Tozer and Tozer
[2008] FMCAfam 537
•5 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOZER & TOZER | [2008] FMCAfam 537 |
| FAMILY LAW – Parenting orders – father making threats to beat up the mother and kill the mother’s friend in the presence and hearing of the children – father persisting in the belief that the mother will reconcile with him – father using children to tell mother he still loves her. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA |
| Oscar v Traynor [2008] FamCA 95 Rice and Asplund (1978) 6 Fam LR 570 |
| Applicant: | MS TOZER |
| Respondent: | MR TOZER |
| File Number: | MLM 9741 of 2006 |
| Judgment of: | Riley FM |
| Hearing dates: | 29 & 30 May 2008 |
| Date of Last Submission: | 30 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Phelan |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Allan McMonnies |
| Counsel for the Independent Children’s Lawyer: | Mr Grieg |
| Solicitors for the Independent Children’s Lawyer: | Perry Weston Lawyers |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for [A] born in 2001 and [B] born in 2003 (“the children”).
The father continue to attend weekly group therapy sessions with Dr S until Dr S gives to the father, the mother and the independent children’s lawyer a certificate stating that in his opinion there is a very low risk of the father frightening or distressing his children, or confusing them by discussing with them the possibility of their parents reconciling (“the certificate”).
The parties forthwith sign all necessary documents to arrange for the children to spend time with the father at [X] Contact Centre.
Until Dr S provides the certificate in accordance with these orders, the children spend two hours with their father each Sunday at [X] Contact Centre.
After Dr S provides the certificate in accordance with these orders, the children spend time with their father as follows:
(a)each Sunday between 2.00 pm and 4.00 pm for four weeks;
(b)each Sunday between 1.00 pm and 5.00 pm for the following four weeks;
(c)each Sunday between 11.00 am and 5.00 pm for the following four weeks;
(d)each Sunday between 9.00 am and 5.00 pm thereafter;
(e)each Tuesday and Thursday between 7.00 pm and 7.30 pm by telephone; and
(f)at such further or other times as the mother and father may agree.
Changeover is to occur at the [X] Contact Centre, unless otherwise agreed between the mother and the father.
By consent, the father be restrained from discussing the possibility of him reconciling with the mother in the presence or hearing of the children.
By consent, the father be restrained from using any illicit substance
12 hours before or during any time the children spend with him.
The independent children’s lawyer provide a copy of these orders and reasons to Dr S and [X] Contact Centre.
The independent children’s lawyer be discharged on 5 June 2009, or as otherwise ordered.
Each party have liberty to apply in relation to:
(a)the arrangements for the children spending time with their father at a contact centre;
(b)the provision of the certificate by Dr S; and
(c)the discharge of the independent children’s lawyer.
AND THE COURT REQUESTS THAT [X] Contact Centre provide supervision for the children’s time with their father until Dr S provides the certificate or for as long as possible.
AND THE COURT NOTES THAT the reason for the supervision is to protect the children from the father saying things to the children that frighten or distress them and to protect the children from their father discussing with them the possibility of their parents reconciling.
IT IS NOTED that publication of this judgment under the pseudonym Tozer & Tozer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9741 of 2006
| MS TOZER |
Applicant
And
| MR TOZER |
Respondent
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Background
This is an application for parenting orders in respect of [A] who was born in 2001 and who is now seven years old and [B] who was born in 2003 and who is now five years old. Their parents married in 2002 and finally separated on 22 October 2005.
Final orders were made by consent on 7 April 2006 which provided for [A] and [B] to:
a)live with their mother;
b)
spend time with their father on special occasions and from
7.00 p.m.on Friday to 6.00 p.m. on Sunday each alternate weekend; and
c)have telephone contact with their father each Tuesday and Thursday between 7.00 pm and 7:30 pm.
Changeover was to take place at [Z].
Seven months after those orders were made, on 17 November 2006, the mother filed the present application. There was no suggestion that the considerations in Rice and Asplund (1978) 6 Fam LR 570 would lead to the application being dismissed. Indeed, the mother, the father and the independent children's lawyer all accepted that there had been a sufficient change of circumstances for the matter to be reconsidered by the court. The change of circumstances can be summarised as the father's ongoing inability to come to terms with the end of his marriage and the ongoing damage his behaviour is causing to his children.
The proposals
The independent children's lawyer now seeks orders that [A] and [B] spend two hours with their father each alternate weekend at a contact centre. The independent children's lawyer acknowledged that contact centres do not ordinarily provide for contact between children and their parents for more than three or four months without an order of the court. Even then, the maximum time permitted by contact centres for any particular family to use these services is only a matter of months. During that time, the independent children's lawyer submits that the father should undertake therapy sufficient to satisfy the mother that he is no longer a risk to the children. After that, the independent children's lawyer proposes that the children should spend time with their father by agreement with their mother. The independent children's lawyer submits that the mother has demonstrated her willingness to facilitate a meaningful relationship between the children and their father. The mother agrees with the independent children's lawyer's proposal.
The father submits that the interim arrangement made on 30 January 2007 should continue. That is, [A] and [B] should spend time with their father between 9.00 am and 5.00 pm each Sunday under the supervision of the paternal grandfather until the father completes a course in behavioural therapy. After that, the father proposes that [A] and [B] should spend the same amount of time with him unsupervised on three Sundays out of four. He says changeover should occur at [X] Contact Centre rather than at [Z]. If the court were to accept the mother's proposal for two hours supervised time each week at a contact centre, the father submits that after the period at the contact centre has ended, the children should spend time with him unsupervised initially for two hours each Sunday and then building up to between 9.00 am and 5.00 pm on three Sundays out of four.
Events prior to the commencement of these proceedings
The father agreed in oral evidence that he had told the mother at [A]’s sixth birthday party in March 2006 that he was going to remove tiles from the mother's roof, climb in through the manhole and rape and kill the mother. The father said that the mother had no reason to be frightened of him. He told the court that he had just said something in anger. He said that he and the mother had separated only six months earlier and in those circumstances “you just say things out of anger”.
