WEBBER & WEBBER
[2015] FCCA 2911
•3 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEBBER & WEBBER | [2015] FCCA 2911 |
| Catchwords: FAMILY LAW – No time with child – impact of father’s attitude to mother, poor boundaries with child is a significant risk and disruption to child’s progress – father has a significant issue with alcohol abuse – father demonstrates little understanding of child’s special needs or any capacity to provide for those needs including a failure to financially support the child. |
| Legislation: Family Law Act 1975, s.60CC |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS WEBBER |
| Respondent: | MR WEBBER |
| File Number: | WOC 370 of 2010 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 19 – 20 March 2015, 1 May 2015, 31 August 2015 |
| Date of Last Submission: | 31 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Humphries |
| Solicitors for the Applicant: | Bailey Mullard Lawyers |
| Counsel for the Respondent: | Mr Lawrence |
| Solicitors for the Respondent: | Marriott Oliver Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
That the mother have sole parental responsibility for the child X born (omitted) 2003.
That the child live with the mother.
That any time the child spends with or communicates with the father be at the sole discretion of the mother.
The father be injuncted from approaching any place of education or place of extracurricular activity the child attends from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Webber & Webber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 370 of 2010
| MS WEBBER |
Applicant
And
| MR WEBBER |
Respondent
REASONS FOR JUDGMENT
The matter of Webber is a parenting application heard on 19 and 20 March 2015, 1 May 2015 and concluded by submissions on 31 August 2015.
The applicant mother was represented by Ms Humphries of counsel. Mr Lawrence of counsel represented the respondent father. Mr Ladopoulos represented the Independent Children’s Lawyer. The application concerned the parenting arrangements for the child, X, born (omitted) 2003.
The evidence I read was as follows.
For the mother:
a)Initiating application filed 21 January 2014;
b)Notice of child abuse filed 21 January 2014;
c)Affidavits filed 15 March 2015 and 16 March 2015; and
d)Minute of the orders sought.
For the father:
a)Response filed 12 March 2014;
b)Affidavit filed 18 March 2015;
c)Affidavit of Ms P his partner sworn 18 March 2015; and
d)Minute of order dated 18 March 2015.
The father sought equal shared parental responsibility with the mother for the child.
The mother sought order for sole parental responsibility and no face to face time and time only when she determined it be appropriate.
The exhibits for the court are as follows:
a)Court exhibit 1, Dr P’s report of 11 May 2012 and the family report then prepared; and
b)Court exhibit 2, The report of Ms M, family consultant, dated 4 March 2015.
The exhibits for the parties:
a)For the mother:
i)Exhibit 4, notes from the (omitted) Hospital where the father attended in August of 2014;
ii)Exhibit 5, further medical records in relation to the mother and the child; from the (omitted) Family Practice; and
iii)Exhibit 6, father’s criminal history.
b)For the father:
i)Father’s exhibit 2, results of (omitted) Pathology report in relation to his alcohol abuse dated 29 March 2015, 18 March 2015 and 24 April 2015;
ii)Exhibit 3, certificate of attendance at a post-separation parenting course dated 29 April 2015;
iii)Father’s exhibit 4, a letter from a psychologist, Ms T, dated 30 April 2015 to which I will later refer; and
iv)Father’s exhibit 5, a postcard received from the child.
c)The Independent Children’s Lawyer’s exhibits:
i)Exhibit 1, documents from (omitted) Clinic and a report from psychologist Dr H who is X’s treating psychologist;
ii)Exhibit 2, documents produced under subpoena in relation to the schooling of the child;
iii)Exhibit 3, the (omitted) Family Practice, a practice the mother and child attend;
iv)Exhibit 4, subpoena material to the Child and Family Health Team in relation to the child;
v)Exhibit 5, subpoena material from Mr S, the child’s treating general practitioner; and
vi)Exhibit 6, costs of the Independent Children’s Lawyer.
This matter has had an interim hearing before Judge Altobelli when he made interim orders on 29 August 2014.
The orders provided for the parents to have equal shared parental responsibility. X was to live with his mother and the orders for time with the father were suspended.
Dr P was appointed court expert.
The matter was listed for final hearing.
The matter had been before the court on 23 November 2011 when FM Foster, as he then was, made orders by consent as follows:
a)That X spend time with his dad from 8 am to 5 pm Saturday, then from 9 am till 5 pm each alternate Sunday progressing finally to Saturday to Sunday each alternate week and time in the holidays.
This time and its progression were subject to certain conditions being met. The conditions were that the child was to spend time with the father if there was another adult present, injuncting the father from coming within 100 metres of the mother’s property and, importantly at order 23, the father was restrained from consuming alcohol in amounts that would cause his blood alcohol level to be in excess of the legal limit for a low range driving offence during the time he spent with the child.
The mother brought the matter back before Judge Altobelli to discharge the existing orders and sought that the child not spend any time with nor communicate with his father due to his consumption of alcohol in breach of order 23 and the child’s concerning behaviour after spending time with his father. The mother’s application was successful.
Ultimately this continued to be the mother’s position at the final hearing. The mother has cogent and compelling reasons for seeking such draconian orders of no time in circumstances where she agrees her son loves his father and wants to spend time with him.
Initially the father sought an order that the child live with him. By the conclusion of the trial the father sought alternate weekend time, half school holidays what might be regarded as the usual parenting orders and equal shared parental responsibility.
The Independent Children’s Lawyer’s proposal was comprehensive. In summary the child to live with his mother and the mother have sole parental responsibility. That the child commence limited time with his father in at age 13 in (omitted) 2016. That the time slowly builds up and if the father successfully completed a 12 month rehabilitation programme he may apply to the court for more time with his son.
The short chronology
The father was born in (omitted) 1960.
The mother in (omitted) 1962.
The parties commenced their relationship in 1994.
They married on (omitted) 2003.
X was born on (omitted) 2003.
The parties separated in March 2008.
They were divorced on 18 September 2011.
Final orders were made by consent in 2011.
Throughout 2012 and 2013 the mother became increasingly concerned about the father consumption of alcohol when he spends time with the child and the child’s behaviour after spending time with his father.
The mother brings the matter back to Court in 2014.
I will refer to the specific concerns and incidents the mother raises.
The parties’ evidence
In December 2012 the mother complains that a changeover at McDonald’s at (omitted) the father walks past her, he ignores the mother and her request not to purchase a sugary drink for the child.
On 17 December 2012 the child has a presentation night at his school. The mother claims that the father knew he was to arrive 10 minutes early and X was looking forward to his father attending this event. The father had not arrived by 6.20pm and the child became anxious. The mother says the father arrives and she says he has consumed alcohol. She believes he is drunk and is unsteady on his feet.
The father removes the child during a break in the performance takes him out of the school hall over to his car. The mother becomes concerned. The mother asks Ms P, the father’s partner, to have the boy returned. A confrontation ensued with the father.
