad’.”  At this point the father made an apparently insightful statement.  He said that he had realised the previous day that he was likely not to be allowed any time with the child, supervised or not, and that he now realised his application had been fanciful.   He went on to submit that his time with the child should continue as it presently is, supervised in a centre, preferably weekly, or fortnightly, at least monthly, but certainly not three monthly contact as initially proposed by Ms L.  The father said he understood that the child would continue in his mother’s care and that he would have some supervised time.  He said the vast majority of what Ms L had said about him was true.  He then nominated the words “forthright, strong-willed and over-powering” as some of the things Ms L had said about him.  I note that these words were somewhat positive about the father.  I accept that the father was at this point making painful concessions about what the future was likely to hold, however, it is in the nature of his personality to have chosen those somewhat positive remarks from all those that Ms L made in her three reports.  The father went on to say:  “My father taught me to do it by making me feel like nothing at all”.

5. Diagnosis of Narcissistic Personality Disorder

   The father noted that one of the primary indicators of the disorder is its intractability to therapeutic change.  The father said that he had agreed readily to the consent orders and that had been a change.  He said that he had been able to change and had done so in the past. 

6. The father is an intelligent man and capable of making decisions likely to lead to good or better outcomes for himself.  I do consider that he showed some insight at the time of making these submissions.  I also consider that it is part of his nature and personality to change course in order to suit his own interests.  He did so in the Court of Appeal in Victoria with his admission of having lied at his trial.

7. The father went on to say:  “I was unable to produce a document from [Ms H] (psychologist).  Probably it wouldn’t have made a difference”.

8. There was a concession by the father:  “Maybe I have narcissistic personality traits.”  There was no acknowledgement that if the disorder had been diagnosed by the experts, as it had been, then despite his own views he should accept it.  A concession at that level was not made.

9. The father said:

   I am litigious, no question.  I have expected my wishes to be met at the highest level I thought I needed.  I have hurt and injured the mother of my child and therefore I have probably hurt my son.  [F] is my son.  He was unexpected.  At age 59/60 I didn’t expect another child when I started this relationship.

10. The father gave quite a moving account of the birth of the parties’ child, the time that he had spent with him immediately after the child’s birth.  I note that the father said that he had sung to the new born baby and that at that moment the child had stopped crying and thrown his hands up and had looked out at his father into his eyes:  “At that moment the universe changed”.

11. I find that there was emotional truth in this submission but it is also a reflection of the father’s view that he is special and so is his son.

12. The father expressed a desire to teach his son and reflected that whatever contact he had with him, it would not include the sentiment “what you do is worth nothing”.  I take this to be a reference to the father’s view of how he was treated by his own father.  At no time did the father ever make reference to his mother or her role in his life.

13. The father said:

    I don’t like who I am.  So many times I’ve done what I thought was right and it’s turned out badly.  There is a bright active 17 month old child.  The mother has quite clearly provided good mothering.  I don’t believe he is developmentally delayed.

14. The father then said, and I accept his evidence from the bar table about this, that the first three sessions of supervised time were difficult for him, but on the fourth occasion he had changed his attitude and said to himself “put aside your feeling that it isn’t right to be watched like a criminal” and after that he had “left those feelings at the door”.

15. The father indicated that the proceedings had been stressful for him and that must surely be the case.  He said he had bitten his hands, that he would shake and think “I can’t go on.”  However, he said that he had made a commitment to his son to be his father and to keep that promise.  He said he understood that the child would likely have a justified sense that he’s been injured and hurt by his father. 

16. It is a matter of regret that the apparent insight that the father revealed in his submissions was not reflected in the way that he conducted his case, his cross examination of the mother or of course his intense campaign of complaint and vilification waged over the months from separation to date of hearing.  If it was a moment of genuine insight, then it may be that the father will follow the course he indicated.  That is, he will undertake a course of therapy and provide the therapist with the report of Ms L, together with these reasons for judgment and orders.

17. In the event that progress was made by the father in moderating the most harmful aspects of his personality disorder, that may represent a sufficient change of circumstance to reconsider the question of time between father and child.  Of course such change would need to be thoroughly documented by the treating therapist.