On 7 April 2006, being the day the consent orders were made, an intervention order was made against the father that was to remain in place until 7 April 2007. It has since been varied and extended and is to remain in force until 3 April 2009.
On 25 April 2006, the father sent a letter to the mother, [A], [B], and the mother’s two older children. The letter was essentially a suicide note. It explained how much the father loved his family and indicated that he could not bear being apart from them. The father asked the mother to read the suicide note to [A] and [B], who were then aged about five and three years old respectively. Very wisely, the mother declined to read the letter to them.
The father said in an affidavit sworn on 29 January 2007 that he had been suffering from mental problems in late 2006. He said he was assisted by his local doctor who made a referral to the CAT team. He said he was monitored for about one and half weeks and was prescribed antidepressants and valium. He said that he had not used marijuana since 22 October 2005 and had never been a heavy user. He provided a drug screen which was positive for benzodiazepines but otherwise negative.
The father conceded in oral evidence that in October 2006 he had threatened to take [A] and [B] from their mother at his next access visit and not return them. He said that he had made the threat out of anger but would not carry it out. The father said that when you lose your family you say things out of anger. He conceded that his threat would have frightened the mother. She gave evidence, which was not disputed, that the father had told [A] that he was going to run away with her. The mother said, and I accept, that [A] was frightened by the father's threat.
The father agreed in oral evidence that on about 2 October 2006 he had told the mother that he was still going to rape and kill her but was just working out the best time to do it. He said that he had just said something in anger. He said the mother had no reason to be frightened. He said that he was angry because they had only just separated. When it was suggested to the father at the hearing that the mother might have a lingering fear of him, he said “you say things out of anger”.
The mother said in an affidavit sworn on 13 November 2006 that:
a)the father's parents were unable to adequately supervise the time spent by [A] and [B] with the father as they are elderly;
b)both children have said they are frightened of the paternal grandmother; and
c)the paternal grandmother yells at the children.
The paternal grandfather was present in court on the first day of the hearing. However, the father did not call him to give evidence.
Procedural history
As stated, the present application was filed by the mother on
17 November 2006. Orders were made by consent on 30 January 2007 providing for the children to spend time with their father each Sunday between 9.00 am and 5.00 pm, subject to supervision by the paternal grandfather. Orders were also made for the appointment of an independent children's lawyer and adjourning the matter to 6 March 2007. On that day, orders were made for the father to undergo a psychiatric assessment and for the preparation of a family report.
The matter returned to court on 1 August 2007. On that day, in accordance with the recommendations of Mr Laidler, a family consultant, orders were made for the father to attend [Y] for therapy and to provide supervised urine drug screens. The father was not accepted into the program at [Y]. The reasons for his non-acceptance into the program were not clearly explained.
The matter was listed for final hearing on 25 and 26 October 2007. However, the hearing was adjourned by consent to enable the father to obtain updated psychiatric and psychological reports. It was also indicated to the court that the father intended to commence a 20 week program of group therapy with a Dr S. He was ordered to do so. The matter was otherwise adjourned for final hearing on 29 and 30 May 2008.
More recent events
In an affidavit sworn on 5 March 2007, the father explained that since separation he had stopped using marijuana and had obtained work. As a result, he had hoped that the mother would allow him to return to live with her. However, in early April 2006 she told him that she would not have him back and by late April he had begun to have suicidal thoughts. The father said that he had had great difficulty coming to terms with the end of the marriage and had tried in vain to persuade the mother to reconsider.
The father said that on 13 February 2007 he sent the mother roses for Valentine’s Day. It was not disputed that the mother contacted the police as the sending of flowers constituted a breach of the intervention order. The father was arrested on 15 February 2007. He did not apply for bail and spent a week in custody. He claimed in his affidavit that his time in jail made him finally understand and accept that the mother no longer wanted anything to do with him. However, it was apparent at the hearing on 29 and 30 May 2008 that the father does not yet accept that his relationship with the mother is over.
On 23 February 2007, the father pleaded guilty to the breach of the intervention order and was fined $850 without conviction. The father said that he had begun sessions with a clinical psychologist on 5 March 2007, the day his affidavit was sworn, and intended to continue to see him as directed. It seems that the sessions continued for a few months.
The father produced another drug screen which was negative for illicit substances. He said that three separate sets of charges for breaches of the intervention order were listed for contest mention on 9 March 2007. He said that the allegations consist of sending cards, making telephone calls and sending text messages.
The father exhibited to his affidavit sworn on 5 March 2007 a picture drawn by [A] which said, “My dad is fantastic.”
In an affidavit sworn on 27 July 2007, the father said that on 9 March 2007 he had pleaded guilty to 10 charges of breach of the intervention order. The father claimed that the magistrate was impressed with the efforts of father had made and with his acceptance that the relationship was over. Without conviction, the father was placed on a community-based order of one year requiring the father to complete 150 hours work to be under supervision. The father said that he had successfully completed the work and remained under supervision. He said that the officers were satisfied with his progress and said that he had not reoffended. The father also said that he was prepared to attend the problem behaviour clinic at [Y]. As mentioned above, the father ultimately was not accepted in the [Y] program.
In an affidavit sworn on 25 October 2007, the father said that his father, who had been supervising the time with the children, would give evidence at the hearing scheduled to begin that day. The hearing was adjourned. The paternal grandfather did not give evidence at the adjourned hearing.
It seems that the father began weekly group therapy with Dr S in early November 2007. The father did not tell Dr S that he was required to attend pursuant to a court order. The father attended most Wednesdays, except when the group took a break from Christmas 2007 to the end of January 2008. However, the father stopped attending entirely in March 2008 after he had attended a total of about 10 sessions out of the 20 session program. He said that he was no longer able to attend on Wednesdays between 7.00 pm and 9.00 pm because he had obtained full-time employment and worked evening shifts.
The father told the court that he had arranged with Dr S to attend monthly individual therapy sessions instead of the weekly group sessions. However, the father also told court on the first day of the hearing that in view of the recommendations in the family report, he had asked his employer if he could be absent from work for two and half hours each Wednesday to attend the group sessions. On the second day of the hearing, the father’s solicitor advised the court that the father had been given the necessary permission by his employer.
