Watton & Watton
[2022] FedCFamC2F 1095
•18 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Watton & Watton [2022] FedCFamC2F 1095
File number(s): MLC 6182 of 2020 Judgment of: JUDGE BENDER Date of judgment: 18 August 2022 Catchwords: FAMILY LAW – PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children.
FAMILY LAW – HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 61DA, 65DAA Cases cited: Goode & Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 269 Date of hearing: 26 April 2022, 27 April 2022, 28 April 2022, 5 May 2022, 6 May 2022 Place: Melbourne Counsel for Applicant: Ms O’Connell Counsel for First Respondent: Mr Cenacchi Counsel for Second Respondent: Mr Byrne Counsel for Independent Children’s Lawyer: Ms Elleray ORDERS
MLC 6182 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WATTON
Applicant
AND: MR WATTON
First Respondent
MR B WATTON & MS C WATTON
Second RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
18 AUGUST 2022
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the children of the relationship X born in 2011 and Y born in 2016.
2.X and Y live with the Mother.
3.There be no face to face contact or direct communication between the Father and X and Y.
4.The Father may forward to X and Y, via a contact post office address provided to him by the Mother for that purpose, cards, gifts and letters on their birthdays, at Easter and Christmas.
5.The Mother be at liberty to examine any gifts and read any cards and letters from the Father prior to providing them to X and Y to ensure they are, in her judgment, appropriate and, if so, she shall provide same to X and Y.
6.The Mother shall notify the Father of any serious accident or illness suffered by X and Y or either of them as soon as practicable after such illness or injury via a contact address he provides to her for that purpose.
7.The Mother and Father, their servants and agents, be restrained from:
(a)discussing these proceedings with X and Y or either of them, or within their hearing;
(b)denigrating the other parent or member of their family to X and Y or either of them, or within their hearing; and
(c)exposing X and Y or either of them to any form of violence, threats or intimidation.
8.The Mother be at liberty to provide a copy of these orders to X and Y’s kindergarten/school and to any of X and Y’s treating health professionals.
9.The Mother shall do all things necessary to enable X and Y to communicate with the Paternal Grandparents by Skype or such other agreed technology on such days and at such times as are agreed between the parties, and failing agreement as follows:
(a)for between 15 – 30 minutes, each Tuesday between 7:00pm and 7:30pm;
(b)on each of X and Y’s birthdays between 7:00pm and 7:30pm;
(c)on each of the Paternal Grandparent’s birthdays between 7:00pm and 7:30pm; and
(d)on Easter Sunday and on Christmas Day.
10.The Paternal Grandparents may forward to X and Y, via a contact post office address provided to them by the Mother for that purpose, cards, gifts and letters on their birthdays, at Easter and Christmas.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION
This is a parenting matter which relates to what time, if any, the parties’ two children X born in 2011 and Y born in 2016 (‘Y’) spend with the Father and, independently of the Father, with the Paternal Grandparents.
All parties agree that the Mother is to have sole parental responsibility for X and Y and that they live with her.
The Mother seeks an order that X and Y not spend time or communicate with the Father, although she agrees to an order being made that the Father be able to send X and Y gifts and cards for their birthdays and at Christmas. She argues that the Father poses an unacceptable risk to X and Y because of his diagnosed mental health issues which the Father fails to acknowledge and undertake the necessary treatment for, his long history of illicit substance abuse, his overt dislike and distain for the Mother and his lack of insight into how his behaviours impact the Mother, X and Y.
The Mother is also seeking there to be no orders made for X and Y to spend face to face time with the Paternal Grandparents. Whilst acknowledging X and Y have a good relationship with the Paternal Grandparents, she is of the belief that they would be unable to prevent the Father attending their time with X and Y as they are unable to stand up to him and do not accept he is a risk to X and Y. The Mother does support orders being made for X and Y to have weekly FaceTime communication with the Paternal Grandparents as well as for birthdays and Christmas. She also supports orders being made for the Paternal Grandparents to be permitted to send X and Y gifts and cards for their birthdays and Christmas.
The Father is seeking very detailed orders. In summary, the orders he seeks are:-
(a)the Father undertake Dialectical Behaviour Therapy (‘DBT’) for 12 months;
(b)the Father produce a report to the Mother from his treating DBT psychologist that the Father has satisfactorily undertaken DBT for six months (‘the DBT report’) and a clean hair follicle test that shows no illicit substance use for six months;
(c)upon providing the DBT report and clean hair follicle test, X and Y spend supervised time with the Father for two hours each fortnight at D Contact Centre and for three hours each month supervised by the Paternal Aunt Ms E; and
(d)upon completing 12 professional supervised visits, the Father obtain an observational report and if such report is positive and he has a further report from his treater that he is continuing to engage in DBT, the parties attend mediation to review X and Y’s arrangements.
The Paternal Grandparents are seeking orders for X and Y to spend time with them on the first Saturday of each month from 10:00am to 4:00pm, that they be able to attend sporting and extracurricular activities that extended family would normally attend and that X and Y speak to them by Skype or like technology weekly as agreed or failing agreement from 5:00pm to 5:15pm each Sunday as well as on X, Y and the Paternal Grandparent’s birthdays and Christmas Day.
The Father supports his parent’s application that orders be made for X and Y to spend time with them independently of any orders made for his time with them. This is because X and Y have a close relationship with the Paternal Grandparents as they were involved in their care on a daily basis until the parties separated.
The Independent Children’s Lawyer supports the orders proposed by the Mother that X and Y not spend time or communicate with the Father.
The Independent Children’s Lawyer supports X and Y spending face to face time with the Paternal Grandparents but was unable to articulate an order which would allow that to happen in a way that would give the Mother confidence that the Father would not be able to attend such time.
BACKGROUND
The Mother was born in 1978 and is aged 44 years. She is an administrative assistant working four days a week. She has been with her employer for over 20 years. She has not re-partnered.
The Father was born in 1969 and is aged 52 years. Whilst he deposes to being self-employed as a hospitality worker and tradesperson, the Father has also been in receipt of a disability pension for many years. He is not currently in a relationship. He lives in a house at the rear of his parent’s property.
The Paternal Grandfather is aged 84 years and the Paternal Grandmother is aged 80 years. They are both retired.
The Father has a long history of mental health issues, seeking professional assistance for anxiety and depression from 2002.