The child said to his mother that night, “I’m glad dad came but I didn’t like that he was drunk.”
Ms P admitted the father had consumed alcohol that day but denied he was drunk as did the father.
On 24 December 2012 the mother alleges at changeover she observes the father is unsteady on his feet and she believes he has consumed alcohol to excess. The mother says he drives his car away before she had taken X’s things out of the back.
The child complained his father wanted him to sleep with him and was touching him and he did not like it when he was drunk.
The mother asserted the child told her his father spoke to him about masturbation and how to do it in December 2012. Ms P says the child raised the issue of masturbation and sex. I will not make any finding on this issue for the following.
It is not necessary or relevant to the facts in issue of whether X should spend time with his father.
Secondly X has exhibited sexualised behaviour previously. He is a child with significant and specific difficulties which I will address later and little turns on this issue.
In 2013 at the child’s swimming carnival the mother says the father particularly distresses the child. The children were told by their teacher not to leave the swimming pool area.
The father was at the carnival and left to go to his car. He calls his son to come to him. The father is outside the swimming pool area.
The child obeys him. The mother retrieves him. The child is crying. He was called back by his teacher with his father calling him to come to him. This was a poor decision by the father to put his child in such a conflicted situation.
The child was confused and became extremely upset. X said, “Dad told me to come out twice today and I did.” X was so upset he had to leave the swimming carnival early.
The child complains to his mother in April 2013 his father comes in the shower when he is showering and flicks him with a towel, that the father unlocks the door and he does not listen to him and will not leave him alone.
The father agrees he showered with his son but denies his son was distressed.
In May 2013 the father was to attend the school. The child became concerned. He told his mother “Dad’s drunk. I don’t understand what he’s saying. Ms P can. I hope she’s there so the school principal will understand him.”
The nut incident on 2 June 2013. The mother has a life threatening allergy to cashew nuts. The child made Rocky Road at his father’s home. The mother says X said to his father and Ms P put in peanuts not cashews. The father says to him. I like cashews and they put extra cashews in.
When the child returns to his mother he says, Dad said there’s a surprise in there for you.” The mother ate the rocky road, realised cashew nuts were in the mixture, immediately felt the allergic reaction, became panicked and went to a local pharmacy was given medication, an EPI Pen and she and the child spent over an hour at the pharmacy waiting to see if she would react. X observed this entire trauma including his mother’s panic.
The mother is concerned that the father encouraged the child, or believed it was funny or appropriate, that the mother be given something the child made to which she was highly allergic.
The father’s evidence that he forgot about her life threatening allergy to cashews is not accepted by me. This is not something one would ever forget.
The father seeks to blame the mother for this incident on 2 June 2013. X was upset about the cashew nut incident. It was a frightening incident for the mother and the child. The child spoke to his father about this incident on 16 June 2013. He said to his mother, “Dad just laughed and said to Ms P they should make a cake and fill it with cashews so that they could kill you off and they laughed”.
The father agrees he said this to his son, “Did mum think I was trying to kill her”, and that he thought it was funny. After this event the mother says X became very worried about her which is not surprising. Any thinking parent would understand that X’s security was compromised by seeing his mother in a potentially life threatening event.
The father’s lack of insight into the effect of this frightening event on his son is breathtaking.
On 27 June 2013 X writes a letter to his dad:
Dear dad, I’m so very sorry but I cannot come this weekend. I’m so sorry. You get too drunk and you freak me out in bed when you drink and smoke and you don’t realise it, you stop breathing, and it makes your breath stink and it affects me so, please, stop drinking and smoking or I’ll never come to you.
The father was surprised by this as the child has never sent him an email or letter in those terms.
Due to X’s escalating behaviour described later and significant anxieties the mother is advised by various authorities and professionals that it is better for X to cease time with the father.
The mother tells the child her intention. He responds on 11 July 2013. “Good. I don’t want sleepovers at (omitted). I don’t feel safe. It’s better in (omitted) in the day. It’s scary especially when dad drinks.”
On 21 August 2013 X reports this to his mother, “Dad said he’s finally found a judge that will do exactly what he wants him to do so I’ll be living with dad before Christmas”. This statement accords with the father response to the mother ceasing his time as he sought orders that the child live with him. Only his father could have told him this news.
The father believed that the mother stopping time with the child was a contravening event. That she had no just or reasonable excuse, and that the best arrangement for his son was for him to live with him.
On his own evidence the father has involved the child in knowledge of the litigation. The mother has not. Even when her son said, “Dad’s found a judge”, the mother said nothing despite the child’s poor behaviour towards her in 21 August 2013.
The father denies he said those words but he agrees he had a conversation with X about the previous court proceedings and told him that that the Independent Children’s Lawyer advised the Judge X could not live with him. X said he had told the Independent Children’s Lawyer he wanted to live with his father and the Independent Children’s Lawyer lied to him and he didn’t want to see her because he did not trust her.
For his own selfish reason, the father involved his child who suffers from significant learning and behavioural disabilities in adult issues concerning his care and living arrangements.
On 22 August 2013 the father writes to the child:
I love you very much and can’t wait till you live with me and Aunty Ms P.
The mother says the child cried to her on this day.
On 2 December 2013 the father, again, interferes with the child at school. A child who is struggling to obey the school rules and fit in. The father, thinking only of himself and his needs, behaved in a most unfair and inappropriate fashion. He turned up at the school unexpected. The mother was on canteen duty and saw him. The father walked into the child’s class unannounced and uninvited. X saw his father who he had not seen for many months, panicked and ran out of the class room. Running out of the class room was common behaviour for X when he was under stress and was causing significant disruption for children in his class let alone for X and the school and he were struggling with this behaviour.
He ran to the canteen where he knew his mum was. The mother said she could see he was crying hysterically, shaking uncontrollably. He tells her his dad is at the school. The teacher’s aide tries to get X to go back to his class room but he will not. He runs out of the canteen and hides behind a water tank still crying. The mother attends to her son to reassure him his father is not going to take him away. The father comes around the corner. As soon as X sees his father he begins to cry even more and clings to his mother tightly.
The mother deals with this intense emotional scene created by this self-absorbed man very well.
She tells X, say goodbye to your dad. The father grabs the child and begins to hug him. The father then leads the child by the hand to the car where Ms P is waiting. The mother says she observes her son trying to pull back from the father and the father pulling him forward. Ms P gets out of the car in an endeavour to hug the child. They drive off and the child runs back to his mother crying.
The child is so distressed the mother has to take him home. A child who is already struggling attending and remaining at main stream school. He is unsettled and refuses to let his mother out of his sight for the next few weeks. His father terrified him.
In cross-examination the father would not concede this was the case. The father filed another contravention application after this incident.