The mother said, and I accept, that on 3 January 2008, while the children were having telephone time with their father, he asked to speak to the mother. He said that he would like to go out as a family again. The mother said that they needed to move on. The father replied, “Fuck you”. [A] heard her father say that to her mother and became upset. The mother reassured her.
The mother said, and I accept, that on 6 January 2008, [A] told her that her father had taken the girls to the park by himself because the grandmother was sick and the grandfather was too tired. In the park, the father told [A] to give her mother the message that, “Daddy has to follow his heart and get back with Mummy. His heart is telling him this.” The father accepted in cross examination that he may have said these things to [A].
The mother said, and I accept, that on 20 January 2008 [B] reminded [A] that their father had asked [A] to pass on a message to their mother. [A] told her mother that the father had said, “His heart is only for you and he dreams of the time that you were with him and we took you to Chinese for tea.” The father took exception to the reference to the Chinese meal but did not dispute the remainder of the allegation. He said that often [A] or [B] would say to him that they wished their parents were back together and the father would say that he wished that as well.
It was put to the father that if the children said they wished their parents were back together, it would be better for them if the father said that the mother and father had decided to live apart. The father said that was not true and he did not decide to separate from the mother. He told the court that he wished they could get back together.
The mother said, and I accept, that on 31 January 2008 during a telephone conversation, the father told [B] that he was a good boy now and he goes to his men's group. The mother said, and I accept, that on 26 February 2008 during a telephone conversation, the father told [B] that her mother was a bitch. [B] was upset by this. The father conceded that he may have told [B] that her mother was a bitch.
The mother said and I accept that on 11 March 2008, during a telephone conversation, [A] told her father that [C] had come over for tea. The father asked whether [C] was the mother’s boyfriend. [A] said he was not. The father then said to [A], “tell Mum I will beat him up, tell Mummy ‘dead [C]’”. [A] was extremely upset by her father’s threat. She was unable to sleep and cried for most of the night. The father conceded that he had told [A] that he would beat up [C] and had told [A] to tell her mother “dead [C]”. However, the father emphasised that he had not threatened the mother herself at that time.
The mother said that at about 10.00 am on 13 March 2008, Dr S rang her and said that he was concerned about the things the father had said at the group therapy session the previous evening. The father had disclosed to the group the threats that he had made in the hearing of [A] and [B] to the effect that he was going to beat up and kill [C]. Dr S said that the group spoke at length about the effect of such threats on [A] and [B]. Dr S told the mother that he thought that the effect of the group discussion would be to stop the father making such threats.
The mother said, and I accept, that on the evening of 13 March 2008 during a telephone conversation with [A] the father said the mother is a slut and is in for a beating. He also said that [C] was going to get his head kicked in. The father asked [B] what her new daddy was like. The children were again very distressed by this telephone conversation and had difficulty sleeping at night.
The father conceded that he had told [A] that her mother was a slut and that [C] was going to get his head kicked in. The father also conceded that he might have asked [B] what her new daddy was like. However, the father denied that he had said that the mother was in for a beating. I do not accept the father's denial. I prefer the mother's evidence on this matter.
When it was put to the father that he had said very inappropriate things to the children his response was, “If you say things you say things.” He also said that, “Just because you're counselled doesn't mean you're going to” achieve behavioural change.
The father maintained that he had been doing very well until [A] mentioned the existence of [C] at which point the father said that he “just saw red”. He maintained that he loved the mother and wanted to get the family back together. When it was put to him that another 10 weeks of counselling with Dr S would not change his point of view, the father said that he could not answer the question.
The orders of 30 January 2007 required the father to remain in his vehicle at changeover. When returning the children to their mother on 16 March 2008, the father agreed that he got out of his car. He said that he did not smoke in his car and simply got out to have a cigarette. He said it was no big deal.
The father said in evidence that on 16 March 2008 not only did he have a cigarette outside of his vehicle but he had carried some presents for the children to the mother's vehicle and strapped [A] into her car seat in the back of the mother's car. At the same time, the mother was strapping [B] in to her car seat in the back of the mother's car. As the mother leant over, the father noticed that she had a tattoo on her upper chest. The father then said, “You couldn't get a tattoo for me. You’re fucked. Your man's dead. Your man's a dead bloke. Tell him to watch his back.” The father conceded that he had said these things in front of his children and that they would have heard him. He agreed that what he had said probably would have frightened his children.
The mother said that on the way home, [B] told her that, “Daddy said that I should hate [C] and if he speaks to me I must say shut up.” The father said that he had told [B] that if [C] told her off she should tell him to shut up. I prefer the mother’s evidence on this point.
The mother said that on 18 March 2008, the father asked the mother if he could call [A] on her birthday the following Saturday. The mother agreed. The mother said that the father then told [A] not to worry if he did not call as he did not know what would happen in the next couple of days. The father denied saying this. I prefer the mother's evidence. The mother also said that [A] was distressed by the conversation.
I also accept that.
The mother said, and I accept, that on 20 March 2008, during telephone time with the children, the father asked to speak to the mother. He began to tell her what he was going to do to [C]. The mother hung up the telephone. The father rang a further 10 times that evening but the mother did not answer the telephone.
The father agreed in oral evidence that he had sent the mother a Mother's Day card in early May 2008. He said that he tells the children that he hopes that he and the mother can get back together. He said that he just has to get himself right and show the mother that he is how he was before and maybe in a year or two she will accept him back. It was put to the father at the hearing that the mother had been very definite in her evidence that she would not reconcile with the father. He replied, “That's because she's very angry with me at the moment.”
The father was asked in cross-examination to consider certain observations made by Mr Laidler in his second report. Mr Laidler concluded that the matter had not progressed to a point where [A] and [B] could spend regular quality time with their father. Mr Laidler said this was principally because the father was unable to resolve his emotional attachment to the mother and his consequential threats in the presence of the children to kill the mother’s male friend. Mr Laidler said that the father “just does not get it” and that [A] and [B] see the threats to their mother as threats to them.
The father said that he had not read Mr Laidler's report although he had been told something about it. He said that it was a pack of lies. In relation to the matters set out in the previous paragraph, the father said, “Well sorry for loving somebody.”