In 2006 the Father was seriously assaulted at his workplace. This impacted the Father’s mental health and he was diagnosed with depression and chronic Post-Traumatic Stress Disorder (‘PTSD’).
When giving his vive voce evidence, the Father told the Court that between 2006 and 2010 his employment caused him considerable stress and further exacerbated his anxiety and PTSD.
The parties met via social media in 2009 and commenced a casual sexual relationship.
In 2010 the Mother discovered she was pregnant. Upon advising the Father of this, the parties’ casual relationship ended as the Father did not believe the child was his as, on his evidence, the parties were not in an exclusive relationship when the child was conceived.
The Mother texted the Father when X was born. Because the Father doubted he was X’s father he requested there be a paternity test. The parties undertook a paternity test using a kit form. Each party completed a DNA swab which were returned to the laboratory by the Mother. The paternity test confirmed the Father to be X’s father.
When X’s paternity was confirmed, the parties recommenced their relationship. In 2012 they started living together in the property at the rear of the Paternal Grandparent’s home.
In late 2012 the parties moved into rental accommodation. In mid-2014 the parties purchased the property at F Street, Suburb G (‘the former matrimonial home’). The property was purchased in the Mother’s sole name. It is the Mother’s evidence this was because the Father had no credit rating.
The Mother took maternity leave when X and Y were born after which she returned to her employment. It is the Mother’s evidence she had to return to work because her regular income was needed to support the family.
The parties dispute the care of X and Y whilst the Mother was at work. It is the Mother’s evidence that when she was at work, X was in day care until she started kindergarten/school and the Father and Paternal Grandmother only provided care outside of day care arrangements or kindergarten/school hours. It is the Mother’s further evidence that Y was also in day care when she was at work.
It is the Father’s evidence that X was only in day care one day a week until she started kindergarten/school and she was otherwise cared for by himself and his mother. It is the Father’s evidence that Y did not attend day care full time and he too was cared for by he and Paternal Grandmother.
The parties married in 2015.
It is the Mother’s evidence that the parties’ relationship was very difficult with the Father being volatile and angry most of the time. It is her evidence that the Father’s mental health problems and ongoing use of illicit substances affected his mood and behaviour and he was abusive and demeaning of her.
It is the Mother’s further evidence that the Father introduced illicit drugs into their relationship to support what she describes as his “sexual fantasies”. She deposes in paragraphs 32 and 33 of her trial affidavit filed 29 March 2022:-
32. Part of the abuse the father perpetrated on me was that he had certain sexual fantasies that he required me to participate in. To force me to play a part in his sexual fantasies, he would threaten me and he would force me under his direction to use illicit substances. I would beg him and say that I didn’t want those things in my life.
33. The father was a frequent and regular [illicit drug] user. He would [force the drugs] into my mouth and it had an instantaneous effect on me. It caused me to be seriously drug affected and to be unable to resist anything that the father wanted me to do. At the same time, I was terrified of the father and what he would do if I resisted. It simply removed my capacity to resist him.
The Mother also alleges that during the parties’ relationship the Father organised for her to participate in “threesomes” from which she alleges the Father derived financial gain and sexual gratification.
The Father vehemently denies the Mother’s allegations that he was abusive during the relationship. It is his evidence it was the Mother who was demeaning and abusive of him.
Whilst admitting he used recreational drugs prior to the parties’ relationship, it is the Father’s evidence that it was the Mother who introduced illicit drugs to the relationship, showed him how to use them and sourced them every week. Annexed to the Father’s trial affidavit filed 13 April 2022 are emails exchanged between the parties relating to the Mother purchasing drugs.
The Father also denies ever having required the Mother to participate in “threesomes” or of him ever having done so with the Mother. He describes the Mother as being “promiscuous” both prior to and during their relationship, accusing her of pursuing inappropriate sexual relations with multiple other men during their relationship.
The Mother says the parties separated in late 2019 when the Father went to City H supposedly to spend time with his then girlfriend. The Father denies this, noting the family went to City H together for a special occasion.
In early 2020 the Paternal Grandfather contacted the Mother to say the Father was self-harming. The Mother took the Father to J Hospital where he was assessed. The subpoenaed records from J Hospital prepared by Ms K, which were tendered into evidence, state:-
“[Mr Watton] reports recent intense relationship with a woman he met a few months ago at a party and ‘put her on a pedestal’. He reports she ended things abruptly accusing him of being ‘too much and too intense’. [Mr Watton] feels rejected and reports this is a pattern he has noticed throughout his life, describing low self esteem, poor self worth and feeling the need to be validated by others. He feels he has never been able to hold down a ‘proper job’ and have a normal relationship due to his past issues and now feels he needs to address the issues from his past in order to work on himself and move forward.
Today he disclosed past childhood sexual abuse perpetrated by an older [relative] when he was around 10 years old and only told his parents recently. Feels he has struggled with guilt, shame and inadequacy feelings all of his life down to this past trauma.
Past frequent use of ‘party drugs’ over the years as works in [hospitality]. Denies recent use for many many years however used [an illicit drug] twice last week - Thursday - denies will use again and stated ‘it was horrible’. States he used as was desperate to feel better but didn’t help.
Impression – [multiple mental health conditions].”
Following the initial assessment by Ms K, the Father was seen by Dr L, a psychiatrist. Tendered into evidence was a copy of correspondence dated 3 February 2020 from Dr L addressed to Dr M, the Father’s long term general practitioner, which states in part:-
“The historical accounts given by [Mr Watton] includes long term struggles with emotional liability, interpersonal sensitivities, fear of abandonment and making desperate attempts not to be alone, chronic emptiness, anger outbursts, and impulsivity that affects his social and occupational functioning. He did not provide a history consistent with past hypomanic or manic episodes. Hence, he was given the diagnosis of [a mental health condition]). Psychoeducation was provided around [his mental health condition] including the primary treatment with DBT (and other relevant therapies). The limited role of medication was discussed.”
The Mother’s evidence is that the Father brought an unknown male to the former matrimonial home in early 2020 so that all three could have sex. It is the Mother’s evidence she was raped by this man and the Father after being forced to use illicit drugs by the Father.
The Father denies he brought anyone to the former matrimonial home in early 2020. It is the Father’s evidence that the Mother invited the man to the house for sex and there was consensual sex between this man and the Mother in a car out the front of the house whilst he, X and Y were inside.