Unsurprisingly, X’s behaviour at school becomes even more disruptive and difficult. He refuses to go to school on 11 December 2013. He does not want to go to presentation night in case his dad turns up. X did not attend presentation night because he was upset. The father said he did not attend. However the mother is informed by parents, and children at the school that his father did turn up and others observed him. I prefer the mother’s evidence to the father’s on this issue.
On 31 July to 4 August 2014 the father attends a residential detoxification unit in (omitted) Hospital and begins attending AA. The father asserts at that time that since completing the residential detoxification he has not consumed any alcohol and it is his future intention not to consume. On 8 August blood tests show a drop in critical levels in his blood enzyme. As Judge Altobelli said in his judgment:
The father’s belated and half-hearted attempt to deal with his alcohol abuse reflects poorly on him.
In August 2015 one year later this assessment of the father is still current and I fear will always be current. It is correct that his belated and half-hearted attempt to deal with his alcohol abuse reflects poorly on him.
He made much on 1 May 2015 of having seen Ms T, psychologist, under a mental health plan in relation to addressing his significant defects as a parent and functioning as an adult and that he intended to consult with her in the future but had not made a future appointment. By August 2015 it was apparent he had made no appointments and has no intention of making appointments in the future.
It is precisely the same with his alcohol. The father asserts to the court he is slowly decreasing his alcohol consumption. On the very night of the last court date 1 May 2015 he said he had his last drink. That there were four full strength cans of beer in the fridge so he finished them all, not threw them away, finished them all.
The father has done far too little far too late which is all the more concerning for his future rehabilitation given that he has had the benefit of Dr P’s most insightful and helpful report since 11 May 2012.
The father has had this expert report for over three years. At the date of Judge Altobelli’s interim hearing he had had it for two and a half years.
At the date of Judge Altobelli’s interim hearing in August 2014, he had done very little to address these issues other than two weeks prior to the interim hearing attended a 5 day residential detoxification program.
Since that time he has attended a Bridge Program and says he attends AA. I find he has failed to take on board Dr P’s expert advice in any meaningful or life changing way.
Dr P’s report is scathing of the father and would be confronting to read. This is my relevant summary of that report.
In 2012 the mother described X could be cruel to the animals. He had two dogs, birds and a fish. She has to watch him and he is jealous if his mother gives the animals attention. He can be cruel to his little cousins. He runs away from school when he is overwhelmed. He is 12 months behind in English and 18 months behind in mathematics.
The mother engaged with Brighter Futures to teach her calming techniques for herself and the child which were of assistance.
The mother says the child will sometimes lie and he embellishes stories. He will lie to avoid getting into trouble. The mother found counselling useful. She has undertaken a behavioural management program. When X was four she completed a Triple P Positive Parenting Program. X will amaze her at times with his capacity. For example he was learning the piano, she thought he took nothing on board, and then played beautifully and that he has been taught calming techniques, may not use them for some time but then utilises them successfully.
The mother described that the father drank to excess during the relationship each evening. He behaved very poorly towards the mother and in the presence of the child. The mother said when she and the father lived together if he was in trouble she would endeavour to discipline him. X would run to his father and he would be let off.
The father described his relationship with the mother. The father is a (occupation omitted). He entered university studying (course omitted), completed a degree, but he has lost his job. The father said the mother picked him up when he was (employment omitted). She was flirtatious. The mother had a strong will and he was attracted to it. He judged she would be able to look after herself and not be needy. She became needy. He enjoyed the first two years of the relationship. The mother stopped coming to (hobby omitted). She wanted to wear the father as a trophy on the mantelpiece. She wanted the father to go out (hobby omitted) with her but the father was not interested and said no. This is found at paragraph 142.
That the mother had low self-image, poor body image and regretted not having a better education. He agreed that there were times he did not speak to her for days at a time. I call this the silent treatment. He thought the mother should go to a doctor as her behaviour was not normal. That she was diagnosed with depression and medicated.
That the mother manufactured his alleged violent behaviour towards her and that is a total fabrication, a lie. I accept the mother’s version of their relationship. The father has treated her in a most demeaning and pejorative way and still does.
The father said to Dr P, 148, “As the child grew I was so past her. She had a perineal tear from the delivery and was so poor me.” The father said he was basically a sole parent. He raised the child for the first five years. He bathed, fed, clothed, prepared his meal, fed him breakfast, played with him, read him a book. The mother watched TV. He worked from 8.00 till 5.00 but the rest of the time cared for the child.
Dr P opined that the mother may have been depressed living in this toxic relationship and that the father may well have been the parent most emotionally available to the child whilst they lived together.
The father said at times if the child did something and they were together he would look at his parents and say, “Look, dad, I got her going.” The mother would have a scream and carry on. The father agreed he would smile at times seeing his son’s agitated behaviour and the mother’s reaction. He would take the child away and tell him to be a good boy. The father says his discipline is effective. He says, don’t, then, I told you.
He said that the mother’s half-sister is mad as a cut snake and is really quite awful. At paragraph 157 he opined his son is a healthy, normal, eight year old child. His behaviour is fine when he is with the father. If he came to live with the father the child would have no problems. He would have a proper routine. He would go to a single, stable school, instead of changing every six and a half months. He denied being too loose with discipline. He says he cooks healthy food, does not allow swearing, he has an educational focus, does not denigrate the mother and expects him to respect women.
However the father admitted he told his son that his mother nearly killed him when she fell asleep at the wheel of the car. This is not the behaviour of a parent who wants a child to respect the other parent.
He agreed they could not work as a team and had totally different parenting styles. He would like to have the child with him all the time but half and half is probably right. He needs a male role model. He can teach him things a mother cannot. The mother’s reading is not up to scratch. He has a better education than her and that he is rational, and level tempered.
Dr P asked the father, how would you deal with an order that said you were not to have a drink 12 hours before contact? The father smiled and said, how would they prove that? This is a significant difficulty in this matter. The father will certainly say things that appear to be reasonable and rational when in a difficult situation such as under cross-examination.
When Dr P interviewed the child he was quite provocative with his mother, he was swinging on a chair. His mother told him to stop. She asked him twice and he said why. The mother was calm and firm, explained she was worried he might break his head. He went to swing again and Dr P said, “I think your mother wants you to keep the chair legs on the floor”, and then he stopped. He likes shooting water guns with his dad, having adventures in the forest, finding wombats in caves, playing computer games and watching television. They play the piano together. The child described his father as a crazy head. He will tell you what is not true, “Dad says stuff that’s not true. Mum’s always bossy.” He said he would mostly want to live with his dad, paragraph 255, “because he gets me stuff like lollies and junk food, not, healthy. I made a mistake. Mum does the wrong food. Dad told me I would make the decision about who to live with.” At paragraph 271, after observation with his father he cried and said, “I hate it when he goes”, and he, “loves his father nine trillion, ninety billion and ninety thousand universes.” He loved his mother, “five centimetres from the ground”, and he loves them more since they have separated and when they were together he loved dad and hated mum.