The father agreed that he sometimes took the children to the park behind his parents’ house without either grandparent joining them. It was on these occasions that he spoke to the children about reconciling with the mother. He said it did not bother him that it was a breach of the orders that he spend time with the children under supervision.
The mother said, and I accept, that the children are fearful for her safety. They have trouble settling at night. They speak of the threats the father has made and worry about what he might do. The mother said that the father, to her knowledge, had made no more threats since March 2008 but had persisted in telling [A] and [B] to tell their mother that he loves her and that they will get married again. The mother said that she wanted the father to get help so that he could be a good father to their daughters.
While giving evidence the father was very emotional. He cried a number of times and swore repeatedly. While sitting in the body of the court, the father frequently interjected to dispute the evidence or submissions, despite being told not to by both the court and his solicitor. He was visibly agitated. The father is clearly a person with very little self-control and a limited ability to listen respectfully to other people.
Dr K’s evidence
A psychiatrist, Dr K, provided two reports to the court, the first dated 24 May 2007 and the second dated 3 April 2008. None of the parties cross-examined Dr K and I accept his evidence.
In his first report, Dr K said that the father was uncertain why the marriage broke up but recalled that the mother wanted him to have regular employment and to stop his abuse of marijuana. Dr K said that from a psychiatric point of view, the father presented with:
a)an immature personality disorder;
b)substance abuse which seemed to be in a state of remission; and
c)an adjustment disorder with some anxiety and depression.
Dr K said that the father's basic difficulty has been “a rather gross immaturity, not of the psychopathic type, but rather of a failure to mature emotionally.” Dr K said that the father had become “rather emotionally dependent” on the mother and “could not cope with her leaving him.”
Dr K noted that the father:
a)had difficulties with his feelings now that he had lost his family;
b)had been seen by the CAT team when he had thoughts of suicide;
c)had feelings of anger towards the mother;
d)recognised that he had made threats towards the mother but felt that he had made those threats because he wanted her back; and
e)had broken intervention orders but felt that his breaches did not hurt anyone.
Dr K said that, in his opinion, the father often makes very serious threats out of immature frustration. Dr K did not consider that the father was a danger to himself or others but said that he was irresponsible and threw emotional tantrums as if he were two or three-year-old. Dr K considered that the father’s time with the children should be supervised for a reasonably lengthy period because verbally he has made very serious threats.
Dr K in his first report said that his prognosis was that the father would remain immature and prone to childish emotional behaviour. Dr K considered that the father was a man with gross immaturity of a childlike type rather than of a psychopathic type. Dr K thought that the father made threats because he was hurt and did not think of the consequences. Dr K thought that the father’s behaviour may improve to a degree if he remained substance free.
In his second report, Dr K again expressed the view that the father had an immature personality disorder and was still having difficulty accepting that his relationship with the mother had ended. Dr K did not consider that the father was a physical danger to himself or others. However Dr K said that the father needed “to realise that the children are affected by statements of aggression from him”.
Dr K considered that the father had benefited from attendance at a men's responsibility group but that he had not continued with it because it interfered with his job. Dr K thought that the father’s verbal outbursts appeared to have lessened. Dr K considered that from the narrow psychiatric viewpoint, the father was capable of unsupervised access, subject to the evidence that emerged in court.
Mr Laidler's evidence
A family consultant, Terry Laidler, provided two reports to the court, the first dated 19 July 2007 and the second dated 27 May 2008.
In Mr Laidler's first report, he noted that the father had breached the intervention order 13 times since it was issued as a result had spent one week in remand and had been fined $850. At the time of the interviews there were three outstanding charges for breaches of the intervention order. Mr Laidler reported that [A] and [B] had spent supervised time with their father in accordance with the orders of 30 January 2007 largely without incident.
Mr Laidler said that the father did not believe the relationship between himself and the mother was over. The father told Mr Laidler that the children had told the father that they wanted him to come home and he told the children that he wished he could.
Mr Laidler considered that the father did not understand the seriousness of his breaches of the intervention order. The father seemed to Mr Laidler to consider that his actions were those that might reasonably be expected of someone who had been thwarted.
Mr Laidler considered that the father did not appreciate the adverse impact his actions had on his daughters and did not appreciate how dangerous the ongoing conflict between the parents was to [A] and [B], and how dangerous it was to the father's relationship with them.
Mr Laidler reported that the mother was a frank and friendly woman who seemed entirely focused on the safety and good care of her children. Mr Laidler considered the mother to be a woman stressed by the harassment she has suffered from the father and considered the mother to be genuine in her desire to act protectively towards her daughters.
Mr Laidler found [A] to be a friendly and easily engaged young girl. She asked Mr Laidler to tell the father to stop saying bad things about the mother and to stop saying things that are scary. [A] told Mr Laidler that she wanted to spend two nights with her father. She said she was not scared about spending time with her father but sometimes gets “a nervous tummy”. [A] told Mr Laidler that she felt better when her grandfather was there.
[A] was somewhat apprehensive about overnight stays with her father. She told Mr Laidler, “You've got to tell grandma to stop saying ‘Rats come in your hair or spiders.’” Mr Laidler said that he would write that in his report and [B] then thought that overnight time with her father might be alright. [B] also said that she wanted to be able to ring her mother when she was staying with her father but they would not let her.
Mr Laidler observed [A] and [B] with their parents. He noticed no anxiety or apprehension. He saw the children being affectionate with both of their parents and having matter-of-fact conversations with both of them. Mr Laidler saw no signs of acting out, disruption, withdrawal or attention seeking. Mr Laidler observed that both parents were attentive to [A] and [B] and managed their behaviour with simple verbal instructions.
In relation to Dr K's view that the father was not an actual danger to himself or others, Mr Laidler expressed strong disagreement. He said that the father needs to know that his behaviour puts himself and others including his children at significant psychological risk and he needs to take immediate steps to curb and address his behaviour. I suspect that Dr K was concerned mostly with physical danger and Mr Laidler was more concerned about psychological danger.