In early 2020 there was an incident at the former matrimonial home. It is the Mother’s evidence that the Father came to the home wanting to reconcile. When she refused the Mother says the Father became abusive and was following her around the house. When she started recording him on her phone he grabbed it, deleted the recording and broke the phone. He then assaulted her. The Mother attended Suburb O Police Station the next day to report the incident. The police applied for an Intervention Order to protect the Mother, X and Y on that date.
The Father’s evidence is that he set up a “fake phone number” and pretended to be a stranger who then messaged the Mother wanting sex to which she responded positively. He went to the house in early 2020 to show her he had “caught her out” and she had grabbed the phone from him so she could delete the messages. He denies that he tried to harm her in any way.
In mid-2020 the Mother, X and Y vacated the former matrimonial home and went to live in an undisclosed location. It is the Mother’s evidence she did so to protect herself, X and Y and on the advice of the police and the then Department of Health and Human Services (‘DHHS’).
In mid-2020 the Father made an application for an Intervention Order against the Mother in which he alleges she had repeatedly threatened he would never see their children, she had sex with a man in a car outside the home where he, X and Y were, she breastfed their son with illicit drugs in her system, threatened to have him killed, assaulted him and ridiculed and abused him. He stated “I am concerned for my own and my children’s safety, especially regarding the deponent’s [illicit drug] use”.
When the parties separated in late 2019/early 2020, the Mother put the former matrimonial home on the market for sale. She sold the property in mid-2020. Subsequent to its sale the Mother discovered that the Father and his parents had placed caveats on the property. Whilst the Father’s parents agreed to remove the caveats lodged by them, the Father refused to do so.
In mid-2020 the Mother filed an Initiating Application seeking financial orders, including an urgent order for the Father to remove the caveat lodged by him over the former matrimonial home as settlement of the sale was due a month later.
On 22 June 2020 the Father filed a Response seeking both parenting and property orders.
On 23 June 2020 consent orders were made for the Father to remove the caveat on the former matrimonial home and for the net proceeds of the sale to be held in trust. Parenting matters were adjourned to 15 July 2020 with orders for the Mother to file an Amended Initiating Application and an Affidavit addressing parenting issues. An order was also made pursuant to s69ZW requesting the DHHS to provide information to the Court.
It is noted the parties settled property matters at a Conciliation Conference on 12 November 2020.
The DHHS provided a response to the s69ZW order dated 29 June 2020 which was placed into evidence and made available to the parties by way of orders made 14 July 2020. In that response the DHHS state:-
“A report was received due to information that the children had been exposed to family violence perpetrated by their Father towards their Mother. An incident of family violence [in early] 2020 was reported involving the Father attending the Mother’s home and giving the Mother an ultimatum “to take him back”, which resulted in the Father physically and verbally assaulting the Mother, causing property damage and pushing [X] which hurt her, no resulting injuries. The report further alleged [illicit drug] misuse by the Father, threats to kill both himself and the Mother and the alleged organised sexual assault of the Mother by a third party.
…
[In mid] 2020, Child Protection interviewed the Mother and the children, and the Mother disclosed ongoing verbal and mental abuse by the Father. [X] disclosed to Child Protection that her Father had pushed her and hurt her and that he was often angry and fighting with people. [X] stated that she did not wish to see her Father until this changed. Child Protection did not identify any concerns for the Mother’s presentation or relationship with the children.
[In mid] 2020, the Father was assessed as responsible for emotional harm and the concerns were substantiated.
During Child Protection involvement, the Father obtained an Intervention Order against the Mother and made allegations about her mental health and substance misuse. Child Protection investigated these concerns and found no evidence to corroborate these allegations.
Child Protection applied for the Father’s Health Records which stated that the Father had been referred for a psychiatric review due to [self-harm] ideations in [early] 2020. During this assessment, the Father disclosed current [illicit drug] use and ongoing fleeting thoughts of [self-harm] throughout his life. The Father was diagnosed with [a mental health condition] and referred for Dialectical Behavioural Therapy which he did not engage in.
Child Protection interviewed the Father who appeared to be engaging in gas-lighting behaviours; creating a narrative of mental health concerns and substance misuse by the Mother which was likely to have an emotional impact on the children by constant use of derogatory language regarding the Mother who was their primary carer. The Father denied all allegations and showed no insight into the impacts of his actions on his children.
Both the Mother and Father completed Urine Drug Screens as directed by the department throughout involvement with all screens completed, clear of illicit substances.
…
Child Protection assessed the Mother to be a protective parent and that if a full exclusion order remained in place, there would be sufficient safety for [X] and [Y]. Child Protection provided a letter to the Court recommending the full order remain in place.
It was assessed that the Father’s contact with the children needed to be supervised by an approved supervisor. The Father requested the paternal grandparents and two paternal aunts be assessed to supervise. Child Protection assessed the paternal grandparents and paternal aunt [Ms N] were not suitable to supervise contact. The paternal aunt, [Ms E] was assessed as a suitable contact supervisor…
[In mid] 2020 the case plan articulated that the children were to remain in the care of their Mother and have supervised contact with the Father; that the children were to engage in local schooling and day care and that as appropriate the Mother and children were to remain engaged in counselling as recommended during Child Protection involvement.”
The orders of 15 July 2020 required both parties to undertake hair follicle tests prior to late 2020. The Mother did so in mid-2020 and it was negative for illicit substances. The Father did not do so, explaining he was unable to do so because of the length of his hair.
The parties attended a s11F Child Inclusive Conference with Family Consultant Ms P on 8 October 2020 by Teams. Given their young ages and because the conference was on Teams, X and Y were not interviewed.
In the Memorandum to the Court dated 9 October 2020 Family Consultant Ms P sets out in detail the parties’ competing allegations of family violence and substance abuse. At paragraph 44, Family Consultant Ms P states:-
44. The safety and wellbeing of the maternal family unit as whole is important. This limited assessment information is more supportive of the mother’s significant allegations of domestic violence, compared to the denials of the father and his allegations of abuse. [Mr Watton], although saddened by the separation and lack of time with his children, did not present as having been a victim of narcissistic abuse. [Ms Watton]’s attack of him seems more consistent with retaliatory instigated violence than a pattern of chronic violence and control. [Mr Watton] made continual reference to his superior social standing, likable personality and competence; these are not typical features of a victim of domestic violence.