Dr B, paediatrician, diagnosed the child as having oppositional defiant disorder and believed it may be related to separation anxiety to the mother because the child takes on the role of her protector. The mother is a competent, caring parent. The mother sets boundaries and she is mindful of the child’s needs.
Dr P has a conversation with a school teacher on 2 May 2012 and reports:
He has good and bad days. Well below stage level in his learning. If a task is challenging he becomes frustrated, makes mistakes, he doesn’t cope. Doesn’t cope well with change. He likes structure. He can be defiant. He can run out onto the road. He was happy when the school said they would send him home if he was badly behaved so now they deal with him at school. He doesn’t seem sad or worried and plays with younger children better than children of his own age. Snap pencils and eat lead. Good reader and enjoys reading but struggles with writing. The child is very well cared for and has healthy, nutritious lunches.
The father has not paid one jot of child support since separation and is in arrears of $4000. This was another matter he said he was addressing at the hearing on 1 May 2015 by paying $100 a month towards arrears. That simply has not come to fruition. He will never support this child. He does not believe the mother deserves it. The mother described a domestic violent controlling relationship with the father and I accept unreservedly her evidence. She was a witness of truth. She did not embellish. She made concessions when required and her story and her evidence had a distinct air of truth about it.
The father was loquacious and expansive in his answers with an air of self-aggrandisement. He waxed lyrical, minimised any of his faults or poor behaviours and showed little insight into the impact of his poor behaviour on the mother and child or the impact on them of his significant addiction to alcohol. The father had no understanding of the appalling manner in which he had treated the mother. Criticising her for what he said was the child’s poor diet, poor clothing when he had not paid one jot of child support.
Ms P, on the other hand, was a witness of truth and had insight. At the conclusion of her cross-examination she apologised sincerely to the mother for the manner she had treated her and that she had blamed the mother for things which under cross-examination she now realised were grossly unfair.
The father’s lack of insight was starkly brought into relief when he called his son a normal happy child in 2012 and repeated this same statement in cross examination in 2015. X is not a normal child. He has significant dysfunction, both, behaviourally and in learning. The father does not know who the boy is. He sees the child he wants to see not the boy he is.
Only the mother has the insight, understanding and the knowledge of her son, his strengths and weaknesses and the capacity to parent him. Her capacity to parent is impressive. The mother is a most impressive parent. Her entire life has been devoted to the care and education of her son and he is making great strides in home schooling. Sadly not spending any time with his father has benefitted him enormously in being able to focus on his needs and not be anxious about his father.
His father has been counter-productive to his son’s progress in maximising his capacities. The evidence supports a finding that having his father in his life is contra-indicated to making an order in his best interest His father’s behaviour has bordered on abusive. I accept the father can see none of this.
The tension however is that X loves his father dearly. The mother referred to this with Dr P, and Ms M, she referred to this in her affidavit and acknowledged same in cross-examination. Children often love things dearly that may not be good for them or in their best interest.
Whether the father agrees or not his behaviour has, and continuing, not been in the child’s best interest. It has been destructive to his son’s progress and emotional health.
Paragraph 71 of Dr P’s report:
The mother said she picked her son up before the interview. He had been spending time with his father. The child said, “We’ve got a meeting in Sydney, mum. I’ve got to tell the man that I want to go and live with dad and Ms P’s going for that little bit of proof.”
The mother acted appropriately at this time and said to him that this was not his decision; it was a decision for the judge.
The mother’s concerns of the father’s drinking are supported on the evidence. The father may genuinely have an intention not to drink but he cannot carry it out. He does not believe he has a problem. If he did in light of Dr P’s report and Judge Altobelli decision he would have done something about stopping drinking years ago.
Despite in cross-examination agreeing he had problem and that drinking was not good for him I detected no sincerity or epiphany or realisation. I saw no light globe turn on. He gave the evidence he believed would satisfy the court namely he is aware he had a problem, is on a programme to reduce his drinking to abstinence and is making progress to that end. He was speaking as if reading from a play or a rehearsed piece.
He exhibited no chagrin for his poor treatment of the mother and unjustified criticism of her. For the trauma he had caused his son at school and school events such as the swimming carnival, causing the mother to suffer a possible life threatening anaphylactic reaction to cashews.
There was no acknowledgement or recognition of the destructive nature of his drinking upon his relationship with the mother and the son. No understanding or recognition of the appalling manner by which he treated this woman, running her down, minimising her to his son, undermining her authority in parenting. I find the father would continue in this behaviour today. He has the capacity to so do and would if so motivated undermine the mother’s parenting at every turn despite the mother being his sole emotional, psychological financial and educational support. Not only does the mother receive no assistance from the father but his presence is a positive interference to her parenting of X.
The father told me what he thought I wanted or needed to hear as he told Judge Altobelli. Between this hearing and Judge Altobelli’s hearing the father has done nothing of any consequence to address a long standing, significant issue which requires more than one detox program in (omitted) and a Bridge Program namely consumption of excessive alcohol.
Dr P was clear the father needed to carry out the following in relation to his alcohol consumption.
Abstain from alcohol for 12 months. The best the father has done is abstain for 2 months. He must go through a sustained program of alcohol education and rehabilitation which may take 12 months. Attend at a residential rehabilitation program for three to six weeks. Follow that programme with an intensive rehabilitation program and be an outpatient for the next two years attending at the frequency determined by the therapist. The father could not even make a second or any future appointments with a psychologist as he told me he would at the end of the third day of the hearing.
Dr P’s recommendations were as follows.
The child had a strong and positive relationship with his mother and was secure in her care. The mother set proper limits and boundaries for his behaviour and he was impressed by the manner in which the mother sensitively and with respect engaged with him to minimise his vulnerabilities by assisting with homework, for example. Dr P was most impressed with the mother’s well above average, highly skilled parenting capacities. He was impressed that X feels secure enough in his mother’s care to express any distress and behave poorly, as he does at times, and because the relationship is important to him he will apologise to his mum when he calms down.
Dr P observed that the child can disrespect her and push the limits. Dr P says that during the latter part of the relationship it is probably true the father was engaging with the child when the mother was depressed and disassociated with him and that the mother/child relationship has grown in strength since separation. This is due to him not being daily exposed, to the father’s disrespect and disdain for the mother and the undermining of the mother/child relationship and her mental health has improved.
Dr P agreed that it is probably true the father did the bulk of the parenting for the child when he was not at work in pre-school years and that his relationship with the mother was so poor he put his focus and energy into his son. The strength of their relationship is the authority he has over his son. The child submits to his firm voice or hand and that degree of authority and behavioural respect gives the child security in his father’s care. He has been able to teach him piano taking on that role and would be very effective engaging in regular homework and the like. Although the father would not have been available to his son due to alcohol affectation the mother was always there so the relationship was not fractured.