Mr Laidler said that much of the father's behaviour was at the extreme end of the continuum of aggression and abuse that characterises male dominance violence. Mr Laidler considered that the father displayed characteristics of those who stalk and harass because of rejection.
Mr Laidler said that the father's behaviour was dysfunctional and likely to damage his relationship with his daughters.
Mr Laidler said that [A] and [B] were becoming increasingly aware of the ongoing conflict between their parents. Mr Laidler considered that if the conflict did not end the children would come to see the attacks on and aggression towards the mother as threats to themselves and their own security. If that happened, Mr Laidler considered that the children would align themselves exclusively with their mother and would become resistant to spending time with their father. Mr Laidler recommended that the father immediately get expert professional help from [Y] to control his dysfunctional behaviour.
In his second report, Mr Laidler noted that the father's focus was still on his wish to reconcile with the mother and he seemed unable to disentangle his relationship with his daughters from his relationship with their mother.
Mr Laidler said that he put to the father directly that the matter would not resolve until the father controlled himself and stayed away from the mother. The father's response was, “I still love her” and “I'm not sure she wants to be left alone”. Mr Laidler said he challenged those sentiments but the father did not appear to take his point.
Mr Laidler considered that the mother remained well attuned to [A] and [B] and emotionally. The mother noted that the children were really upset when the father threatened to kill her friend, [C].
Mr Laidler said he shared the mothers concerns about overnight contact. He said that he was confident that she was not seeking to cut children off from their father and that she would continue to act protectively towards the children.
[A] told Mr Laidler that “seeing Dad is going good”. She thought one night at a time with her father would be alright. However, later, [A] said that she no longer wished to stay overnight with her father.
[A] told Mr Laidler that she had been scared when her father had said he wanted to kill [C], but he had later told them that he no longer wanted to and [A] said, “so that’s OK.” [A] told Mr Laidler that [B] sometimes cries and has nightmares. [A] said that she climbed into bed with [B] and then she stops crying.
[B] was definite that she did not wish to stay overnight with her father. She was concerned that her father keeps saying bad things about her mother and gets angry. [B] was also concerned that her grandmother sometimes yells at her father and her grandfather and she said she does not like people yelling and being angry. [B] also expressed concern that her grandmother had smacked her.
Mr Laidler concluded that the matter had not progressed to a point where [A] and [B] could spend regular quality time with their father. Mr Laidler said this was principally because the father was unable to resolve his emotional attachment to the mother and his consequential threats in the presence of the children to kill the mother’s male friend.
Mr Laidler said that the father “just does not get it” and that [A] and [B] see the threats to their mother as threats to them. Mr Laidler reported that the children felt some ambivalence about spending time with their father because their trust in their father had not recovered in the context of the father's continuing harassment of their mother.
Mr Laidler considered that supervision by the paternal grandparents should continue. However, even with supervision, Mr Laidler said that problems will remain until the father is able to exercise self-discipline in his dealings with the mother. Mr Laidler did not consider that the father posed a direct physical threat to the girls but considered that his behaviour towards their mother will continue to distress them if he does not curb it.
Mr Laidler recommended that [A] and [B] spend alternate weekends with their father from Saturday morning until Sunday evening under the broad supervision of the paternal grandparents. Mr Laidler recommended that changeover occur at a contact centre.
Mr Laidler considered that [A] and [B] were comfortable once they were with their father. He said that to collude with the low levels of apprehension they display about being with their father overnight is to risk increasing their levels of apprehension.
Mr Laidler did not consider that the father posed a direct physical threat to the girls. However, he conceded that the father's behaviour towards the mother will continue to distress [A] and [B] if he cannot curb it. Mr Laidler considered that random drug screening should continue.
Mr Laidler concluded that:
If Mr Tozer acts responsibly, the overall value to the girls in rebuilding their trust in their father that a stable, non-conflictual arrangement will have, in my view, outweighs the limited emotional risks it poses.
Mr Laidler was cross-examined. Mr Laidler expressed the opinion that those who harass for the reasons the father does are most likely to carry out the threats. However, Mr Laidler considered that as long as the father did not abuse alcohol or drugs, his threats were less likely to spill over into action. Mr Laidler considered that the father was likely to continue making threats towards the mother and her friend until he accepts that their relationship is over.
Mr Laidler said that the father's threats towards the mother and her friend had a damaging effect on the children. He said that the threats made the children apprehensive about their father, led them to mistrust their father and jeopardised their relationship with him. Mr Laidler said the father's threats were psychologically damaging for his children.
Mr Laidler agreed that when he said, “If Mr Tozer acts responsibly…”, it was a big “if”. He said that the prospect of the father acting responsibly was tied to him accepting the end of his relationship with the mother. Mr Laidler considered that the best method to help the father come to terms with the end of his relationship with the mother was cognitive behavioural therapy which would attack the father’s illusory beliefs. Mr Laidler thought that Dr S's group may challenge the father's illusions. Mr Laidler considered that the father would not accept the end of his relationship with the mother without outside assistance.
Mr Laidler was asked about the “limited emotional risk” for the children that he had referred to. He said that he did not mean a minor risk. However, he considered that his recommendations reduced the opportunities for the father to say inappropriate things to the children.
Mr Laidler said that the best protector for children after separation was a stable relationship with their primary carer. He said there had been little research on the effect of the children's relationship with their other parent.
Mr Laidler said that there was an emotional risk to the children if the father’s threatening and harassing behaviour continued. He was asked if it would not be better to not take the risk of children being emotionally damaged until the father had accepted that his relationship with the mother had ended. The father interjected saying, “That’s not going to happen.” Mr Laidler agreed that it would be better not to take the risk.
Mr Laidler said that the father needed to be actively involved in therapy. When asked how the father could be persuaded to become actively involved in therapy, Mr Laidler said that he did not know.
Mr Laidler said that he believed the mother would continue to act protectively towards the children and would continue to actively encourage the children to have a relationship with their father provided that could be achieved safely.
Mr Laidler said that [A] and [B] loved their father but were somewhat scared of him.