Under the heading ‘Future Directions’ Family Consultant Ms P states:-
47. It is suggested that subpoenaed information is obtained to help inform about the possible risk issues. These sources might include:
•The police record of the father and of the mother;
•Information about assessment of the father that occurred at [J Hospital].
48. An independent psychiatric assessment of each parent might be of assistance in helping to clarify the wellness of each parent and whether any condition may significantly impact on their parenting.
49. Further drug screening of each parent may help to clarify whether either or both parents have a current substance use problem.
50. Depending on the nature of the above information, it may then be appropriate that the children are supported to spend supervised time with their father.
51. It is suggested that [X] has individual psychological counselling support before and when any time between her and her father recommences.
On 12 October 2020 orders were made for X and Y to live with the Mother, for the Father to undertake a hair follicle test for a period of six months (the Father having been advised body hair can be used for a hair follicle test), for both parties to attend Dr Q for psychiatric assessments and for the Mother to facilitate counselling for X.
The Mother attended upon Dr Q in late 2020 and the Father in late 2020 for their psychiatric assessments. Prior to the assessments taking place the parties’ solicitors sent Dr Q the affidavits filed by the parties in the proceedings as ordered by the Court. Unbeknownst to his solicitor, the Mother or the ICL, the Father sent Dr Q a 15-page unsigned document dated late 2020, a brief one page signed affidavit from a Mr R and various photos of the Mother, X and Y including photos of the Mother in which she was naked.
On 17 December 2020 orders were made that the orders of 12 October 2020 remain in full force and effect and gave the Father leave to file an Application in a Case in the event he was able to provide proof that he had been drug free for a period of no less than three months.
The Father filed an Application in a Case seeking time with X and Y on 14 April 2021. He undertook a hair follicle test in early 2021. The Father annexed the result of the hair follicle test which showed there was no illicit substances to his affidavit filed 14 April 2021.
The Mother was suspicious of the negative result shown on the results of the Father’s hair follicle test annexed to his affidavit. The ICL subpoenaed the records of the testing body, Australian Workplace Drug Testing Service. The subpoenaed records showed the Father’s hair follicle test taken by him in early 2021 to be positive for illicit substances.
When the matter came before the Court on 19 May 2021, the Father through his legal representatives admitted he had falsified the results of the test annexed to his affidavit. His application for time with X and Y was dismissed.
In July 2021 the Paternal Grandparents filed an Initiating Application seeking orders for X and Y to spend time with them independently of their son. On 28 July 2021 that application was consolidated with the parties’ applications and the Paternal Grandparents were joined to the proceedings.
On 26 July 2021 the Father filed an Application in a Case seeking orders for a paternity test for X. In his supporting affidavit he questioned the results of the original paternity test on the basis it was the Mother who sent the samples to the testing body. On 28 July 2021 an order was made for a further paternity test for X. That test confirmed the Father to be X’s father.
It is the Mother’s evidence that X was very upset when she was told why she was being tested. The Father was critical of the Mother for telling X why she was being tested, suggesting she should have told X it was a COVID-19 test.
Orders were also made on 28 July 2021 for the Father to undertake a hair follicle test in early 2022. The Father was required to provide a hair sample that was more than 3cm long so that the tester could verify the test relates to a period of more than six months.
The parties’ competing Intervention Order applications came before the Court in early 2022. The Mother was given an Intervention Order for her protection for five years. The Father’s application was dismissed. It is not known if the Father attended Court on that day.
The Father only undertook a hair follicle test in early 2022. The result was negative for illicit substances but the results only covered a period of two months.
EVIDENCE
The Father’s Police Records
Tendered into evidence was the Father’s Victoria Police LEAP records for 2003, 2005, 2006 and for the period 2002 to mid-2011. Those records in summary disclosed:-
2003 Offence – bond/undertaking.
mid-2011 Offence – conviction/fine.
2003Sub-incident summary report – perpetrator (the Father). Verbal argument. Issues regarding possessiveness, OP states AFM has psych issues (not evident), AFM states OP is aggressive, jealous and possessive.
2005Sub-incident summary report.
“When the defendant has checked the AFM mobile phone messages. The Defendant has become irrational and verbally abusive to the AFM in relation to a text message found on the telephone. The defendant has called the AFM a fucking slut and accused her of having an affair. The Defendant has then struck the AFM [multiple times]. There are no visible injuries to the AFM.”
2006Sub-incident summary report.
“Upon arrival police found [Ms Watton] outside front door of premises trying to get in and could see [Mr Watton] inside the door holding it closed. Keys were in the lock… Police found a [weapon] on the front driver’s seat of vehicle underneath a [piece of clothing]. Police confiscated the [weapon]. Police spoke to each party separately and were told completely conflicting stories with regard to who initially held the [weapon] at who, ownership of property, etc. [Ms Watton] states [Mr Watton] came at her with [weapon] and has punched her. States he then threw the [weapon] and she picked it up. [Mr Watton] states [Ms Watton] kicked her from a seating position in the vehicle and picked up the [weapon] which is why he locked her out of the house… Found parties had an interim intervention order in [mid] 2005, never proceeded with. Police have attended on numerous occasions for verbal disputes.”
The 15-Page Document Given to Dr Q by the Father
Tendered into evidence was the document referred to in paragraph 51 herein sent by the Father to Dr Q. It is a very concerning document which is denigrating and demeaning of the Mother. The Father also sent this document to DHHS. Some examples of the statements made by the Father are set out below:-
“[Late] 2020
My name is [Mr Watton] , I’m 51 years old, DOB […] 1969.
I am writing this as I feel my children [X] DOB […] 2011 and [Y] DOB […] 2016, are in grave danger of sexual abuse and emotional abuse by the mother [Ms Watton] DOB […] 1978...
[Ms Watton] is breastfeeding my son, on 2 occasions, I walked into the bedroom where I found my 3 yo son naked with his mother, I uncovered the sheets, and found the mother naked with a vibrator sex toy, inside her vagina, and masturbating watching [disturbing] porn with my son on her boobs onlooking…
She is a deeply traumatised individual under that skin, with a sinister side, her childhood trauma and sexual abuse since a very young age has raised her to be a hater of men, she has stated many times, “she hates men” she has no empathy or morals. In the years I knew her, not once did I see her cry or show emotion or laughter. She never held my hand or gave me love or said I love you…
She spent many years in foster care, and in orphanages with her siblings. At a young age she was constantly sexually molested by [family members]. [One family member] ended up in jail on charges of [serious sex offences] in which [Ms Watton] was forced to watch. [Ms Watton] stated she was also made to [commit a disturbing sex act] when she was young. [Another of Ms Watton’s relatives] had molested all the children when they were young 4 – 6 years of age. [He] is homeless and is now in a mental institution […], he [has a mental illness] and needs constant treatment…
[Ms Watton] is always drunk and drugged, [an illicit drug] was her addition at the time, as she stated on many occasions to me. I did know her ex-partners and girlfriends that did confirm this with me, as they did [drugs] with her in hotels, clubs and house parties, swingers, and fetish events.