He observed no sexualised behaviour between the father and child. Paragraph 313:
I am concerned that the father has allowed, and has promoted, through modelling and through word a situation where the child takes on a mindset of valuing the father over the mother and colluding with the father against the mother. The father has openly colluded with the child in disrespecting and undermining the mother’s authority over the child. He has developed a disdain and a lack of respect for the mother relatively early in the relationship, showed this in his behaviour towards the mother, for example, in his turning away from her, declining to speak to her, ignoring her, or even enjoying her distress, at undermining the mother’s discipline of the child.
The father’s defence in having told the child the mother almost killed in the car was to say that it is true. That is not good enough and is the father’s needs overwhelming his child’s best interests.
Dr P reported that the father and child found a certain camaraderie and intimacy through collusion in opposition to the mother and the child winks at the father before winding her up. Examples he cited were.
They keep playing games when it is time for him to get into the mother’s car. They walk away from the mother’s friend at changeover; walk into the surf when the mother’s friend is looking after the child at contact, ignore flags at the beach, stating that that the mother is a wowser and that the father is the fun parent.
Dr P said that the child has some neurological, developmental difficulties which ADHD and probably some intellectual learning or language difficulties. He was diagnosed with ADHD in 2009 by Dr D and this was supported by counselling, ACR testing by the school counsellor, Ms V, in 2010 and by his psychologist, Mr T, in 2010 and Dr P’s observations supported their diagnosis.
Although he has some cognitive learning and/or language problems he does not have autism or Asperger’s. He has characteristics which overlap as with all children as he has a neurodevelopmental disorder and he is naughty, oppositional and defiant. He has negative behaviour towards adults in authority. It has become habitual and significantly problematic. Dr P said his father’s behaviour was a significant cause of this poor outcome.
Dr P said the child’s oppositional defiant behaviour has developed out of neurodevelopmental vulnerability combined with frustrations inherent in his learning difficulties, his exposure to parental conflict, his father modelling opposition in disrespectful behaviour patterns to his mother, and on her earlier weakness in dealing with his disrespect. This behaviour is most problematic at school where he is challenged because of his learning difficulties.
Dr P said the mother’s mood disorder, secondary to a brain injury, is well-controlled at paragraph, and the marriage would not have assisted her in this at all. Paragraphs 324 and 325:
In my view, the mother’s distress and reactivity in the relationship with the father was primarily due to the emotionally abusive or withholding nature of the father’s behaviour towards the mother interacting with the vulnerability created by her mood disorder. Now that the relationship’s ended her mood’s improved, and her ongoing stability’s good.
The mother’s functioning and capacities have come along in leaps and bounds since separation and she is doing a better than average job parenting her son.
At paragraph 329:
The mother has shown a consistently strong attitude to the child and responsibilities of parenthood. She’s sought assistance for herself and her child whenever it was offered. She’s attended appointments, followed through with advice, a new school, she’s committed to her son, focused on his welfare, and maintaining an adult stance despite her son being hostile, aggressive and provocative to her. She’s well able to meet his needs – basic needs as well as intellectual needs. The mother has been able to provide a containment for his impulsive, aggressive and defiant behaviour.
The child could model himself on his mother to assist in his behaviours with others because she is a thoughtful, caring person who is respectful of authority figure. The father has a diagnosis of alcohol dependence with physiological dependence of moderate severity, which may be in sustained partial remission.
He’s had a high range PCA in 1994, and his high consumption of alcohol would have exacerbated marital tension. The father’s insight into his significant dependence on alcohol is poor. He appears never to have accepted it is a concern or considered or sought treatment.
Unfortunately I find the father is still in this position.
Despite his efforts to convince me he now understands his drinking it is a concern, I do not accept it. Although he had cut down his drinking to four to eight standard drinks a night, it was still harmful. He now asserts he has been alcohol‑free for two months, but his testing in fact did not support his assertion because his liver enzymes were higher from his most recent test than they had been in 2012.
Out in the real world I have absolutely no faith whatsoever that this father will do anything other than what he has done in the past namely:
a)Continue to drink as he sees fit, be it four light beers, no beers, or 12 full strength beers;
b)Undermine and denigrate the mother as a parent to the child; and
c)Use his son as a pawn in his game against the mother.
I find he does not know or understand this boy and his special needs and has little capacity to fulfil his child’s higher level emotional needs.
Paragraph 335. Dr P says his alcohol abuse at times may make him unavailable and be disinhibited when intoxicated and his son may role model him later in life.
This is particularly a risk for a child with neurodevelopment problems who is impulsive and may not be gaining success or reward from more pro‑social pastimes in adolescence.
Paragraph 339.5:
The father did not have a personality disorder but did have some personality traits which disrupt his functioning, and in particular his parenting.
Paragraph 341:
The father had some antisocial and narcissistic personality traits. He tends towards a pattern of disregard for and violation of the rights of others, and need to feel superior to others and to be admired or looked up to by others, and a lack of empathy. The father’s antisocial behaviour is not of the hot type, but rather of the cold type. Purposeful, controlled, cruel, purposeful or deceitful behaviour.
He does not appear to value relationships or to understand that others value relationships. He has a utilitarian approach to relating to others, with an eye out for what he can gain. For example, judging that the mother wanted to be with him because he was a trophy on her shelf, whereas she wanted intimacy and a shared life. He judged the mother’s friend’s mother as attention‑seeking if she was offering to help with contact. Judged that the mother was attention seeking when she went for parenting counselling.
There was no consideration she was motivated to change or maximise her parenting for the benefit of the son. He responded to mother with cruel and disrespectful behaviour when she became dependent upon him. He feels demeaned and belittled by constraints applied by the needs of others, and will oppose those constraints on principle. He would not tell the mother where he took the child and would take no notice of any arrangements she made for the child to spend time with her family. The father finds affirmation in confirming his power in reference to another’s weaknesses.
At paragraph 345 he give examples.
When he was silent to the mother, laughed with the child in the child’s attempt to wind her up. Walked out into the surf with the child as the mother’s friend stood on the edge of the water. He has strong behavioural control and is capable of very purposeful presentation.
I observed a purposeful presentation in the witness box:
There is marked contrast between the father’s cruel, provocative and disrespectful behaviour towards the mother’s friend and her mother – because he saw no value in those women – and his considerate, warm, and respectful behaviour towards the (omitted) supervisor because he saw good reports from them. The narcissistic personality can be good for this boy because it creates an energetic, busy, creative, idealist, great dad-son dyad sustainable in the long-term on part-time basis.
Dr P said he took his role of parenting seriously and was very committed and consistently valued the child, and has prioritised him. However he has not been able to prioritise X sufficiently to undergo a proper sustained course of alcohol use reform, and that is still the case today.
The concern, Dr P said at paragraph 351, is if the father took on the majority of day‑to‑day care for a child with some neurodevelopmental behavioural difficulties, the father may not be able to sustain his positive engagement with the commitment to the child if he is not receiving the positive regard he needs.