Submissions by Independent Children’s Lawyer

1. Counsel for the Independent Children’s Lawyer urged on the Court an order for continuing supervision by DoHS, both for the protection of the mother and as a safeguard for the child in the event that the mother again had an episode of mental illness, especially if it required hospitalisation.  I accept the submission made by counsel for the Independent Children’s Lawyer that the conduct of the father in Court was consistent with the observations of Ms L that the father does not seem to be able to take a step back and consider his own conduct.  The father did take a step back and apologise for his widely broadcast view that the mother had deliberately and dangerously exposed the child to a knife during a supervised visit.  However, this was at the time when the father was immersed in a campaign where he believes in the righteousness of his own cause that he was the greatest risk to the mother.  The evidence supports a finding that similar campaigns would be waged in future.

1. On behalf of the Independent Children’s Lawyer it was said that the mother would be unable to withstand future onslaughts by the father and that an authoritarian barrier, as referred to by Ms L, in the form of DoHS should be put in place.  The Independent Children’s Lawyer urged on the Court identity contact taking place with the Director-General of DoHS to be available to arrange those visits.

2. It was strongly urged on the Court that the mother should not be left to her own devices, exposed to the risk that the father would continue to sabotage her parenting.  DoHS was needed to intervene and protect both her and the child.  That it would be preferable to make an order least likely to lead to further proceedings and that if the child was put under the supervision of the Director-General until age 18 that would be the appropriate course.

Submissions on behalf of Mother and by the Intervener (DoHS)

1. Submissions on behalf of DoHS and the mother were quite different.  The submission was that the mother needed to achieve appropriate independence, that clearly both parents needed to address their mental and personality problems and that by consenting to an order that reports be released to a treating practitioner the father may have acknowledged that he has a problem.  Counsel for DoHS pointed to the evidence of the mother’s psychologist, Dr S, that the mother had done well, had good prospects and wished to be involved in the ‘Brighter Futures’ program which would help manage her mental health and provide opportunities for herself which would benefit the child.

2. Counsel for DoHS submitted, and I accept, that a parental responsibility order to the Minister, whether sole or shared with the mother, would provide illusory support compared to the real and varied supports of the ‘Brighter Futures’ program.  I accept the evidence on behalf of DoHS that the mere fact of the parental responsibility order would not stop an adverse course of conduct by the father.  In the view of DoHS the making of an order for sole parental responsibility to the mother would empower her and provide evidence of the confidence that the Director-General has about her ability to care for the child.  It was submitted and I accept that the Director-General does not supervise in that way to age 18.

3. This submission is persuasive. Combined with the evidence of Dr S and the mother herself, I am satisfied the mother has the insight and courage to care for her son as a sole parent.

4. Of course there may be difficulties, including further episodes of ill health and further attempts by the father to destabilise the mother.  The mother has demonstrated an ability and willingness to seek appropriate help for herself and the child over the past two years.  This is her great strength.

5. She should have the opportunity to live independently and to participate in the ‘Brighter Futures’ programme which will be a benefit to both mother and child.

6. Further I am satisfied that DoHS will continue to be in contact with the mother and be responsive to any requests she makes.

General Law in Parenting cases

Presumption of Equal Shared Parental Responsibility when making Parenting Orders

1. Section 61DA of the Family Law Act 1975 (Cth) (“the Act”)

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

2. Parents each have all the rights and responsibilities of parenthood unless and until and order of the Court is made.  The Court determines what is in a child’s best interests by considering the matters set out in section 60CC

Section 60CC(2)(a)

1. The child has a meaningful relationship with his mother.  She is his primary attachment and sole source of support.

2. The child has a relationship with his father which has developed into a trusting and affectionate one.  This is a limited relationship developed during short supervised periods of time over the past year.  The Court is required to consider not only whether the child has a present meaningful relationship with a parent, but also whether the child would benefit from a meaningful relationship with the parent in the future. In this case, the child would not benefit from such a relationship as there is a direct and indirect risk to the child in continuing the relationship. This risk is explored below.

Section 60CC(2)(b)

1. There is a need to protect the child from physical and psychological harm arising from subjection or exposure to abuse, neglect or family violence.

2. The mother suffers from a mental illness, bi-polar disorder.  The mother has a capacity to care for the child, however stressors aggravate her illness. 