[Ms Watton] stated that when on drugs she would do anything sexually, all her boundaries were open, and she was sexually aroused that she lost all her inhibitions. During these times when she was high her truths came out about her past promiscuous encounters…
[Ms Watton] was well known for a very open and promiscuous reputation…
Now given her history of events I feel [Ms Watton] could have easily tampered with the swabs. I have high anxiety now that the child I raised all these years and have bonded with may possibly not be mine? But I love [X] in either way, even if she is not my child, I raised her, she is mine…
Drugs were no longer part of the lifestyle, neither was sex…
She was a megalomaniac, or psychopath I am not sure, but she needs assessment. I have attached many images files, text messages, videos, and supporting evidence.”
The Mother
The Mother relies on her trial affidavit sworn 29 March 2022. The Mother also gave vive voce evidence at the final hearing.
It is the Mother’s evidence that she believes it is not in the best interests of X and Y to spend any time or communicate with the Father as he poses an unacceptable risk to them because of his untreated mental health issues, his history of illicit drug abuse, the question as to whether he is still using illicit substances because of his failure to take his prescribed mental health medication as directed by his treating practitioners and because he does not accept the seriousness of his issues and its impact on herself, X and Y.
Whilst accepting that X and Y have a positive and loving relationship with their Paternal Grandparents and that the Paternal Grandparents have been an important part of their lives, the Mother does not believe that it is in their best interests to spend face to face time with them as they do not accept that the Father’s behaviours pose a risk to X and Y, they show no understanding or acceptance of his diagnosed mental health problems and it is her belief that they would not protect X and Y from the Father if he were to behave inappropriately. Further, the Mother believes the Paternal Grandparents would either allow the Father to attend, or be powerless to stop him from attending their time with X and Y even if there were Court orders that the Father was not to be in attendance when they were seeing them.
As has been set out in this judgment, it is the Mother’s evidence that the Father was volatile and angry for most of their relationship. The Father subjected the Mother to his sexual fantasies which he required her to participate in. It is the Mother’s evidence this was fuelled by the use of illicit drugs which the Father introduced to the Mother and forced her to consume. It is her further evidence that the Father required her to participate in “threesomes” by bringing home men that were unknown to her and forcing the three of them to participate in sexual activities against her will.
The Mother refutes the Father’s evidence that he was a hands on Father during the parties’ relationship and that he, together with the Paternal Grandmother, were primarily responsible for X and Y’s care during the week while the Mother was at work. It is the Mother’s evidence that the Father was engaged in his own activities during the working week and that for the majority of the time X and Y were in child care. The Mother agrees that the Father would collect X and Y from child care and return to his parent’s place where they stayed until she got home from work. This was only for a very short period of time. On the weekends the Father was actively engaged in his hospitality business and was rarely available to care for or spend time with X and Y or to participate in family activities.
The Mother gave evidence in relation to an incident that she says occurred in 2018 or 2019 when she was contacted by the Father’s sister, Ms E, who rang to tell her that Ms E had an argument with the Father, that he had either hit her or threatened to hit her, that she had hidden in the bathroom, that he was very angry and agitated and she just wanted to warn the Mother because the Father was on his way to pick the Mother up as she was coming home from work.
It is the Mother’s evidence that she remains traumatised by her relationship with the Father and is genuinely fearful of him and what he could do to her, X and Y. The Mother is receiving ongoing counselling for the trauma that she suffered at the hands of the Father.
It is the Mother’s evidence that the Father takes no responsibility for his behaviours and how it has impacted on her, X and Y. It is her evidence that not only did the Father subject her to inappropriate anger and aggression, X too was subjected to his extreme moods and there were occasions where he was physically abusive of her, twisting her arm and slapping her face.
The Mother remains concerned that the Father continues to use illicit substances, particularly given his falsification of the hair follicle test and his failure to undertake the most recent hair follicle test in the manner directed by the Court.
In relation to the Paternal Grandparents, the Mother agrees that X and Y have a good relationship with them and that during the relationship they were involved in their care, although not to the extent claimed by the Father and the Paternal Grandparents.
It is the Mother’s evidence that the Paternal Grandparents are now quite elderly, both being in their 80s and that they have some physical limitations which makes it difficult for them to care for active, energetic children, particularly a toddler like Y.
Whilst the Mother would like X and Y to be able to spend face to face time with the Paternal Grandparents, it is the Mother’s evidence that she does not believe they have any understanding of or accept the risk that their son poses to X and Y because of his mental health and drug abuse issues. It is the Mother’s evidence they do not accept that there are any difficulties with the Father’s behaviour and that during the relationship they were always offering excuses for any incidents that might have occurred. Further, it is the Mother’s belief that they are scared of the Father, particularly when he is angry and agitated.
For these reasons it is the Mother’s belief that if orders were made for X and Y to spend time with the Paternal Grandparents independently of and in the absence of the Father they would struggle to comply with that order as they do not believe such an order would be necessary, and more concernedly, they would not be able to resist or stand up to the Father in the event he attended whilst they were spending time with their grandchildren.
The Father
The Father relies on his trial affidavit filed 13 April 2022. He also gave vive voce evidence at the final hearing.
The Father was given leave in the running of the matter to file an affidavit of his sister Ms E, which was affirmed on 27 April 2022. Ms E gave brief vive voce evidence at the final hearing.
It is the Father’s evidence that he does not believe that the Mother is fearful of him, but rather she is saying this deliberately trying to cut him out of X and Y lives.
He adamantly denies the Mother’s allegations that he was emotionally, physically or sexually abusive of her during the relationship. It is his evidence that the inappropriate behaviour described by the Mother as being committed by him was actually how she behaved and what she subjected him to.