That is, if his son does not find him fun, terrific, and great, but boring, annoying, and irritating because he is making him do his homework then the dynamic may shift. Dr P said the father could resort to his cruel or dismissive behaviours with his son, as he did with the mother. Dr P said another fundamental need for X to develop is at paragraph 354:
Empathic engagement to learn to manage his emotions. Modelling for that can only come from his mother. The father described having colluded with the child in the planned provocation of the mother. He colluded with the child in disobeying and disrespecting the mother’s friend. These behaviours might be immaturely benign in a neuro-typical well‑behaved child, but they are potentially very developmentally disrupting to a child who has neurodevelopment and behavioural problems.
Ms M’s report recommended that if the Court determined X's wellbeing would be compromised if he was to spend time with both parents, he live his mother and have no contact with the father. That is the position the mother took.
If the Court was of the view that he should spend time with his father, it would be one day a month, and take place in (omitted), and for some school holiday period. There was no recommendation he live with his father or spend significant and substantial time.
Ms M reported at paragraph 77:
The father has failings as a parent and role model, but given X loves his father a great deal and longs to spend time with him, this option – that is no time – may be detrimental.
That is the nub of the issue at the end of the day. Balancing the risk of harm in X spending time with his father and not spending time with his father.
There is no crystal ball in assessing these competing risks however the past may well be the most accurate indicator of the future.
Dr H, who knows this boy best and of whom Judge Altobelli was somewhat critical as he had opined no time with his dad for 12 months, and was focused on therapeutic intervention for X got it right. This boy has spent no time with his father since Judge Altobelli correctly made orders to suspend time on 25 August 2014. He has spent no time with his dad for 12 months.
And what has his progress been? Excellent. His mother has engaged him in home schooling, and I was most impressed by her evidence on this issue. The effort and energy she puts into this boy’s home schooling and how well he is progressing is most pleasing. The mother hopes to enrol him in mainstream school at high school which if not in 2016 will be in 2017.The mother and X live in an area where there is about 30 parents involved in the home schooling program, and they provide a community and support for each other.
This is a huge commitment and effort from the mother which not only does the father not support emotionally or financially but has criticised the mother for.
What Dr H says in his report dated 8 August 2014 is as follows.
Ms M had this report when she prepared her family report. Dr H says his opinion is based on information obtained from the following sources: written referrals; face-to-face and telephone conversations with Ms G, Brighter Futures caseworker; letters from Dr B, X’s paediatrician; observations of X at school; face-to-face and telephone conversations with his school teacher, and principal, and school counsellor; face-to-face assessment and treatment of X from June 2012.
He has known and treated this boy a long time. The mother says X and he have an excellent relationship, and he will often ask to ring Dr H to chat to him about things.
These sessions included joint sessions with X and the mother, as well as with X alone and the mother alone. He notes he did not see the father or his partner.
When he was initially assessed in 2012, X demonstrated poor understanding of limits, safety, and social boundaries. He had used coercive sexualised behaviours to lure a child much younger than him. Cruelty to other children, his mother, and animals. He was observed crowding his mother’s personal space, seeking comfort and intimacy with little regard for her personal comfort or her verbal and non-verbal responses.
He had refused to wear underwear for four years. Constantly touched his genital area, at times showing pleasure in his touching, and stimulation of his genitals whilst moving around. When people voiced concerns or were discomfited by this behaviour, he smiled or laughed and was non-responsive. Dr H described him as a friendly, outgoing boy, who enjoyed being in the company of others. He showed disregard for societal norms, and demonstrated significant struggles with friends, and had limited friendship‑making skills. He made them quickly but lost them quickly.
He often referred to revenge and getting them back when discussing peers. For example, getting angry and hurting his nephew. He was cruel and planned retaliation when he thought he had been slighted or victimised by friends. He had little sense of empathy or understanding of the other. These are the same characteristic traits of the father, described by Dr P. This boy has many characteristics of his father and many of his personality traits, but he does not have his father’s intellectual capacity. The school reported concerns about him biting his hand until it bled, picking at himself with small objects, and eating pencils.
Doing things with no thought for others, incidents of retaliation towards other students; he was not sorry; did not show remorse. He disregarded the school rules. He pursued sensory‑seeking behaviour. He had no regard for his personal safety, left the classroom without permission, and found it difficult to follow instructions.
In 2014 the report is as follows. He now wears underpants. He has decreased his use of violence, and is endeavouring to understand other people’s point of view. They have a number of animals at their home. He is treating these animals; chooks, dogs, goats, pigs in a kind and appropriate manner. He takes the responsibility to look after them.
Dr H noted the mother engaged in a Circle of Security program to build on her attached, focused parenting and that she has had to do a lot of reparative work with X. X told Dr H that he is concerned when he visits his dad overnight because his father is drunk, and he is drunk on phone calls. He is always drunk. He is concerned about the amount of alcohol he drinks. He stayed awake to make sure he does not drink too much and he would not go too crazy. He is worried about his father being able to breathe. His father would not listen to him when he did not want to sleep his bed:
Dad sleeps in my bed because his bedroom is too messy and he has stuff all over the bed. I tell him to clean it up but he doesn’t want to because then he could not sleep in my room.
He talked about his dad encouraging him to break boundaries, such as taking some coal from the museum home with him. This could be seen as a grooming of X to blur boundaries. That was an issue for Dr P who opined the father had poor boundaries with his son.
The child described the June 2013 incident when the father attended his son’s school without warning. The child bolted, he was frightened, burst into tears, ran out of the classroom calling to his mum, “Dad’s here Mum. My dad’s here.”
He ran and hid, and cried and cried. His father forced him and held his arm and forced him to go to his car. Dr H says that the child’s reaction was a trauma response, consistent with the response associated with post-traumatic stress disorder.
X’s school had previously been a safe place for him, one where he did not need to be concerned about his father being present or having an influence. X spoke about never wanting his father to visit the school again. That he did not like showering with his dad, and he confirmed that it was his father who told him about masturbation when he was nine.
In mid‑2013 the mother and child presented as very distressed. This was the Rocky Road cashew nut incident, when the father had encouraged the child to give the mother some, saying there is a surprise in it for her. The child felt distressed over this event, thought it was his fault, and said:
My dad hates my mum. My dad wants to hurt my mum. My dad would poison her. He wants to kill her.
The mother and child were both frightened. X said he had spoken to his dad about this, and his father laughed and was joking about it. He felt heartbroken, destroyed, lonely and scared. He then became fearful his dad might take him:
Dad won’t stop at anything to get me.
He recalled an event in 2008 when his dad took him and put him in his car, and the police were called. From mid-2013 X’s behaviour at school deteriorated. He was in a fight and hit a boy’s head to the ground.
X says he loves his dad and said the same to Dr P and Ms M and wants to spend time with him. He told Dr H his father was bombarding him about the Family Court matter a finding I have already made.