3. The father is an identified stressor whose behaviour and conduct prior to and throughout these proceedings has exacerbates aggravated the mother’s mental illness.  Until the closing stages of this hearing the father has been bitterly critical and dismissive of the mother as a parent.  He had complained to and/or about her treating practitioners. 

4. The father threw the child in anger forcefully down on a bed when the child was approximately nine days old.  The father has variously admitted and denied this event.

5. The father also blamed the mother for his actions. 

6. In this matter the father was diagnosed with a narcissistic personality disorder. The father’s inability to accept this diagnosis and his general lack of insight into how his emotionally abusive actions negatively impact upon the child and the mother’s ability to parent, poses a risk of exposing the child to physical and psychological harm.  

Section 60CC(3)(a)

1. The child is an infant of some 17 months. He has no understanding of the present situation.

Section 60CC(3)(b)

1. The child’s most important relationship is with his mother.  She has provided loving care of a high standard.  The child has had a limited relationship with the father.  There are no other close family members involved.

Section 60CC(3)(c)

1. The mother had hoped that the child would be able to enjoy a relationship with his father but has given up that hope.

2. The father may express a willingness to facilitate a close and continuing relationship between the child and the mother, however his conduct has indicated that he lacks the ability to do so.

Section 60CC(3(d)

1. The child will grow up with a most limited knowledge of his father.  To be separated from his mother would be irreparably adverse to him.

Section 60CC(3)(e)

1. The orders provide for the written communication between the father and the child. There is very little practical expense or difficulty in facilitating such communication.

Section 60CC(3)(f)

1. At the end of proceedings the father acknowledged the significance and value of the relationship between the mother and child.  Previously he had undermined that relationship in a most determined way. This conduct and the inability of the father to appreciate the negative impact his actions have had on the mother and the child demonstrate that he does not have the capacity to adequately provide for the child’s emotional needs.

2. While the mother suffers from Bipolar Disorder, she has taken appropriately manage her mental illness. This evidence combined with the fact the mother has support from her counsellor, Ms E and her psychiatrist, Dr S, I am satisfied the mother has the capacity to meet the child’s needs.

Section 60CC(3)(g)

1. The child is a boy aged 18 months.  His mother suffers from a mental illness well controlled by medication and therapy.  His father has a damaging personality disorder.  The child’s situation is fragile.

Section 60CC(3)(h)

1. The parties do not identify themselves or the child as Aboriginal or Torres Strait Islander.

Section 60CC(3)(i)

1. The mother has devoted herself to the child; giving his needs priority in pregnancy and from the time of his birth.

Section 60CC(3)(j)

1. Aside from the incident where the father dropped the child in anger, no allegations of family violence have been made. The dropping incident has been discussed in detail and there is nothing further to add.

Section 60CC(3)(k)

1. There is no family violence order in place.

Section 60CC(3)(l)

1. In this case the outcome is not a satisfactory one for the child.  The father may be able to address his serious personality disorder and effect change in his behaviour.

2. A further application even though it would be most likely be in two or three years time could represent a potential benefit for the child.

Section 60CC(4a)

1. The mother has needed the assistance and protection of the DoHS officers since separation to stand as a helpful barrier between herself and the father.

Conclusion

1. For the reasons stated in this judgment the best interests of the child will be promoted by the mother having sole parental responsibility.

2. Accordingly the presumptions about time to be spent do not arise.  The issue of time to be spent is therefore at large.

3. I have considered the factors in s 60CC as set out above and for those reasons conclude that there should be no face to face time between the father and child.

4. Stress has escalated for the mother since the days after the child was born.   She is seeing her psychiatrist weekly to be closely monitored.  Any deterioration in the mother’s health has an immediate adverse impact on the child.  The mother needs relief and emotional safety.

5. Provision has been made for the father to receive a photograph of the child each year and for the child to receive an appropriate card and gift each year for his birthday and at Christmas.

6. The single expert had no concluded view about the receipt of information.

7. In my view the arrival of a card and gift will be an affirming experience for the child and may prompt questions and responses which will allow the child to learn about his father in a positive way.

8. I am satisfied that in this regard and indeed all aspects of parenting, the mother would not say anything about the father to the child which would be damaging to self esteem.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 February 2011.

Associate: 

Date: 17 February 2011