The Father denies absolutely that he introduced the Mother to illicit drugs at the start of their relationship. It is his evidence that it was the Mother who introduced him to illicit drugs, that she was the one who would source the drug and that it was she who liked them to use the drug to enhance their sexual relationship. The Father concedes that he became addicted to illicit drugs during the relationship, but it is his evidence that this was as a result of the Mother forcing him to take the drug.
He adamantly denies that he required the Mother to partake in “threesomes” or any other form of deviant sexual behaviour and that is was she who was the instigator of all such behaviour.
It is the Father’s evidence that the Mother came into the relationship with a known reputation as a user of illicit substances and of being “promiscuous” and she was habitually unfaithful to him throughout the entirety of their relationship.
It is the Father’s evidence that during the parties’ relationship he was the primary carer for X and Y, and in particular X, as he, with the assistance of his mother, looked after X whilst the Mother returned to full time work after maternity leave. He refutes the Mother’s evidence that X was primarily in child care until the time she started kindergarten and says it was he who was responsible for X’s parenting.
The Father was not a good witness, often contradicting himself and telling the Court he could not remember when independent documentary evidence was put to him that contradicted his evidence.
When discussing his previous relationships and whether there had been violence in those relationships, the Father was adamant that this has not occurred. When his subpoenaed police records were put to him which disclosed violence in these relationships, it is his evidence that he could not remember that such incidents had occurred and when pressed, his evidence was that it was he who had been the victim of any violence or inappropriate behaviours in those relationships.
The Father’s evidence in relation to his history of mental health difficulties was equally as inconsistent. He often giving contradictory and conflicting answers to questions that were put to him.
Tendered into evidence were copies of notes from the Father’s file with his former long-term treating psychologist, Dr S. These notes had been sent by the Father to the doctor. One of the documents is headed “My symptoms… [Mr Watton]/[late] 2012”. It reads in part as follows:-
“Anxiety is very high…
I think of things or imagine, then I think it is real. I am left feeling it really happened…
I get annoyed or agitated very easily.
At times I am angry & lose temper…
I am sad most of the time.
I have one good day out of 6. or 80% depressed…
I have no sex drive.
I feel lazy and unmotivated…
At times I feel worthless lately, I am not good enough and all I do is failing…
I do not feel like a good father – I want to give my child but I cant and this is killing me.
I am very depressed at this time.”
The Father initially denied being the author of this document. He said that he had made notes on how he felt in 2006 after he was the victim of the severe attack at his workplace. He then said that the Mother had access to his computer and she must have doctored the notes. The Father then said he had thousands of pages where had written down how he felt. He finally said he might have sent them to Dr S but he could not remember when he did so.
The Father was specifically asked what he understood to be his diagnosed mental health conditions. He replied “depression and PTSD”. The Father made no mention of being diagnosed by more than one treating practitioner with a mental health condition or of this diagnosis by Dr Q.
The Father was asked how his mental health difficulties had impacted on X and Y. He responded that they had not been impacted by this at all as his life changed when he met X. He said “it was like a light came on and I was full of light and happiness”. He described X and Y as being “his antidepressants”. He said simply “my mental health did not affect my children”.
When asked how his mental health issues impacted the Mother he responded:-
“She is a very strong person. Her father has [a mental health condition] and she grew up around it and she is very strong so it didn’t impact her.”
It is the Father’s evidence that he has always been compliant with the medication prescribed for him by his treating doctors save for one type of medication which he stopped taking as they have an adverse effect upon him and cause him to behave erratically.
In relation to the subpoenaed records from J Hospital tendered into evidence as a result of him being taken to that hospital by the Mother in early 2020 due to his family’s concerns about how he was behaving, it is the Father’s evidence that the information, particularly from Ms K, is completely inaccurate and was provided to her by the Mother and not by him. It is the Father’s evidence that he only spoke very briefly to the psychiatrist whose letter to his general practitioner is set out previously in this judgment. He accused the Mother of setting him up as she knew what to say.
It is noted that it is the Mother’s evidence that she was not permitted to accompany the Father when he spoke to the various treaters at the hospital as she was required to wait outside because of the COVID-19 restrictions.
After some prevarication, the Father agreed he had sent the 15-page document to Dr Q, as well as the one page affidavit from Mr R and various photographs.
He explained he did so to ensure that Dr Q was given a clear picture of what really had been happening in his relationship with the Mother and that he needed to do so in face of the lies and misinformation that the Mother was spreading in relation to him. The Father also confirmed that he sent this document to DHHS so that they too knew what the Mother was like and the risk that X and Y were being exposed to in the care of the Mother.
It is the Father’s evidence that he has been drug free for 18 months despite there being a positive hair follicle test in that period.
When asked to explain why he falsified the result of his hair follicle test in mid-2021, the Father explained that he was desperate to see X and Y and that he realised a positive hair follicle test would mean he would not be able to see them.
It is the Father’s evidence that he has a close and loving relationship with X and Y, that he is a good father and that up until the parties’ separation it was he who was their primary carer. It is his evidence that he believes he is being punished for having mental health difficulties.
Ms E
Ms E is the Father’s sister. She was given leave to file an affidavit in the running of the proceedings. She also gave brief vive voce evidence at the final hearing.
The main thrust of Ms E’s evidence related to the incident between herself and the Father in 2019 when she rang the Mother to warn her that an argument had taken place between herself and the Father.
Ms E confirmed that she and the Father had got into an argument when the Father became very angry because her adult daughter and other members of the family had not assisted him at an event that he was running. It is Ms E’s evidence that she came to the defence of her daughter and that “it got a bit nasty and words were exchanged”. She agreed that the Father was shouting. It is Ms E’s evidence that she decided she needed to defuse the situation so she went into the bathroom and locked the bathroom door until the Father left his parent’s house with X and Y.
It is Ms E’s evidence that the Father did not hit her or threaten to hit her.
When asked if she was frightened of the Father during this incident she denied that she was but was unable to offer a cogent explanation as to why she found it necessary to lock herself in her parent’s bathroom for her protection.
Ms E confirmed that she telephoned the Mother to advise her of what had just occurred between herself and her brother and to put the Mother on notice that he would be angry and in a very bad mood. She was unable to recall whether she had told the Mother that there had been any physical violence or threats of physical violence towards her by the Father.
It is Ms E’s evidence that she remembers this incident because it was the only time that she has ever had an argument of this type with her brother.
Ms E was asked whether she is aware that her brother struggles at times with his mental health. She responded that she is but does not know exactly what his issues are, saying that it might be “a bit of depression” and because of the injury he received when he was assaulted in 2006.