X says he does not feel safe with his dad. That once he and his mum were arguing about limits, he said he wanted to live with his dad but he did not really mean it. Dr H says:
I’m of the opinion X has experienced severe attachment trauma, in which a primary attachment figure was either the source of trauma or perceived as unavailable or rejecting. His neurodevelopment has been profoundly impacted due to his ongoing contact with his father. X’s interests would be best served by cessation of all contact for a period of no less than two years.
X was re‑traumatised by his father’s visit to his school in 2013, as well as by his ongoing contact visits. X does not feel safe in his father’s care, even with Ms P, and his father continues to drink alcohol to excess. That the mother is deeply committed to his needs:
X has been slowly adopting a less disorganised or insecure relating style in the period I have been involved. And this can be expected to increase without the insecurity, poor boundaries, and conflict that his current contact with his father brings. He has made pleasing progress since 2012. He is developing insight into his own behaviour and relationships within his family. He has developed emotional literacy, and a wide and thought‑out emotional vocabulary that he can apply to many settings. He still thinks primarily in a concrete way. He is only beginning to decentrify, that is, move beyond his own ego. He still reverts automatically to concepts of revenge, but he is able to think beyond this and use some empathy.
Dr H was concerned that X may again identify with the behaviour and values that he has described his father as having and that if his current behaviour is not supported, as it has been with his mother, the trajectory is possibly that X may not develop empathy, adhere to social values and societal rules and laws, and may experience other antisocial problems.
Dr H said that the father’s ongoing blurring and crossing of interpersonal, physical, and sexual boundaries, as well as societal boundaries, with X is a critical factor and cause for alarm. It is even more critical for X as he enters adolescence – where children begin to develop their own sense of self, and work towards identity formation – that contact with his father should cease to allow X to develop his own sense of self.
The Independent Children’s Lawyer’s submissions were that time with X and his father recommence in about May 2016. That is about 18 months after time was ceased by Judge Altobelli.
There was not one thing in the father’s evidence that satisfied me he, in any way, understands or acknowledges the significant difficulties he has created for his son or the mother of his child. The opening question was:
Have you looked at Dr P’s report?---I gave it a cursory glance.
That opening comment is cause for concern because Dr P’s report is insightful, detailed, and shows a clear pathway for the father, the child, and the mother. Yet this man gave it a cursory glance. It was fanciful to suggest in any way, shape or form that Dr P’s insightful and clear report was followed by the father it was not. He said:
It was clear in the proceedings I needed to do something about my alcohol dependence.
The facts are it took three years to do something about it and what he did was very modest indeed. One 5 day re-hab residential course where he lied about cannabis use to be accepted, asserted attendances at AA and completion of a Bridge programme.
When he presented to the 5 day live in re-hab programme his blood alcohol reading was 1.148. Three times the legal limit for driving. He said he lied about how much marijuana he had smoked. He had smoked some, but less than what he said, which one cone a day for three weeks was. He wanted to fit in with the other co‑dependency patients. That evidence is astonishing. I cannot understand it. He continues to drink alcohol at a level I am not certain of as I do not accept his evidence on this issue.
He said he had told The Bridge Program people the truth, but he did not tell them about his PCA in 1994. He just said he did not think about it. He said the aim of The Bridge Program was to reduce alcohol consumption, then become abstinent.
The programme has not worked for him as he is not abstinent. I find he is not abstinent yet.
The father said he did not remember the mother’s allergy to cashew nuts and I do not accept that evidence. He agreed that he joked with his son about the cashew nuts and the mother’s reaction. He demonstrated no understanding what this event meant for his son. He shows no insight into the nature of this child’s relationship with his mother and does not value that all important primary relationship or what is child can cope with emotionally.
The father showed no chagrin or embarrassment when he criticised the food the mother gave the child, when he was not paying a skerrick of child support.
He agreed he spoke to his son about these proceedings. There is absolutely no justification whatsoever for that behaviour. This is the father’s evidence at paragraph 41 of his affidavit of 18 March 2015: The child says:
Can I come and live with you? I fricking hate mum.
The father says:
We’ve been through the court system already, X. You had an ICL who advised the judge not to let you live with me.
So she lied to me. I told her I wanted to come live with you, Dad.
Well, sweetie, I was there when she told that nice man, the judge, not to let you live with your dad.
X said:
I never want to see her again. She lied to me. I don’t trust her.
Why would you engage in this behaviour if your main concern was to best parent your son. You would not. However if you wanted to create problems for his mother and use him as the weapon you would behave in this fashion.
The mother describes an incident at paragraph 112 of her affidavit. This occurred in about 2009. Although it was some time ago it was potentially very dangerous. The child got away from his mother and scampered to his father near a road. The father did not admonish his son for leaving his mother’s hand and showed no remorse for the possible consequences.
Paragraph 151 of Dr P’s report:
You didn’t discourage your son from misbehaving with his mother, yet you’re saying you were the superior parent.
The father said the child did not appear troubled. That is not addressing the issue that the child was potentially at risk from running onto a road and his dad should have admonished him for his naughty behaviour. He ran onto the road because the father encouraged him to get away from his mother as he has continued to.
He would not concede his poor behaviour at the school concert or at the swimming carnival. Had some story which I simply do not accept about taking the child to a car or just wanting to talk.
I find the father creates difficulties for his son by encouraging him to go against school rules, out of the pool area when the carnival is on, creates scene, causes his son and mother distress and then says the child acted this way due to the mother’s poor parenting. This is sinister behaviour and at odds with empathic or reflective parenting.
His action in traumatising his son at school in June 2013 was most unfortunate and precipitated the child’s increasingly poor behaviour at school. His actions and motivations were all about him. Although when pressed he said his behaviour was inappropriate on reflection I detected no real empathy or sincerity in his tone. He said what he thought I needed to hear.
The father was asked what X’s cognitive abilities were:
He’s a happy, normal kid. Never done tests.
This was an extraordinarily ignorant thing to say for a parent who believes he is the superior parent. His child is not a happy normal kid. The father said:
I thought X was traumatised by being separated from me as a primary carer. Moved around homes and schools, and I thought that’s why he suffered post‑traumatic stress syndrome.
That is not what Dr P found. It was the father’s behaviour towards the mother, his alcohol dependence, and his lack of support of the mother’s parenting role, and diminishing her in the child’s eyes. The father has had 3 years to reflect on those correct assessments yet has not.
The father would not agree his son suffers from ADHD yet he does. He said:
I do not see the behaviours in X that others, including teachers and psychiatrists, see in him. I do accept he behaves that way with them.
The father does not challenge this boy. Dr P said the father could control him, but the father does not do any of the hard yards parenting with him. Does not do schoolwork, homework, get him to brush his teeth He could not get him to wear underwear. His father could not achieve any of these things with him. Only his mother has that capacity.