The father’s solicitor put it to Mr Laidler that if the father said something inappropriate on the telephone to the children, the mother could simply hang up. However, Mr Laidler pointed out that the damage would already have been done before the telephone call could be ended.
Mr Laidler considered that the paternal grandparents would protect the children from physical harm but said they could not protect the children from the inappropriate comments the father made. Mr Laidler said that the children needed to have quality time with their father rather than a large quantity of time. He said that he could not say that six hours with the father was better than two hours with the father.
Counsel for the mother pointed out to Mr Laidler that the father did not only makes threats, but used the children as intermediaries to tell the mother that he still loves her. Mr Laidler accepted that this would be stressful for her and may affect her parenting ability. However,
Mr Laidler considered that psychologically the mother was very robust. Mr Laidler also noted that the father had learnt not to make comments to the children about his love for the mother in the presence of the grandparents. Mr Laidler considered that the father could also learn not to say such things elsewhere.
Mr Laidler observed that the father did not understand that it was his own behaviour that was jeopardising his relationship with his children. However, Mr Laidler considered that [A] had a strong bond with her father although it was tinged with apprehension. Mr Laidler considered that [B] had a less strong bond with her father and was more apprehensive of him.
Mr Laidler said that the mother had parented the children very well and told them how to perceive the father's statements to them in a way that minimised the damage to them. Mr Laidler also considered that it would be preferable to remove the children from the conflict between the parents before more harm was done to them.
Dr S's evidence
Dr S said that he was a medical doctor who ran a group for men who are violent and abusive. He said the father commenced with the program on the first Wednesday after 1 November 2007. He said that the father attended about 10 sessions until early March 2008. There was a break from late December 2007 to late January or early February 2008.
Dr S said that the course consisted of a two-hour session once per week for 20 weeks followed by a two hour session once per month for six months. The participants were also encouraged to see the course facilitators from time to time. If significant improvement had not been made after the first 20 weeks, it was recommended that the sessions continue on weekly rather than a monthly basis.
The aim of the course was to help men to become more responsible and respectful towards women and children. Dr S said that progress was measured by feedback from the women and children concerned.
Dr S said that the feedback from the mother had not been as positive as he would have liked. Additionally, Dr S said that the father himself had reported his own inappropriate behaviour to the group. In particular, on 12 March 2008, the father had reported his threats towards [C]. The group discussed with the father at length the damage that may have been done to the girls, and to the father's relationship with them, by the father telling the girls that he planned to kill [C].
Dr S said that after the group discussion the father had hoped he would be able to change his ways. However, on the following Sunday,
16 March 2008, the father made further threats towards [C] and the mother in the presence of [A] and [B]- Rae.
Dr S said that the father then stopped attending the weekly sessions. However, he saw Dr S on 7 April 2008 and 5 May 2008. Dr S considered that the father needed intensive sessions once per week for at least a few months.
Dr S noted that the issues that were discussed on 7 April 2008 included that the father inappropriately called the mother “babe” and continued to inappropriately tell the girls to tell their mother that he loves her. It was explained to the father that this sort of comment puts untoward pressure on his daughters. Dr S said that similar things were discussed on 5 May 2008, especially the need to stop talking to the girls about their parents getting back together.
When asked whether the father appeared to be taking on board the lessons from the counselling sessions, Dr S said that the participants often appear to accept what is said to them but “the proof is in the pudding”. Dr S was concerned that the father was still asking his daughters to give messages to the mother about wanting to get back together. When asked whether he could give the court any hope that further sessions with him might help the father, Dr S said it was possible but difficult to predict.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60cc(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. I will address those considerations in order.
2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
[A] and [B] both love the father although they are somewhat fearful of him. There is a clear benefit to the children in having a meaningful relationship with their father, provided that they can do so without psychological or physical harm befalling them.
The children clearly have a meaningful relationship with their mother. She provides them with admirable parenting.
2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I accept Dr K’s evidence that there is little risk of the father physically harming his children. There have been no allegations against the father of physical violence in the past. However, the children are at risk of psychological harm from their father. He has threatened in their hearing to beat up their mother and kill her friend. This is obviously very frightening for young children. I accept the mother's evidence that the children cried and found it difficult to settle at night after the father made these threats. There is a risk of the children suffering long-term psychological damage as a result of these threats, and a risk that the threats will cause the children to distance themselves from the father. That in itself would be to their detriment. They should be able to have a loving relationship with their father, free of any fear.
The father has also persisted in using his children as a conduit for messages of love to their mother, although he is prohibited from communicating with her. The father should not use his children in this way. It is emotionally damaging for them to be caught up in a conflict between their parents and to hear conflicting messages from their parents about whether they will reconcile.
3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[A] and [B] indicated to Mr Laidler that they did not wish to spend overnight time with the father. They are apprehensive about spending overnight time with him although they seem to settle once they are there. Both children are very young. The court should give limited weight to their views, but take into account the circumstances giving rise to those views.
3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children obviously have a very sound relationship with their mother. The children have a somewhat ambivalent relationship with their father. They love him but he sometimes frightens them and inappropriately involves them in adult issues. The children have some concerns about the paternal grandmother but seem to have a good relationship with the paternal grandfather.
3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
In view of the threats made by the father to rape and kill the mother, and kill her friend, she has been remarkably willing to facilitate a close and continuing relationship between the children and their father. The father has never sought to limit the relationship between the children and their mother who has always been their primary carer.
3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The change in the children’s circumstances that is proposed is to reduce their time with the father from eight hours each Sunday at his parent's home to two hours each Sunday as a contact centre, at least until the father has learned to modify his behaviour. Presumably, the grandparents could attend the contact centre with the father from time to time. Mr Laidler said that quality rather than quantity of time was important. I would not anticipate the reduction in time adversely affecting the children's relationships with their father and grandparents. However, spending time at a contact centre may protect the children from the psychological harm that their father inflicts on them.
3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This factor is not of particular significance in this case.
3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother appears to be well able to provide for the children's emotional and intellectual needs. The father on the other hand does not appear to understand the children's need to not be frightened by their own father and need to be allowed to enjoy their childhoods without being involved in adult issues.