When asked to describe what happens when she observes the Father to be struggling with his mental health, she responded that sometimes he takes himself away from the group if he is having a bad day or he will make a smart remark and you will know “it’s not a good day”.
Ms E agreed that during the parties’ relationship the Mother would confide in her and discuss the difficulties that she was having with the Father. Tendered into evidence were some email and text message exchanges between her and the Mother. One of those exchanges reads:-
“The Mother: I seen it at the table when he snapped […],
Losing […] has triggered something. The grief.
[Ms E]:I know what he’s like, he is [mentally ill], I don’t trust his mood swings at all.”
Another exchange between Ms E and the Mother reads:
“The Mother: He nearly beat up other mothers at [X]’s school today. Just angry.
[Ms E]:OMG he definitely needs to see a psychiatrist & start taking his meds.
…
That’s what he did to me that time, scared the shit out of me.”
The Paternal Grandparents
The Paternal Grandmother swore an affidavit on 13 April 2022. The Paternal Grandmother also gave vive voce evidence at the final hearing.
The Paternal Grandfather adopted the affidavit of the Paternal Grandmother and it was agreed by all parties that only the Paternal Grandmother needed to give vive voce evidence.
It is the Paternal Grandmother’s evidence that she would see the Father with X and Y everyday as he would bring them to her home. It is her evidence that when X was a baby she would look after her whilst the Mother was at work.
When asked if she had ever seen the Father affected by drugs, the Paternal Grandmother said she had not other than he takes lots of tablets prescribed by his doctors.
The Paternal Grandmother indicated that she did not know of a certain drug, that she had only recently heard of another drug. She was not aware that the Father had used those drugs and had never seen him drug affected.
When asked about the impact of the Father’s prescribed medication on him, the Paternal Grandmother said that in the last three years he was taking too many tablets because he was always sleepy. When asked about prior to that time, it is the Paternal Grandmother’s evidence that for the eight years with the Mother he was good and she had never seen him bad or sleepy. The Paternal Grandmother expressed the view that the Father currently has no problems with his mental health. In relation to the assault in 2006, the Paternal Grandmother did not believe that he suffered mental health problems as a result of this except some depression.
The Paternal Grandmother was not aware that the Father has regularly attended a psychiatrist since 2002.
In relation to the incident between the Father and her daughter Ms E, the Paternal Grandmother described the Father as being “a bit upset, that there was an argument but no violence and that her daughter had gone into the bathroom to stop the argument, she had told him to go home and that he did”.
The Paternal Grandmother was asked if she would be prepared to see X and Y under supervision. She responded she would like to see them “but much better to – my son get to see the kids too, then I would be more happy”.
It is the Paternal Grandmother’s evidence that if there were orders made for X and Y to spend time with her and her husband conditional upon the Father not being present, that she would comply with those orders as she is aware that if the Father was to attend then X and Y would tell the Mother that the Father had been there and they would then not be able to spend any further time with them.
Dr Q
Dr Q is a Consultant Psychiatrist who psychiatrically assessed the parties pursuant to the orders that were made on 12 October 2020. Dr Q’s psychiatric assessments of the parties are annexed to his affidavit filed 3 May 2021. Dr Q also gave vive voce evidence at the final hearing.
The Mother
The Mother attended upon Dr Q for assessment in late 2020. Having provided her personal history and that of the relationship with the Father in terms that accord with her evidence to this Court, Dr Q notes the Mother to describe herself as “the helper”, that being the role that has befallen her in both her longer term relationships, which she now recognises contain elements of co-dependency.
Dr Q notes that the Mother gave no history of verbal, physical or sexual abuse in her childhood, that she generally felt loved and cared for by her mother and that they had quite different personalities. Her father, from whom her mother separated when she was seven, has a diagnosed mental illness and is subject to a community treatment order. The Mother has had no contact with him for two years. She advises that she has a good relationship with her mother and two younger brothers, but no relationship with her older brother “with whom she has little to do”.
Dr Q under the heading “Summary” states as follows:-
“Whilst in his material [Mr Watton] provides copious and detailed claims and allegations against [Ms Watton], her presentation occurred in contrast to those allegations of sexual acting out, substance abuse and perverted sexual practices under the influence of [illicit drugs].
Whilst she did acknowledge a poor background, describing herself as a helper when young, as such has been predisposed to her tendencies to help others in those circumstances. Nonetheless there is no suggestion of trauma or abuse during her childhood in contrast to the allegations raised by [Mr Watton] in his unsworn lengthy documents which he composed himself, with some brief material being provided by his Legal Representative.
Throughout her account, [Ms Watton] spoke lovingly of her children and is currently attempting to reconstruct her life with them.”
Dr Q diagnosed the Mother as having PTSD.
The Father
The Father attended upon Dr Q for assessment on 17 December 2020.
As he did with the Mother, Dr Q set out the Father’s commentary in relation to his history and his description of the parties’ relationship which accords substantially with the evidence given by the Father.
Interestingly, in that history, the Father told Dr Q that his business became very busy and that by the end of 2015 X was in child care four days a week. The Father also told Dr Q that by 2017 X was in prep and Y was in child care four days a week.
Under the heading “Past Psychiatric History” Dr Q sets out the Father’s long-standing psychiatric history in the following terms:-
“[Mr Watton] confirmed a longstanding psychiatric history centred on an assault in 2006 when he was attacked by [several] men who were acting in an extortionate manner. He saw [Dr T], Psychiatrist and comments “that’s when my life changed’. When he became a witness he received death threats and received a Victims of Crime payout […]. He was no longer safe. A Victims Impact Report (2006) was undertaken by [a doctor] who diagnosed him with Posttraumatic Stress Disorder.
Prior to this he’d first seen [Dr T] in 2002, describing himself as having fallen into a hole in the context of a breakup of his relationship with a partner. His relationship with his father at the time was described as “not strong”. His mother was described as suffering from depression and there was a family history of depression on her side of the family. He denied that his mother suffered from depression or at least alleged that she’d never been diagnosed with that condition despite [Dr T]’s clear history he had obtained from [Mr Watton] to that effect. Again he attempted to minimise certain facts which appeared to show him or his family in a negative light.