He said:
In my opinion, X is intellectually at his age. He is quite smart. He is a good problem solver, and he has got a good vocabulary. Emotionally he is a bit younger, but he is very happy, affectionate, and he does not have a short fuse.
Annexure E of the mother’s affidavit of March 2013 and ICL 2 is the report of X’s behaviour and intellectual level when he was at (omitted) Public School dated February 2013 and for all his schooling. These documents describe a child struggling intellectually, behaviourally, exhibiting problematic social interactions and belies the father’s glib evidence. The father did not describe the boy X is rather the boy he sees him to be.
The father would not admit he had a dependency on alcohol. He said it is more a habit:
Abstinence could start this afternoon.
What stopped you?
I’m weaning myself off.
He was asked why had not he been able stop given his time had been suspended because of his alcohol consumption. He could give no answer to this.
He then said :
Alcohol is the central issue, and so I will give it up. I’m getting closer to abstinence every day.
Meaning what?
It’s a psychological habit. I could have lied and said I wasn’t drinking. I’m being honest and telling you my plan.
This is similar to Dr P observation when he smiled and said, “How would they know?”
I don’t drink more than three drinks, so on average it’s less than three. I have two alcohol‑free days a week since The Bridge Program in September 2014. It was about a three month program.
He was questioned:
How could the Court be confident that you’re going to be abstinent tonight or tomorrow?
His response was:
I don’t know. Ask the Court.
He was asked what motivated him to go to the detox program in (omitted). He responded:
It would show some effort to the Court to deal with alcohol, and give me more time with my child.
On 11 June 2014 the father filed an affidavit attaching a report dated 2011 by a Dr F, which said:
Mr Webber does not present as an individual who is dependent on alcohol use or has sustained evident compromise because of his alcohol use.
The father then said:
Given Dr F’s opinion I did not present as individual who engages in problematic alcohol abuse, I don’t need to have any further testing.
This opinion is of no assistance to the father and he would do well to dismiss it.
This evidence makes it clear the father did not think nor does he think he had or has a problem. He was just addressing a procedural thing. “If I go through the motions – if I carry out what I’ve been told – some miniscule amount of what I’ve been told to carry out – then I’ll get more time with my child.” It does not work that way.
Then he said:
I was being delusional about my problem, and it came to my consciousness re my alcohol problem during the detox program.
He has done very little since the detox program. He has not been able to attend a psychologist nor becoming abstinent.
One of the big supports for X is Dr H. The father would be unable to support his continued attendances with him and has written him an offensive email. Dr H said if there is to be contact beyond this point it must be carefully planned and supervised, and no overnight contact as did Ms M.
This is a risk assessment case. The law is not a relationship of a child with a parent at any cost.
I will now follow the legislative pathway set down in Goode & Goode [2006] FamCA 1346.
The first task is to determine whether I rebut the presumption of equal shared parental responsibility.
The High Court tells us in MRR & GR [2010] HCA 4 that the making of parenting orders is a matter of practicality and reality and not what it should be but what it can be having the child’s best interest always at the forefront of any decision.
I find the father perpetrated domestic violence on the mother and has treated her in an abusive and demeaning fashion during the relationship and post the relationship.
The father has no capacity to make a decision that puts his sons needs first his needs will always overwhelm his son needs when push comes to shove.
Secondly if the mother suggests any course he will instantly reject it such as home-schooling even if that is the best outcome for his son.
The father has been instrumental in his son’s inability to continue at mainstream school and provides modelling to disobey rules and societal norms which is most dangerous for a child with the neurological deficit X experiences.
The parents have no capacity to communicate.
For these reasons I will rebut the presumption of equal shared parental responsibility and the mother will retain this solely. I am confident that she will continue to put her son’s needs above her own on every occasion and is the only parent who can maximise his potential.
Having so rebutted the presumption I need not consider equal or significant and substantial time.
Looking at the section 60CC factors to determine whether I order time or what time order to make.
X benefits from a meaningful relationship with his mother she is his closest emotional attachment figure.
The benefit he receives from his relationship with his father comes at cost to X both to his own functioning and his primary relationship with his mother.
His father de-stabilises his emotional functioning by demeaning and diminishing his mother to him, he creates anxieties in his son by continuing to drink alcohol, attending at his school without warning, encouraging him to disobey rules and blurs the clear and important boundaries his mother is setting for him. His father cannot support his mother’s parenting of him at any level.
X’s wish is to spend time with his father however he does not want overnight time and does not always feels safe with his father. I accept he wants to spend time with and see his Dad and may well act out if I do not make positive orders. I can place little weight on his wishes due to the consequences for him in spending time with his father.
His mother is well placed to handle his outburst and emotions and Dr H is a significant support to X and his mother in the event he is distressed that there are no orders for him to spend time with his father.
The mother is the only parent who demonstrates insight into her son’s needs and has a capacity to fulfil them. The father is seriously compromised as a parent and lacks empathy with his son and his needs.
The mother supports her son’s educational needs. The father has compromised this important role due to his need overwhelming his son’s needs.
The father has abysmally failed to support his son financially and has left this to the mother and the public.
The child has a strong, nurturing and trusting relationship with this mother. He has an anxious relationship with his father and does not always feel safe in his care. There is a strong desire to spend time with his dad but the relationship is not deep and lacks real meaning as his father does not see the boy he is only the boy he wants to see.
The mother can, has and will continue to support the child relationship with his father. The father is devoid of this capacity.
If I make orders for X to re-commence time with his father this will be a significant change for him. He has not spent any time with him for 13 months and his progress is pleasing, There is a high risk and strong probability that spending time with his father will de stabilise the child and undo all the good and hard work his mother has put in to him which is now bearing fruit.
Given X's special needs which are being met at a high level by his mother, the almost inevitable disruption and destabilising effect that will ensue if the father is again able to influence his son’s behaviours and attitudes to his mother and authority generally I find the price X will pay in spending any time with his father is too high and that his pleasing but slow progress in his own functioning and reaching his education milestones is at real risk.
I am not satisfied the father accepts his culpability in this matter, is capable or desirous of changing his wrong beliefs and attitudes and I do not accept he is able to protect his son from his erroneous and poisonous views of the mother and authority at large.
As such I find the father is a risk to X which risk outweighs any benefit he may receive from spending time with his father or having a relationship with him.
I will not make any order for time nor make an order prohibiting the child spending time with his father. I will leave it up to the mother to determine if and when and how X will re connect with his father when he is ready and can hold his own against his father’s poor functioning , attitude to herself and his skewed world view.
If X begins to idealise his father as Ms M opined he may X and Dr H will work through that process with the support of his mother. His mother has only his best interests at heart and I am satisfied she will ensure the child is able to re-connect with his father as she has done with X writing post cards to his father which his father enjoyed receiving and X enjoyed writing.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Associate:
Date: 3 November 2015
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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