3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children in this case are still very young and vulnerable. They appear to have the level of maturity that would be expected of children of their age. The mother appears to have a great deal of emotional maturity. She has coped very well with the father’s harassment of her.
On the other hand, the father has been assessed by Dr K as suffering from a gross immaturity disorder. The father throws tantrums like a two year old. He appears to have no insight at all into the damage his behaviour does to others. He appears to be totally self absorbed and has no regard for anyone else's feelings.
3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has an exceptionally good attitude to the responsibilities of parenthood. She is doing her best to protect the children from the father’s damaging behaviour.
The father does not appear to understand that his role as a father is to protect the children from harm. He fails to understand that his actions are damaging to his children.
3(j) any family violence involving the child or a member of the child’s family
There has been no physical violence in this family. However, the father has threatened to climb through the mother's roof and rape and kill her, and has also more recently threatened to give her a beating. The mother made a statement to the police saying that she was in fear for her safety, had changed the locks on the house and bolted down the manhole. I accept that the father’s threats made the mother reasonably fear for her safety. Accordingly, the threats fall within the definition of family violence set out in s.4(1) of the Act. It is immaterial that the threats occurred two and half years ago, especially as the father has more recently threatened to beat the mother up.
3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
A family violence order was made against the husband on 7 April 2006 and has been varied and extended. It will last until 3 April 2009. The current order is a final order.
3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Generally, it is preferable to have finality in litigation. However, in this case, it is likely that the court would consider that it was in the best interests of the children to have much more time with their father if he were able to modify his behaviour. However, until the father is able to change his ways, it is very difficult to judge how much additional time the children should spend with their father and when it should begin.
It may be that, if the father is able to improve his behaviour, the mother will regain her trust in him and will voluntarily agree to the children spending more time with him. However, it may be that further proceedings would be in the best interests of the children.
3(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that are relevant.
Equal shared parental responsibility
Section 61da of the Act provides as follows:
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.
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.
The mother and the independent children's lawyer submit that the mother should have sole parental responsibility for the children. The independent children's lawyer submits that the presumption does not apply in this case because the father has perpetrated on the mother family violence within the meaning of s.4(1) of the Act. I accept that submission.
In the alternative, the mother submits that it is not feasible for the parents to have equal shared parental responsibility in the circumstances of this case. The mother submits that equal shared parental responsibility necessitates consultation and communication between the parents. In the present case, an intervention order prohibits the father communicating with the mother until 3 April 2009. Accordingly, the mother submits that the presumption is rebutted under s.61DA (4) of the Act.
The mother referred to Oscar v Traynor [2008] FamCA 95 at [253-4], where Murphy J said that equal shared parental responsibility required active consultation. Where the parties were incapable of such consultation, equal shared parental responsibility was contraindicated.
The father noted that the final consent orders made on 7 April 2006 provided for equal shared parental responsibility and submitted that it was appropriate for that regime to continue. I am unable to accept that submission.
As things stand, the mother and father are unable to communicate with each other because of the intervention order. The intervention order is in place because the father has repeatedly failed to behave appropriately towards the mother and the children. If he is able to change his behaviour and learn to deal appropriately with the mother, it may be that orders will be made in the future for equal shared parental responsibility. At the moment, however, I do not consider on the evidence that it is viable for there to be equal shared parental responsibility. The obvious consequence is that the mother should have sole parental responsibility for the children.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility, s.65daa of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. Having found that the parents in this case are not to have equal shared parental responsibility, it is unnecessary for the court to consider whether the children should spend equal or substantial and significant time with each parent. In any event, neither party suggested that it was in the best interest of the children to spend either equal or substantial and significant time with each parent.
The time to be spent by the children with their father
The father appears to think that it is alright to say things in anger. He seems to think that even a threat to rape and kill is of no consequence if it is said in anger. The father is sadly mistaken. Words said in anger can be very damaging, very frightening and very destructive of relationships. The father in fact has jeopardised his relationship with his children by making threats in their hearing to beat up and kill [C] and to beat up their mother. The father has caused his children to be frightened of him and to be apprehensive about spending time with him.
The father has obviously suffered and continues to suffer enormous grief at the loss of his relationship with the mother. However, that is no excuse for lashing out at others. Many people experience profound loss during their lives. Nearly all of them manage to deal with their emotions without frightening their own children.
The father appears to be unable to understand the effect of his words on other people. He needs to spend a few hours trying to think of how his words might have made the mother and his children feel. He needs to think how he would feel if someone treated him the way he has treated them. He needs to think how he would feel if someone stronger than him threatened to rape him and kill him. He needs to think how he would feel if someone threatened to kill his friend. He needs to think how he would feel if someone threatened to beat him up. He needs to think how he would have felt as a five year old to hear that his father was going to kill a friend of his mother and beat his mother up.
He needs to think how he would have felt, as a five year old, if his father had called his mother a slut. He needs to think how he would feel if someone tried to frighten him into not starting a new relationship.
Hopefully, if the father thinks about these things, he will realise that words said in anger can frighten other people and make them not want to have anything to do with him. Hopefully, he will realise that he should never make any threats against anyone again. Hopefully, he will have the self-control to carry through with that realisation.
There are many couples who after separation are able to be together at family celebrations such as birthdays and Christmas. They are able to be together on such occasions because they trust each other to behave appropriately and to only say appropriate things. The father has almost destroyed any possibility of the mother ever learning to trust him again. However, she does appear to be a very resilient woman. It may be that if the father behaves properly for a good length of time, the mother and the father will eventually be able to attend family occasions together. That would be to the benefit of their children.
Additionally, the father obviously does not accept that his relationship with the mother is over for good. She was quite definite that it was finished. Whether it is or not, the father must not speak with the children about the possibility of reconciling with their mother.
It causes them confusion and involves them in adult conflicts. It is bad for them. It also constitutes persistent harassment of the mother.
The father seems to think that his breaches of the intervention order were minor, because they just involved sending flowers, cards and messages. However, the mother did not want to receive them. The father should understand that the mother does not want his attention. In those circumstances, even loving gestures are oppressive. The father should respect the mother’s wishes and leave her alone.