The history obtained by [Dr T] noted that [Mr Watton] felt apart from his school peers, was critical of others, always wanted to be popular, but got into trouble and engaged in vandalism. At the time he left school he was described as easily confused and wouldn’t take orders, attempted various apprenticeships and his work history was poor. A twelve year marriage ended because of his difficulties with jealousy. Examination revealed him to be talkative with an obsessive ruminative style and was managed with high doses of [an antidepressant] with some improvement over time.
He was also managed with a variety of heavy powerful psychotic preparations […] and was diagnosed with a Major Depressive Disorder which was intractable and resistant to treatment.
When seen again [in] 2009 he’d been subject to extortion by criminals, had attended [Dr U], Psychiatrist whose treatment was ineffective and from then on, he has attended [Dr S] since 2009 and was managed with [antidepressant medication]. When seen [in early] 2020 by the CAT Team he reported his childhood as difficult, describing his parents as cold and not affectionate towards him, stated he was sexually abused by an older [relative] when he was aged around 10 at high school which was difficult due to intense feelings of shame, guilt and embarrassment, feeling that he was a loner. [Mr Watton] again adamantly denied that history and said those details were provided by his wife and not him, and again attempted to deny historical aspects which could place him in a negative light.
The history notes that [Mr Watton] had tried several apprenticeships which never lasted and always lost interest, was involved in numerous odd jobs which he did on and off for many years. He described his relationship with [Ms Watton] as loveless and stated that he didn’t know why he got married, spoke of much love for his children, was unemployed and on a Disability Support Pension currently, had recently met a new woman but she ended that relationship abruptly which left him feeling heartbroken. When assessed at [J Hospital in mid] 2020 mental status examination noted [Mr Watton] to be broken and depressed because he couldn’t see his children, preoccupied with his ex-wife preventing him from seeing them, claimed “[Ms Watton] beat the shit out of me”, and reported that he wanted to see the children and had lost hope.
He confirmed that following initial assessment by the CAT Team, he underwent a ‘tick the box’ assessment by “young Psychiatrist” which diagnosed him with [a mental condition] which he adamantly denied he had. He confirmed his mental health did deteriorate, having been prescribed [medication] which he said caused him to become erratic and delusional and was prescribed […] a sedating antipsychotic preparation, having been assessed by a Psychiatrist.
Subsequently his medication regime was changed to an antipsychotic preparation at a low dose and an SSRI antidepressant which he said a stabilising effect upon him. Despite that treatment however he attended [V Hospital], having been brought in by Police with [self-harm] ideation, social issues with his ex-wife and breakdown of the relationship due to seeing unfaithful messages on her phone, was involved in a Family Court Hearing the day before and did not get the outcome he was hoping for, made [self-harm] statements to a female friend who contacted Police, [Mr Watton] wanting to [harm] himself with a [weapon] in a hotel room, ‘nil actual harm and denies current [self-harm] intent’.
Whilst there were no frank delusions, some mild persecutory ideation surrounding his reality-based situation was noted with accompanying hopeless and helpless thoughts. No other psychotic phenomena were elicited. He was considered to be of low [self‑harm] risk or harm to others, and noted that this was one of three presentations through 2020 in the context of current legal issues and separation from his children.
The impression was that of an acute stress reaction. He was not presenting with endogenous depression and was agreeable with a plan for ongoing liaison as required.”
It is not disputed that the Paternal Grandparents and particularly the Paternal Grandmother were actively involved in X and Y’s lives and upbringing prior to the separation of the parties. They saw X and Y on an almost daily basis whilst the Mother was at work and that they have a close and loving relationship.
The Paternal Grandparents are seeking orders that they be able to spend time with X and Y independently of the Father on the first Saturday of each month from 10:00am until 4:00pm and that they speak to them on a weekly basis by way of Skype or such other technology as well as on their birthdays, the Paternal Grandparent’s birthdays and Christmas Day.
In response to concerns raised that the Paternal Grandparents would not be able to resist the demands of the Father to see X and Y when they were with them or stand up to him if he were to attend despite orders that he not do so, it was submitted on behalf of the Paternal Grandparents that they would not allow such an event to occur as they are fully aware that to do so would mean any time ordered for them to spend time with their grandchildren would immediately cease.
Whilst the Mother is happy for X and Y to have weekly FaceTime communication with their grandparents as well as on birthdays and Christmas Day, she is strongly opposed to any face to face time taking place because she does not believe the Paternal Grandparents would resist demands from the Father to see X and Y or be able to stand up to him in the event he was to force his way into any occasion that they were with them.
The Mother argues her belief in this regard has merit given the Paternal Grandmother’s evidence that she is unaware of the Father’s mental health issues or that he has had long-standing issues with the use of illicit substances. The Paternal Grandmother’s comment during her vive voce evidence that “much better to – my son get to see the kids too, then I would be more happy” also adds to the Mother’s concerns that the Paternal Grandmother would not prevent the Father seeing X and Y when with them if he asked to do so.
Whilst the Independent Children’s Lawyer supports X and Y spending face to face time with the Paternal Grandparents given their close relationship and the evidence of Ms W about the importance to the children’s identity of having interactions with their extended paternal family, particularly if they are not seeing their father, the Independent Children’s Lawyer struggled to put forward a practical proposal as to where such time could take place that would ensure the Father would not be able to “gate-crash such time” or take the opportunity to ascertain the whereabouts of the Mother, X and Y, something that the Mother is genuinely fearful of.
Given their close relationship and Ms W’s evidence of the importance to the children’s sense of identity of having some interaction with the extended paternal family, it would be ideal if X and Y were able to spend face to face time with the Paternal Grandparents. But like the Independent Children’s Lawyer, it is impossible to envisage an order that would prevent the Father from, possibly in desperation, inserting himself into X and Y’s time with the Paternal Grandparents in order to see the children. Given the findings of the Court in relation to the current risk the Father poses if he were to see X and Y, the risk of this happening means orders for face to face time between X, Y and the Paternal Grandparents are not in X and Y’s best interests.
For those reasons orders will be made that there be no face to face time between the Paternal Grandparents, X and Y. Rather orders will be made for weekly FaceTime communication between X, Y and the Paternal Grandparents, as well as on their and the Paternal Grandparents’ birthdays and at Easter and Christmas. Orders will also be made for the Paternal Grandparents to send gifts and cards to X and Y, such gifts and cards to be sent to the same post office address as that provided to the Father.
I certify that the preceding two hundred and sixty-nine (269) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 18 August 2022
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