Many people spend years being in love with someone who does not love them back. They love them from afar and let them get on with their lives. That is what the father must do in this case. The father needs to understand the difference between wanting a person, and caring about that person’s own wants and needs. If the father really loves the mother, in the sense of caring about what she wants and needs, he will let her be free to do as she chooses. He will stop trying to force her to do what he wants. Indeed, if the father simply had the basic respect for the mother that we should all have for everyone else, he would realise that he has no right to try to impose his demands on her. He would leave her alone.
The father seems to be concerned about the children getting a new father. If the mother does start a new relationship, the new partner will probably spend a good deal of time with the children. However, that will not make that person their father. The reality is that the better the father behaves, the more time he will be able to have with his children, and the more of a father he will be able to be to them.
If the mother does start a new relationship, it will no doubt be very painful for the father. However, mature adults manage to deal with their pain without trying to emotionally hurt others. When the father asks the children about their new daddy, he knows it will upset and confuse them. I suspect that he thinks it is alright to upset his children in this way. He is mistaken.
The father said through his solicitor that he would consent to orders that he be restrained from discussing reconciliation with the mother in the presence or hearing of the children. The mother’s counsel expressed doubt that such an order would have very much effect on the father. She said that the father had breached the intervention order repeatedly and had flouted the order of this court requiring him to remain in his vehicle at changeover. Nevertheless, I consider that such an order is very much in the interests of the children. If the father breaches it, he may well suffer the consequences.
The father also said that he would consent to an order that he be restrained from using illicit substances during and 12 hours prior to spending any time with the children. Given that Dr K and Mr Laidler both expressed the view that substance abuse made the father’s behaviour deteriorate, such an order is in the best interests of the children and will be made. Having said that, I note that there is nothing to suggest that the father has used illicit substances since October 2005. The father is to be commended for that.
It is clear that the father should continue with his weekly therapy with Dr S. He said that he had obtained permission from his employer to attend each week and told the court that he would do so. There will be an order accordingly. The questions that remain are how many sessions the father will need to attend and what arrangements should be made in the meantime.
The final hearing was adjourned for six months to enable the father to obtain therapy. Unfortunately, his therapy had not been successful before the matter came back to court on the adjourned date. None of the parties suggested that the matter should be adjourned again. Accordingly, the court is required to make final orders when a critical factor is not known, namely, whether and if so when the father will be capable of being with his children without frightening, distressing or confusing them.
I am not satisfied that the arrangement made on 30 January 2007 should continue. It is not working. The father is abusing his telephone time with the children by frightening them, distressing them and confusing them. The father’s solicitor said that it was easy enough for the mother to hang up the telephone if the father said anything inappropriate. However, as Mr Laidler said, by then the damage would have been done. I consider that the benefit to the children in having telephone contact with their father is outweighed by the distress, fear and confusion the father causes his children during his telephone calls. There should be no telephone contact until the father has learned not to cause his children fear, distress or confusion.
The father has also abused the arrangements for changeover. He was ordered on 30 January 2007 to remain in his vehicle at changeover. He failed to do so on 16 March 2008. He seemed to think that wanting a cigarette was a sufficient reason to breach court orders. It was not. In any event, the father’s conduct escalated from there. He put parcels in the mother’s car, strapped [A] into her car seat and then proceeded to tell the mother, in the presence and hearing of the children, “You couldn't get a tattoo for me. You’re fucked. Your man's dead. Your man's a dead bloke. Tell him to watch his back.” This was, for obvious reasons, very frightening for the children.
The father agreed at the hearing that changeover should not continue to be at [Z] and suggested that it be at a contact centre, in accordance with the recommendation of Mr Laidler. I agree that this is a clear case where changeover needs to be at a contact centre, at least until the father has learned not to cause his children fear, distress or confusion.
The father has also abused the arrangement whereby the children spent Sundays with him under supervision. He took the children away from the supervisor and told them about how much he wanted to reconcile with their mother. For reasons already explained, discussions of this sort cause the children discomfort and confusion. It involves them in adult issues. The father should show some self-control and not use his children in this way.
Having considered all of the evidence and submissions, and all of the matters stipulated in the Act, I consider that it is in the best interests of the children that, until the father learns not to frighten, distress or confuse his children, they should only spend time with him in a contact centre. That situation should continue until Dr S certifies that in his opinion, there is a very low risk of the father frightening or distressing his children or confusing them by discussing with them the possibility of their parents reconciling.
The mother and the independent children’s lawyer submitted that once the father had demonstrated that he was no longer a risk to the children’s psychological well-being, the orders should provide for the children to spend time with the father by agreement between the mother and the father. I am confident that the mother would agree to a sensible arrangement that enabled the children to spend a reasonable amount of time with their father. However, I consider that the father would be assisted by the court spelling out what those arrangements will be, once Dr S provides his certificate. To that extent, it is also in the best interests of the children that the court spells out the future arrangements.
Once Dr S has provided the certificate, it is in the best interests of the children that they resume spending time with and communicating with their father in the normal way. Accordingly, once the certificate is provided, telephone contact on Tuesdays and Thursdays should resume and time on Sundays should resume. As the father conceded, the time on Sundays should build up gradually. There will be orders to that effect. I do not consider that there will any need for supervision at that stage.
I will also order that there be liberty to apply, in case there are issues about the contact centre exhausting its resources as far as this family is concerned, or issues about Dr S providing the certificate. As the father heard during the hearing, contact centres usually only provide their services to each family for a few months. The time is extendable with a court order, but not beyond a matter of months. Accordingly, it is very much in the father’s interests, and in the children’s interests, that the father do his very best to absorb the matters that are put to him in therapy and learn as soon as possible not to frighten, distress or confuse his children.
There will also be an order that the independent children’s lawyer provide a copy of the orders and reasons to Dr S and to [X] Contact Centre. It will enable them to understand the background to this family. The independent children’s lawyer asked that he be discharged immediately. I do not consider that to be appropriate in the circumstances of this case. The independent children’s lawyer will be discharged in 12 months, or as otherwise ordered. There will be liberty to apply in that regard as well.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Sarah Hession
Date: 5 June 2008
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